I feel that it is my duty to record my dissent from the conclusion reached by the majority of the court on the *Page 148 judgment about to be entered in this case. I place it on the ground that quo warranto is not the proper remedy in such a case, and, therefore, the court below was without power to enter the decree it did.
This is an unusual proceeding to compel obedience to a penal law. Quo warranto, the writ used for that purpose, is an extraordinary remedy, to be applied with extreme caution, and should never be allowed except under express statutory authority. This is the first instance where the writ has been used to enforce a criminal statute as far as the writer of this opinion is able to discover. When it is invoked to compel a corporation not to do certain acts, it should be granted only when the company fails to fulfill a major purpose for which it is organized (High on Extraordinary Leg. Rem. section 648; Com. v. Monongahela Co., 216 Pa. 108, 116), since the effect of the writ may be that corporations may, in effect, be put to death or have powers taken away. Therefore, it is imperative that the cause for the infliction of the death penalty in whole or in part should be one which the law considers as of a very serious nature: 14 A. Corpus Juris, p. 1107, section 3712.
But the writ is here successfully used to forfeit part of a corporate life for playing baseball on Sunday, the commission of that which the law looks on as a very minor offense compared with crimes generally, (Com. v. Commercial Bank, 28 Pa. 383) and for a single offense only. The game of baseball is a sport; when played on Sunday, it is not an indictable offense as a felony or misdemeanor, but is made illegal only by the Act of 1794, which is a civil police regulation. It is not wicked, in itself; it has no element of criminality, and the Act of 1794, relating to Sunday games, is simply and only a civil regulation for the government of the members of society: Specht v. Com.,8 Pa. 312.
All parties to this case have agreed that the game in question was played in an orderly manner; it did not *Page 149 constitute a common or public nuisance. The commission of the offense did not interfere with the tranquility or peace of the neighborhood, or of those engaged in religious worship; nor did it harm or injure any person. A court of equity would not attempt by injunction what may, under the majority opinion, be done by quo warranto, unless the property of complainant or personal rights dependent thereon was injured by the act: Sparhawk v. The Union Passenger Ry. Co., 54 Pa. 401; Klein v. Livingston Club, 177 Pa. 224; Com. v. Smith, 266 Pa. 511. As the courts have always insisted that the misuse or abuse of corporate powers must be such as the law stigmatizes as being of a serious character in order to justify forfeiture of charters, the controlling principles governing the use of the writs against corporations should be the same as those governing the actions of a chancellor. In such cases, the mere fact that a crime was committed, and even repeatedly committed, does not afford ground for equitable relief: Com. v. Smith,266 Pa. 511; Malone v. Gas Light Co., 182 Pa. 309; Klein v. Livingston Club, supra; Friedenborn v. Com., 113 Pa. 242; Sparhawk v. The Union Passenger Ry. Co., supra; Com. v. Foster,28 Pa. Super. 400. See also McMillan v. Kuehnle, 78 N.J. Eq. 251, 78 A. 185; Barry v. State, 212 S.W. (Tex. Civ. App.) 304; Com. v. Ruh, 173 Ky. 771, 191 S.W. 498; World's Columbian Exposition v. U.S., 56 Fed. 654. Equitable powers embrace much more and are more elastic than those of quo warranto. This writ was never intended to suppress crime, correct minor misconduct or slight abuses of corporate life, and it has been held by this court that quo warranto will not lie where the relator has a private remedy: Com. v. Bridge Co., 20 Pa. 185. Without reviewing all of the authorities separately in this and other states, to me it is quite certain quo warranto should not lie for the causes here shown.
Appellee contends that the Act of 1794 prohibits playing baseball on Sunday. If this be true, then the club *Page 150 could not play on Sunday without subjecting itself to the penalty of the act, four dollars for each offense. By these proceedings, an additional punishment is, in effect, added by judicial construction. A part of its corporate life is taken from it with a further penalty that if it does not desist, its charter will be revoked. Thus a new and different punishment, other than that which the legislature has deemed ample, is here provided for, not by law-makers, but by the courts.
By the Act of March 21, 1806, 4 Smith's Laws 332, where a statutory remedy is provided, it must be followed. The remedy under the Act of 1794 was by summary proceeding in a hearing before a magistrate, with the punishment fixed at four dollars for the offense. An individual, partnership, association, or joint stock company, is subject to no other penalty. The Act of 1806 means that the proceeding mentioned in the Act of 1794 is an exclusive remedy, and we so held in Com. v. Smith, supra. Com. v. Wilkins, 271 Pa. 523, so much relied on and cited in the majority opinion, was a petition for a mandamus to compel school directors to perform a public duty for the preservation of the health of the community. It was not quo warranto, and there is some distinction between mandamus and quo warranto. But even in that case, Mr. Justice SIMPSON states, in referring to remedy the Act of 1806, "For here [in the case then before the court] a remedy is [not] provided . . . . . . and no penalty [is to be] inflicted."
The act authorizing quo warranto did not, by its terms, include the present cause of action. The authority cited for the action is the 3d section of the Act of June 14, 1836, P. L. 621. But this gives authority to institute quo warranto only where the corporation proceeds "without lawful authority" or "exercises any power, privilege or franchise, not granted or appertaining to such corporation." The Attorney General's right to proceed is limited by the act. Appellant was organized and chartered to play baseball; this right extended *Page 151 to every day of its corporate life. The power to perform its corporate function is there, but playing on a particular day is penalized by the Act of 1794. If the legislature should see fit to remove the penalty, no new steps would be necessary to enable the club to play on Sunday. What appellant did was within its general corporate powers, but penalized by a civil regulation.
If the law of the majority opinion is to be followed, the Attorney General ought to institute proceedings against all corporate violators of the Sunday law, including railroad companies, trolley car companies, all taxicab companies and motor bus companies, which are identical in purpose with taxicab companies, and all carriers whose passengers are not on their way to church or religious service or who are travellers whom necessity or mercy compels to move, but who are pleasure seekers or engaged in a business journey.
Under the majority opinion, corporations that sell or print newspapers on Sunday, or for Monday delivery, ought to be proceeded against; telephone and telegraph companies, which furnish the news, should be included. Indeed, if this entirely new flexible remedy is to be upheld as the law, it becomes the open gateway for the punishment of all corporate violators of law, be it the Sunday law or other laws. Manufacturing establishments which do not properly guard machinery, the same concerns, or others, with large buildings, and hotel companies, not properly equipped with fire escapes, mercantile establishments, telephone companies and others that happen to employ labor illegally, or work them overtime; all may be proceeded against by quo warranto. In fact every corporation could be subjected to the forfeiture of its charter for violations of the laws by its agents or employees. This is the plain logic of the majority opinion.
It is my judgment the legislature never intended the writ of quo warranto to cover the cause for which it is here used. There is no reason for segregating the facts *Page 152 of this case from the great mass of corporate violations and giving them preferential treatment, as I feel we shall be obliged to do in the future if we are to follow the decision of the majority and administer to other violators the same treatment as here meted out to appellant.
It is not necessary for me to express an opinion on the other branch of this case, as to whether playing baseball violates the Sunday Act of 1794; for, as I view it, the Commonwealth must be confined to the remedy there provided by the legislature. In my opinion, this case is controlled by Sparhawk v. The Union Passenger Ry. Co., supra, and Com. v. Smith, supra, and the judgment should be reversed.