State v. O'Rourk

• Decision Date: 10 November 1892
• Citation: 35 Neb. 614,53 N.W. 591
• Parties: STATE v. O'ROURK ET AL.
• Court: Nebraska Supreme Court

35 Neb. 614

53 N.W. 591

STATE

v.O'ROURK ET AL.

Supreme Court of Nebraska.

Nov. 10, 1892.

Syllabus by the Court.

1. Under the provisions of section 241 of the Criminal Code, any person of 14 years of age or upwards who shall on Sunday engage in sporting, etc., shall be fined in a sum not exceeding $20, or be confined in the county jail not exceeding 20 days, or both.

2. Playing baseball on Sunday comes within the definition of “sporting,” and renders the persons engaging therein liable to the punishment provided for in section 241.

Error to district court, Lancaster county; HALL, Judge.

Tim O'Rourk and others were arrested on a complaint and information charging them with a violation of the Sunday law by playing baseball. The case was submitted to the county judge on a stipulation of facts, and he discharged the defendants. On error to the district court, the judgment of the county court was affirmed. Leave was obtained to file a petition in error in the supreme court to settle the law of the case. Judgment that the district and county court erred in holding that defendants were not liable, and in dismissing the action.N. Z. Snell, Co. Atty., Frank W. Lewis, and J. R. Webster, for the State.

Chas. E. Magoon, for defendants in error.

MAXWELL, C. J.

In April, 1891, the county attorney of Lancaster county filed in the county court of that county a complaint as follows: “The complaint and information of James G. Guild, of said county, made before me, Willard E. Stewart, county judge of said county, on this 30th day of April, A. D. 1891, who being duly sworn on his oath says that Tim O'Rourk, Chas. S. Abbey, Clarence Baldwin, John O'Brien, Clarence Conley, Wm. Goodenough, Fredk. Ely, Chas. Hamburg, Jewett Meekin, Chas. Collins, John Cline, Henry Raymond, John Rowe, Jesse Burkett, John Irwin, Owen J. Patten, Philip Tomney, Park Wilson, Emmett Rogers, William Darnbrough, each of said persons being of the age of fourteen years and upwards, on the 26th day of April, A. D. 1891, said day being the first day of the week, commonly called ‘Sunday,’ at said county of Lancaster, did unlawfully engage in sporting, and were found sporting and engaged in the game commonly called ‘baseball,’ at Lincoln Park baseball grounds, an inclosure where the game or athletic sport commonly known as ‘baseball’ is played and performed as an exhibition by professional players to spectators, who are admitted to such exhibition for a fee, and rewards by such spectators paid to view the same, there being then present about thirty-five hundred spectators at the time aforesaid and place aforesaid, viewing said athletic sport; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Nebraska. Affiant further says the said Tim O'Rourk, Chas. S. Abbey, Clarence Baldwin, John O'Brien, Clarence Conley, Wm. Goodenough, Fredk. Ely, Chas. Hamburg, Jewett Meekin, Chas. Collins, John Cline, Henry Raymond, John Rowe, Jesse Burkett, John Irwin, Owen J. Patten, Philip Tomney, Park Wilson, Emmett Rogers, William Darnbrough, each of said persons being of the age of fourteen years and upwards, on the 26th day of April, A. D. 1891, said day being the first day of the week, commonly called ‘Sunday,’ at the county of Lancaster, at Lincoln Park baseball grounds, an inclosure where the game or athletic sport commonly known as ‘baseball’ is played and performed by professional players, employed and hired for and during a fixed period of six months then current, at a fixed and agreed reward and monthly salary, to pursue the vocation of playing said game of baseball for the entertainment of spectators for hire, did unlawfully engage in common labor, to wit, performing the game or athletic sport commonly known as ‘baseball,’ for hire, the same being their regular employment and vocation, in which said employment and vocation they were then and there found, such common labor not being a work of necessity or charity; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Nebraska.” The parties were thereupon arrested, and taken before the county judge for trial.

The attorneys for the parties entered into an agreement as to the facts, as follows: “It is hereby stipulated and agreed that this case shall be submitted to the above-named county judge for trial and determination upon the following agreed state of facts, viz.: “ First. On Sunday, the 26th day of April, 1891, between the hours of 3 o'clock and 5 o'clock P. M., in the county of Lancaster and state of Nebraska, the defendants played a game of baseball. (2) On said 26th day of April, 1891, each of said defendants was over the age of fourteen years. (3) The playing of said game of baseball was not a work of charity or necessity. (4) Three thousand spectators were present at the time said game of baseball was played, and paid an admittance fee for the privilege of viewing said game while it was being played, but no part of said admittance fee was paid to or received by the defendants or any of them. (5) On the day said game of baseball was played the defendants were each under employment by the month to play baseball for compensation, but playing baseball was not the usual or ordinary vocation of the defendants or any of them. (6) Said game of baseball was played upon the grounds of private parties, and was not played within one-half mile of any dwelling house, schoolhouse, church building, or the limits of any incorporated city or village. Said game was not played within one hundred yards of any public highway, and the grounds upon which said game was played were inclosed by a tight board fence ten feet high, which fence completely obstructed the view from the outside of said inclosure. Said game was not played for any stake, wager, or thing of value. (7) Upon the foregoing agreed state of facts, and without further testimony or evidence, this case shall be submitted to said county judge for trial and determination.”

The case was then submitted to the county judge upon the complaint and stipulation of facts. He held that the “complaint and stipulation of facts do not charge or establish facts constituting an offense under the laws of the state of Nebraska,” and therefore discharged the persons accused. The case was taken on error to the district court to settle the law relating to the matter. The district court affirmed the judgment of the county court. Whereupon the county attorney asked and obtained leave of this court to file a petition in error to settle the law of the case. Section 241 of the Criminal Code provides: “If any person, of the age of fourteen years or upwards, shall be found on the first day of the week, commonly called ‘Sunday,’ sporting, rioting, quarreling, hunting, fishing, or shooting, he or she shall be fined in a sum not exceeding twenty dollars, or be confined in the county jail for a term not exceeding twenty days, or both, at the discretion of the court. And if any person, of the age of fourteen years or upwards, shall be found on the first day of the week, commonly called ‘Sunday,’ at common labor, (work of necessity and charity only excepted,) he or she shall be fined in any sum not exceeding five dollars nor less than one dollar: provided, nothing herein contained in relation to common labor on said first day of the week, commonly called ‘Sunday,’ shall be construed to extend to those who conscientiously do observe the seventh day of the week as the Sabbath, nor to prevent families emigrating from traveling, watermen from landing their passengers, superintendents or keepers of toll bridges or toll gates from attending and superintending the same, or ferrymen from conveying travelers over the water, or persons moving their families on such days, or to prevent railway companies from running necessary trains.”

Webster defines “sport:” “To play; to frolic; to wanton.” (2) “To represent by any kind of play,”--and, as synonyms, gives “to play; frolic; game; wanton.” Ed. 1881, p. 1276. The definitions in the Century are the same, but somewhat more extended. In the same authority, (Webster,) p. 111, “baseball” is defined as “a game of ball, so called from the bases or bounds, usually four in number, which designate the circuit which each player must make after striking the ball.” That playing baseball comes within the term “sporting,” and is therefore a violation of the statute, there can be no doubt.

But it is claimed, in effect, that restraint of the kind named is in contravention of natural right or religion, and therefore is in excess of the powers of the legislature. The right of free, equal, and undisturbed enjoyment of religious opinion, whatever it may be, and to fully discuss the same, is secured to every one. Free discussion, however, is the outgrowth of free government. All free government is based on the divine law. God gave the 10 commandments to Moses, which contain rules designed to apply to the whole race. Although given to the Israelites, they were designed for all humanity. The Israelites were constantly lapsing into idolatry. There are noble examples of manhood, however, in their history, but the ignorance of the public, the almost continuous wars internecine, offensive or defensive, together with the pagan influences of the surrounding nations, prevented the development of the nation, and it became a prey to the Babylonians, and later the Roman empire. If we look at the world at the time of the birth of Christ, there was not, so far as we know, a nation where equal and just rights were enjoyed by all; nor where the rights of the poor were adequately protected and enforced, if, indeed, considered. The Roman empire, then at the height of its power, had much to commend it. Many of its rulers were men of genius, ability, and manhood, but punishments of all kinds were of the most cruel character. War was carried on for conquest, and with...