[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 349 January 20, 1928. The opinion of the Court was delivered by The plaintiffs instituted these actions in the Court of Common Pleas of Aiken County for the purpose of enjoining and restraining the defendants, and all law officers of this State, from arresting those who play golf, or attempt to play golf, on the Palmetto Golf Club links and on the Highland Park Golf course on the Sabbath day. In each of the cases a demurrer was interposed on the part of the defendants. By consent of all the parties interested, the two cases were heard together on circuit before his Honor, Judge H.F. Rice, and the appeals were heard together in this Court.
The demurrers of the defendants were overruled, and the injunctions prayed for were granted by the Circuit Judge. It is from this order that the defendant appeals.
The main questions raised by the appeal are those stated in the opinion of the Chief Justice as follows:
"(1) Is the playing of golf on Sunday a violation of the criminal laws of this State?
"(2) Can a Court of equity enjoin officers from prosecuting parties for violation of the criminal laws of the State, under the circumstances alleged in the complaint herein?"
Along with the main issues, as stated, we think there are certain other incidental questions involved in the causes, to which it is proper that attention be called herein, and which should be passed upon and decided at this time by this Court.
The case, as made by the respondents, requires only a construction of Section 715 of Volume 2 of the Code of 1922. To properly consider all the issues which we think should be determined, we regard it as necessary to also refer to, and to construe, Section 713 of the same volume. Both Sections are found in Chapter 16 of Volume 2 of the Code, which is entitled, "Nonobservance of the Lord's Day and Disturbing Religious Worship." We turn first to Section 715, which is as follows: *Page 368
"(715) Sec. 3. Public Sports Prohibited on the Lord'sDay. — No Public sports or pastimes, as bear baiting, bull baiting, football playing, horse racing, interludes or common plays, or other games, exercises, sports or pastimes, such as hunting, shooting, chasing game, or fishing, shall be used on the Lord's Day by any person or persons whatsoever; and every person or persons offending in any of the premises shall, upon conviction, be deemed guilty of a misdemeanor, and be subject to a fine not to exceed fifty dollars, or imprisonment not to exceed thirty days."
We are in thorough accord with the holding in the opinion of the Chief Justice to the effect, that the section quoted does not prohibit the playing of golf on the Lord's Day (commonly called Sunday) as a "game, exercise, sport or pastime." And we are unable to find any other legislative enactment which prohibits the playing of golf on the Sabbath.
In connection with the view we have expressed, however, and, as indicated before, we must not overlook the provisions of Section 713 of the Criminal Code, which are as follows:
"(713) Sec. 1. Penalty for Working on Sunday. — No tradesman, artificer, workman, laborer, or other person whatsoever, shall do or exercise any worldly labor, business or work of their ordinary callings upon the Lord's Day (commonly called the Sabbath), or any part thereof (work of necessity or charity only excepted); and every person being of the age of fifteen years or upwards, offending in the premises, shall, for every such offense, forfeit the sum of one dollar."
While one who plays golf as an "exercise, sport or pastime" on Sunday does not commit a misdemeanor, as defined in Section 715, it seems clear to us that one "of the age of fifteen years or upwards," who engages in the game of golf as a "professional," and one who teaches or instructs *Page 369 the playing of the game, in such a way as to make it his "worldly labor, business, or work" of his "ordinary calling," and who does not exercise such "wordly labor, business or work, * * * upon the Lord's Day (commonly called the Sabbath), or any part thereof," violates the provisions of Section 713.
In line with our view, it is unlawful for any person of the age of 15 years or upwards to engage in the work of a caddie on Sunday for remuneration or compensation, as such work is properly classed as "worldly labor, business or work" within the meaning of Section 713.
Further construing Section 713, it is also our opinion that it is unlawful for any person of the age of 15 years or upwards, who may own, lease, keep, or maintain any golf links or golf course, or other ground for the playing of golf as his "business," to "exercise" such business upon the Sabbath.
In considering the two Sections (713 and 715) together, as we should do, with reference to the matters at issue in this cause, the distinction we wish to make, and do make, is this: That it is not unlawful for one to engage in the game of golf as an exercise, sport, or pastime on Sunday, but it is unlawful for one in any way or manner to engage in golf as a worldly labor or business on Sunday.
In harmony with the opinion of this Court in the case of Charleston Oil Co. v. Poulnot, 143 S.C. 283,141 S.E., 154, filed along with the opinion in this case, we hold, under the authority of the decision of this Court in the case of State v. Southern Express Co., 107 S.C. 349;92 S.E., 1054, that the provisions of Sections 713 and 714 do not in any way apply to corporations; but the said sections do apply to officers, agents, servants and employees of corporations who may violate the provisions thereof.
Having disposed of the first main question and the issues incidental thereto, we next turn to the second question; made *Page 370 by the exceptions of the appellants, that alleged error on the part of the Circuit Judge in granting the injunctive relief that was prayed for.
The rule adopted by this Court as to enjoining the prosecution, or threatened prosecution, of persons for violation of the criminal laws was clearly stated by Mr. Justice Jones as follows:
"Ordinarily a Court of equity has no jurisdiction to restrain criminal proceedings unless such proceedings are instituted by a party to the suit in equity to try the same right in issue before the Court of equity. In re Sawyer [124 U.S. 200], 8 S.Ct., 482 [31 L.Ed., 402]. Crighto v.Dahmer, 70 Miss, 602 [13 So., 237]; 21 L.R.A., 84, and note, 35 Am. St. Rep., 666, and note at page 677; 5 Am. Eng. Dec. in Equity, and citations at page 51. But when the ordinance or Statute under which the prosecutions are had is clearly void and irreparable injury to property rights may result for its enforcement, equity may interfere. Dobbinsv. Los Angeles [195 U.S. 223]; 25 S.Ct., 22 [49 L.Ed., 169]. Georgia R. Banking Co. v. Atlanta [118 Ga. 486]; 45 S.E., 258, following City of Atlanta v. GateCity Gaslight Co., 71 Ga. 126; 16 Ency. Law, 372." Cainv. Daly, 74 S.C. 480; 55 S.E., 110.
It will thus be seen that the doctrine recognized in this State is that a Court of equity will only restrain a criminal prosecution when (1) there is a suit pending in equity, (2) in which it is sought to try the same right in issue in the criminal proceeding, and (3) such criminal prosecution is instituted by one party to this pending suit against the other,except (1) when the prosecution is instituted under an ordinance or Statute which is clearly void, and (2) irreparable injury to property rights may result from its enforcement. *Page 371
It must be conceded that, at the time of the threats made by the appellants to institute criminal prosecutions against the respondents for alleged violations of Sections 713 and 715 of the Criminal Code, there was no suit pending in the Court of equity to try any issue whatsoever between these parties, that such proceedings were not, therefore, instituted by any party to such suit, and the rule above stated cannot be revoked to sustain the order of injunction.
The next inquiry is to determine whether the exception to the rule may be invoked for this purpose. An analysis of the utterance of the Court on the question will show that the requirements are twofold; namely, a void ordinance of Statute, under which the prosecution is instituted, and irreparable injury to property rights.
The constitutionality of Section 713 has been consistently recognized by this Court from the time of the decision of the case of City Council of Charleston v. Benjamin, 2 Strob. Law (33 S.C.L.), 521; 49 Am. Dec., 608, decided in 1846. The holding of the Benjamin case was referred to with approval as recently as 1914, when this Court decided the case of the State v. Hondros, 100 S.C. 242;84 S.E., 781. In order to determine the issues raised in this case, it may not seem necessary to expressly pass upon the constitutionality of Section 715, but it is manifest to us that all the authorities, which have heretofore sustained the constitutional validity of Section 713, require also a declaration on the part of this Court in favor of the constitutionality, both State and Federal, of Section 715.
If, then, the order of injunction cannot be sustained by an application of the rule recognized in this State, owing to the absence of conditions upon which the operation of the rule is predicated, and cannot be brought under the exception to the rule, by reason of the absence of one of the *Page 372 essential requirements upon which the exception is based, namely the unconstitutionality of the Statutes, it is difficult to conceive how the order of the presiding Judge can be sustained in this jurisdiction under any view.
It seems, in view of the plain utterance of our own Court on this question, that, unless a criminal prosecution is instituted by a party to a "pending suit" in equity to try the same right which is in issue before the Court the constitutionality of the ordinance or Statute in question is essentially involved in every controversy in which it is sought to invoke the equity jurisdiction of the Court to restrain a criminal prosecution. The Statutes sought to be enforced by the respondents being valid enactments, it was error, in our opinion, that their enforcement be enjoined.
We have read with much interest the learned and lucid arguments of both counsel for the appellants and for the respondents in this cause, in which they have cited numerous authorities from the Courts of the United States and from other state jurisdictions, and in which they have set forth many interesting questions concerning the effect of the Statutes under consideration. We have thought best, in deciding the issues raised, to confine ourselves strictly to the Statutes of this State and to the decisions of this Court. We find that little assistance may be gained by a study of the decisions of foreign jurisdictions as to the Statutes involved in this cause, as the Statutes in the many States pertaining to the observance of the Sabbath day are so different from the wording of our own enactments pertaining to that subject. We have carefully avoided in this opinion any discussion of the propriety or impropriety of our Statutes, or the inconsistencies that may appear from a study of them, or that may arise from their rigid enforcement. With matters of such natures, this Court has nothing to do. Our duty is not to make the *Page 373 laws; we are confined to a construction of the laws as they have been written.
The judgment of this Court is that the restraining orders granted by the Circuit Judge be, and they are hereby, dissolved.
MR. JUSTICE STABLER concurs.