I concur in the excellent majority opinion, but do so in a separate opinion in order to deal with the principal question involved from a somewhat different but not inconsistent approach. *Page 1147
Respondent was charged in a complaint filed by the city attorney in the Municipal Court of the City of Springfield, Missouri, with a violation of City Ordinance Number 11885, which prohibits the keeping open of any theatre, playhouse, or other place where theatrical performances, vaudeville shows or moving picture exhibitions are conducted, or conducting or taking part in any such performance, show or exhibition, on Sunday. Defendant was adjudged guilty and fined one hundred dollars ($100), and thereupon appealed to the Criminal Court of Greene County, Missouri, where he filed a motion to dismiss the complaint. This motion was sustained, and from the order and judgment entered thereon discharging the defendant the city of Springfield has perfected its appeal to this court on the ground that a constitutional question is involved.
Appellant is a city of the second class. Its charter is contained in Article III, Chapter 72, which comprises Sections 7970 to 8205, both inclusive, Revised Statutes 1919. The ordinance in question was enacted by a vote of the people of the city of Springfield upon a referendum under Section 7997, Revised Statutes 1919, and later upheld and confirmed by a second and a third vote upon petitions to repeal the same. Omitting caption and formal parts the ordinance is as follows:
"No person, or persons, corporation or manager, agent or employee of such person, persons or corporation, shall, in this city, keep open any theatre, playhouse, or any other place where theatrical performances, vaudeville shows or moving-picture exhibitions are given or conducted, nor conduct or take part in any such theatrical performance, vaudeville show or moving-picture exhibition, on the first day of the week commonly called Sunday; and every person violating any of the provisions of this ordinance, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than one hundred nor more than five hundred dollars."
The complaint charges that "on or about the 19th day of September, 1926, at the aforesaid city, within the limits of said city, W.W. Smith, then being the owner and manager of a moving picture show located in said city, and known as the Grand Theatre, did then and there wilfully and unlawfully keep open said Grand Theatre and conduct therein a moving picture exhibition on the said 19th day of September A.D. 1926, the said day being the first day of the week, commonly called Sunday, contrary to Section 1 of Ordinance Number 11885, of the city of Springfield, Missouri, and contrary to the city ordinance in such cases made and provided and against the peace and dignity of the city."
In his motion to dismiss, defendant alleged that the ordinance was unconstitutional and void for certain reasons which may be summarized as follows: *Page 1148
"Said ordinance is a special law, or ordinance, where a general law or ordinance could be made applicable to the subject-matter thereof, contrary to and in violation of Section 53 of Article 4, and more particularly Sub-Section 32 of said section of the Constitution of the State of Missouri," in that said ordinance only purports to prohibit certain things therein named, whereas "in order for such an ordinance to be valid, it must apply to all kinds of secular work, and the operation of all kinds of businesses, or occupations, or vocations, which cannot properly be excepted therefrom on the grounds of necessity or charity;" that "said ordinance is class legislation under said provision of said Constitution, for the reason that it does not apply to all persons who, in the nature of things, the reason of the ordinance includes, and that the classification therein is arbitrary, in that there is no peculiarity in the condition of the members of the constituted class, or their business, or occupation, or vocation, which justifies their segregation for the purpose of prohibiting them from keeping open and conducting their businesses on Sunday, as a general ordinance could be passed prohibiting the doing of any work or carrying on any business, or occupation, or vocation, not of necessity, or charity;" that "said ordinance shows upon its face that it is class legislation, and void under said constitutional provision;" and that "said city of Springfield has no power, under its charter, to pass a Sunday ordinance, applicable alone to the persons and things specified in said ordinance, but is prohibited from doing so by the said provision of the said Constitution."
Appellant assigns error as follows:
"The court erred in holding that the ordinance of the city of Springfield prohibiting vaudeville and moving-picture shows on Sunday is unconstitutional and void.
"The court erred in sustaining defendant's motion to dismiss the case on the ground that same was based on an invalid and void ordinance and no conviction could be sustained."
All of the objections contained in the motion to dismiss are grounded in the charge that the ordinance violates Sec. 53 of Art. 4, and more particularly Sub-section 32 of said section of the Constitution of the State of Missouri." From the trial court's memorandum opinion quoted in appellant's printed statement it appears that the only question there presented and ruled was whether or not the ordinance violated this constitutional provision. Consequently, we shall concern ourselves with no other question subsequently sought to be raised on this appeal. [McManus v. Park, 287 Mo. 109, 123; Howell v. Jackson County, 262 Mo. 403, 414, 415; and Shohoney v. Railroad,231 Mo. 131, 148.] *Page 1149
The relevant part of the above-mentioned Sub-section 32 is as follows:
"In all other cases where a general law can be made applicable, no local or special law shall be enacted; and whether a general law could have been made applicable in any case is hereby declared a judicial question, and as such shall be judicially determined, without regard to any legislative assertion on that subject."
We have held that the constitutional provision here invoked applies to municipal as well as to state legislation. [Ex parte Lerner, 281 Mo. 18.] The thirty-one sub-sections immediately preceding and the first sentence in this Sub-section 32 of Section 53, Article 4, of the Constitution specify the kind of "local or special" laws which the General Assembly shall not pass. Immediately following these prohibitions is the provision above quoted. It does not appear, and counsel for respondent do not claim, that the ordinance in question falls within the thirty-two classes of local or special legislation the enactment of which is thus absolutely prohibited. It follows that the mere fact if it be a fact, that the ordinance is local or special does not necessarily make it invalid. If the ordinance does not fall within the classes thus specifically prohibited it is valid, although local or special, except "where a general law can be made applicable," and whether a general law could have been made applicable in any case is by the above quoted constitutional provision "declared a judicial question, and as such shall be judicially determined, without regard to any legislative assertion on that subject." In other words, we must first determine whether or not the ordinance is a local or special law. If this inquiry is answered in the negative there is no other question for our determination in the case, and the ordinance must be held constitutional. If answered in the affirmative we must further consider and decide, as a judicial question without regard to any legislative assertion on that subject whether or not a general law could have been made applicable.
In our consideration of these questions it must be borne in mind that nearly every state has some constitutional provision with reference to the enactment of local or special laws, and that there is wide variance in the form and substance of these provisions. According to Kettleborough's compilation entitled "The State Constitution," published in 1918, the constitutions in a half dozen or more states simply specify a number of cases in which no local or special law shall be enacted, and provide that in other cases local or special laws may be passed on public notice. In twenty or more states the passage of local or special laws is prohibited in a number of specified instances, with the further provision that in all other cases no local *Page 1150 or special law shall be enacted where a general law can be made applicable, and without indicating whether the determination of such applicability shall be a legislative or a judicial question. Naturally there is lack of harmony in the judicial decisions of these states, some treating it as a judicial and others as a legislative question. A few states, such as New York, New Jersey and Virginia, have constitutional provisions enumerating the cases in which the enactment of local or special laws are absolutely forbidden, and further providing that the legislature shall pass general laws for the cases so enumerated and for all other cases which in its judgment may be provided for by general laws. The Constitution of the State of Maine merely provides that the Legislature "shall, from time to time, provide, as far as practicable, by general laws, for all matters usually appertaining to special or private legislation." As far as we have been able to ascertain only four states have a constitutional provision making the determination of whether or not a general law could have been made applicable in any case where a local or special law has been enacted a judicial question. These states are Missouri, Michigan, Minnesota and Kansas, and the related provisions are substantially the same, all (except Kansas) prohibiting the enactment of local or special laws in enumerated cases, all recognizing that such laws may be necessary in other cases, but prohibiting their enactment where a general law can be made applicable, and making the determination of the applicability of a general law a judicial question.
We come now to the vital questions involved in this case. First, is the ordinance a local or special law? The following excerpts from our decisions illustrate the prevailing view in the State as to the distinction between a local or special law and a general law.
"`In order to determine whether or not a given law is general, the purpose of the act and the objects on which it is intended to operate must be considered. If these objects are distinguished from others by characteristics evincing a peculiar relation to the legislative purpose, and showing the legislation to be reasonably appropriate to the former and inappropriate to the latter, the objects will be considered, as respects such legislation, to be a class by themselves, and legislation affecting such a class, to be general.'" [State ex rel. v. Gordon, 245 Mo. 12, 33, quoting with approval 26 Am. Eng. Ency. Law, p. 683.]
"The rule that a statute which relates to a class of persons or class of things is general, while one which only applies to particular persons or things is special, has been generally announced in this and other jurisdictions. [State ex rel. v. Tavlor, 224 Mo. l.c. 477, 478, and cases cited; Elting v. Hickman, 172 Mo. 257, and cases *Page 1151 cited; State ex rel. Dickason v. County Court of Marion County,128 Mo. 427; Lynch v. Murphy, 119 Mo. 163; State ex rel. Lionberger v. Tolle, 71 Mo. l.c. 650.] It is, however, an essential adjunct of this rule that the classification made by the Legislature shall rest on a reasonable basis and not upon a mere arbitrary division made only for purposes of legislation. [State ex rel. v. Roach, 258 Mo. l.c. 563; Hawkins v. Smith, 242 Mo. l.c. 696.] When this is borne in mind, and a statute is enacted upon a basis justifying its classification and is made to apply to all persons who may hereafter fall within its purview, it is not special legislation." [State ex inf. Barker v. Southern, 265 Mo. 275, 286.]
"The question is not whether, considering all the circumstances which exist, the Legislature might not constitutionally make a law which would include a larger class. On the contrary, it is whether it appears beyond a reasonable doubt that there are no distinctive circumstances appertaining to the class with respect to which it has legislated which reasonably justify its action in restricting the operation of the law to the persons, objects or places to which the law is made applicable." [State ex inf. Atty.-Gen. v. Hedrick, 294 Mo. 21, 74.]
Having assailed the ordinance as a special law respondent must carry the burden of showing that the classification so made rests upon an unreasonable basis or distinction. His chief contention, running through the pleading, printed briefs and oral arguments presented in his behalf, is, in the language of the motion to dismiss, that "in order for such an ordinance to be valid, it must apply to all kinds of secular work, and the operation of all kinds of businesses, or occupations, or vocations, which cannot properly be excepted therefrom on the grounds of necessity or charity." The proposition is thus bluntly stated in the printed argument first submitted for respondent: "The sole object of a Sunday law is to prohibit labor and ordinary businesses. . . . It is and always has been, justified solely on the ground that it is for the benefit of those engaged in the labor or in conducting the businesses." From the vantage point of this broad assertion counsel present a vigorous argument, but to no purpose in the determination of this case, for our statutes and judicial decisions, as we read them, render no such classification necessary.
Looking to the statutes, in 1877 (Laws 1877, p. 241), we find that the very law that forbids labor on Sunday, which had long been on the books, was amended so as to make it also a misdemeanor to "be guilty of hunting game or shooting," on Sunday, acts not ordinarily regarded as having any of the characteristics of labor. The statute as thus amended is still a part of our state law, appearing as Section *Page 1152 3596, Revised Statutes 1919. Also, Section 3598, Revised Statutes 1919, which has been on the books since the statutory revision of 1845, makes misdemeanors of "horse racing, cock-fighting or playing at cards or games of any kind on Sunday." Neither are these acts generally characterized as labor. Both statutes have from time to time been attacked and construed, but never held unconstitutional.
Turning to our judicial decisions we find that in State v. Granneman, 132 Mo. 326, l.c. 331, cited by respondent as "decisive of this case." Division Two of this court held that a statute which makes it "a misdemeanor for any person to carry on the business of barbering on Sunday" was in conflict with the same constitutional provision that is here invoked. The opinion also states that the object of the law in question was "to enforce an observance of the Sabbath, and to prohibit that kind of labor on that day;" but it does not hold that "the sole object of a Sunday law is to prohibit labor," or that it is "justified solely on the ground that it is for the benefit of those engaged in the labor." In discussing statutes which were directed solely to the labor aspect of the acts prohibited on Sunday the writer of the opinion correctly said that "the policy of our laws is to compel the observance of Sunday, as a day of rest" but, as suggested in the majority opinion, labor and business are not the only enemies of rest, and the opinion does not undertake to specify, limit or define in an exclusive sense the objects, aims and purposes of all Sunday laws, or the grounds upon which they are sustained. The case of State v. Ambs, 20 Mo. 214, and State v. Chicago, Burlington Quincy Railroad Co., 239 Mo. 196, cited by respondent, present only the labor aspect of the forbidden businesses, the majority opinion in the latter case finally resting upon a determination that the labor contemplated by the statute in question was a work of necessity and therefore not unlawful or unconscionable. Neither these cases nor any others of which we have notice hold that cessation from labor and ordinary business exhausts the object, purpose and concern of our public policy touching Sabbath observance. Respondent's above assertions as to the necessity of a single classification thus appear to be without either legislative or judicial sanction in this State.
Nor do we find any substantial support of respondent's view in other jurisdictions. In a broad sense the person who labors is also engaged in business, and the person who conducts a business usually performs some labor. But it is generally recognized that substantial differences in the nature effect and regulation necessary to bring the otherwise lawful pursuits of labor and business into harmony with an observance of the established day of rest form a reasonable basis for separate classifications. So, the tendency of *Page 1153 businesses furnishing public amusement to attract crowds and induce physical and mental excitement different both in kind and degree from that of ordinary business and labor, but likewise inimical to the observance of Sunday as a day of rest, of which fact judicial notice must be taken, forms a reasonable basis for their separate classification. The ordinance, therefore, is not a special law on the first ground advanced by respondent, and this contention is overruled.
A more serious question is presented in respondent's other contentions which really merge in the one complaint that even though public amusements may under this provision of the Constitution be treated as a distinct class for the purpose of legislation, yet the separation of theatrical performances, vaudeville shows and moving-picture exhibitions from other public amusements is without any reasonable basis or distinction, and the ordinance for that reason violates the constitutional provision under consideration.
As heretofore observed Springfield is a city of the second class deriving its charter powers directly from Sections 7970 to 8205, both inclusive, Revised Statutes 1919. Among the powers of cities of the second class enumerated in Section 7976 are the following:
"XVIII. To license, tax and regulate . . . barber shops, hairdressing establishments, bathhouses, hotels, rooming houses, ordinaries, apartment houses, confectioners, restaurants, boarding houses, tenement houses, office buildings, public halls, public grounds, photographers, artists, auctioneers, plumbers, stockyard and wagon yard proprietors, undertakers, meat shops, livery, board and sale stable keepers, shows, circuses, parades, operatic, theatrical and other exhibitions; amusements, concerts, theatres, theatrical agents, amusement parks, cattle shows, horse shows, automobile shows, dog shows, poultry shows, animal shows, menageries, museums, sparring exhibitions, equestrian exhibitions, horoscopic views, moving-picture exhibitions, cycloramas, panoramas, signs, skating rinks, wrestling exhibitions, boxing contests, public masquerade balls, shooting galleries, dance halls, dance houses, fortune tellers, clairvoyants, palmists, lung-testers, muscle developers, billiard parlors, billiard and pool tables and instruments used for amusement; . . . and in the exercise of the foregoing powers to divide the various occupations, professions, trades, pursuits, corporations, and other institutions and establishments, articles and commodities into different classes."
It will be observed that by the foregoing statute the city of Springfield is specifically empowered to regulate many public amusements. The power is permissive. The city was not obliged to exercise it, but having chosen to do so it may not "make fish of one and fowl of another" among those subject to regulation and similarly situated. If some are made amenable to a Sunday law and others are *Page 1154 not, or if some are so regulated by one ordinance and others by another, there must be some reasonable basis for such classification or the law is special. What reasonable basis or distinction can be suggested, to justify closing theatrical exhibitions, vaudeville shows and moving-picture exhibitions on Sunday and not extending the same regulation to shows, circuses, boxing contests and operatic exhibitions, all of which are similarly situated and subject to like regulation. Appellant has presented none, and we confess our inability to discover any. Other equally striking comparisons might be drawn from the subjects enumerated in this statute. The ordinance in question thus falls within the class of local or special laws. We have carefully examined the cases cited by appellant on this point. Many of them arise in states that have no constitutional provision like the one here under consideration, others do not determine the question here raised, and the few decisions that seemingly touch it in any way do not convince us that they should be followed in this State.
The final question for our determination is whether or not a general law could have been made applicable. We have given careful consideration to this phase of the case and are unable to conceive of any substantial reason why all public amusements subject to such regulation and not characterized by any distinction that would be a reasonable basis for further classification should not have been included in one ordinance. We are aware of the ruling in certain cases, where constitutional provisions unlike the one here controlling were involved (Cf. Carr v. State, 175 Ind. 241; Breyer v. State, 102 Tenn. 103; State v. Ambs, 20 Mo. 214, 220: People v. Bellet, 99 Mich. 151, 22 L.R.A. 696; Stanfeal v. State, 78 Ohio St. 24, 14 Ann. Cas. 138; State of Nebraska v. Murry, 8 A.L.R. 563, 566, case note; Moore v. Owen, 58 Misc. 332, 109 N.Y.S. 585; and State v. Loomis, 75 Mont. 88), to the effect that the Legislature may recognize different degrees of evil tendency in different forms of amusement, and may give effect thereto in Sunday laws fixing different penalties, without such legislation being open to the charge that it is arbitrary or unwarranted, although such laws be deemed special. The above cases from Missouri and Michigan were so ruled before the adoption of the constitutional provision now in force making it a judicial question whether in such case a general law could have been made applicable. In this case we think an adequate range of penalties might well have been provided in a general ordinance, and, hence, are constrained to hold that a general law of the character above indicated could have been made applicable. For this reason the ordinance in question is unconstitutional.
The judgment is affirmed. Walker, Blair, Gantt and Frank,JJ., concur. *Page 1155