I concur in so much of the opinion of Mr. Justice Blease as holds: *Page 374
(1) That "one who plays golf, as an `exercise, sport or pastime,' on Sunday," cannot be convicted, as for a misdemeanor, under Section 715 of the Criminal Code, for the reasons so clearly expressed by him; that such conduct is not inhibited by the Statute:
(2) That consequently "it may not seem necessary to expressly pass upon the constitutionality of Section 715."
I dissent from so much of it as holds: "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" — and from so much of it as dissolves the injunction decree signed by his Honor, Judge Rice.
I do not mean to disagree with the conclusion as to the constitutionality of either Section 713 or 715; but, as that issue is not, as stated, necessary to be decided, I prefer to reserve my opinion for the occasion when it does become necessary. It seems very clear that, if the conduct complained of is not within the inhibition of the Statute as held in the opinion, and with which conclusion I agree, it becomes a work of supererogation to discuss the question of the constitutionality of the Statute.
The principal point of difference between the learned justice and myself is the dissolution of the injunction. I deem it manifest that the action was brought to determine the very issue which has been determined in the opinion, that playing golf on Sunday is not a crime under Section 715. The injunction is a harmless appendage to that determination, for any officer hereafter will respect the determination as greatly without the injunction as with it.
I think, however, that the decree of his Honor, Judge Rice, as to the right of the plaintiffs to an injunction under the circumstances, is entirely convincing. There is no question but that large property rights are involved in the controversy; *Page 375 the fine distinction is drawn between an objection to a criminal Statute upon the ground of its unconstitutionality, and an objection upon the ground that it has no application to the facts admitted. I think that the authorities hold that an injunction may issue against a prosecution under a Statute which has no application to the conduct of the defendant, as well as under a Statute which is unconstitutional; the invasion of the rights and liberty of the defendant is as obnoxious in the one case as well as in the other.
There is no question as to the correctness of the rule laid down in the case of Cain v. Daly, 74 S.C. 480;55 S.E., 110:
"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. * * * 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 * * * (citing cases)."
It seems to be apprehended that a Statute is not void unless it be unconstitutional, and the rule deduced is that there can be no injunction except where the void character of the Statute lies in its unconstitutionality.
It is as void with reference to particular conduct not within its inhibition, as if it were wholly unconstitutional; the inconvenience and damage to the party about to be arrested is as great in the one instance as the other.
The two distinct grounds of equitable interference are paralleled in the case of Philadelphia Co. v. Stimson,223 U.S. 605; 32 S.Ct., 340; 56 L.Ed., 570. In that case the Secretary of War had been authorized by act of Congress to establish certain harbor lines at Pittsburgh; the suit in equity was to enjoin the Secretary of War from instituting *Page 376 criminal prosecutions against the complainants because of their encroachments beyond the established lines. The bill did not question the constitutionality of the Statute, nor the official discretion of the Secretary of War, "butchallenged his authority to do the things of which complaintwas made. The suit rests upon the charge of abuseof power." Against the objection that an injunction to restrain a criminal prosecution would not lie, the Court said:
"The exemption of the United States from suit does not protect its officers from personal liability to persons whose rights of property they have wrongfully invaded * * * (citing cases). And in case of an injury threatened by his illegal action, the officer cannot claim immunity from injunction process. The principle has frequently been applied with respect to State officers seeking to enforce unconstitutional enactments * * * (citing cases). And it is equally applicable to a federal officer acting in excess of his authority or under an authority not validly conferred."
Further the Court said:
"Where the officer is proceeding under an unconstitutional act, its invalidity suffices to show that he is without authority, and it is this absence of lawful power and his abuse of authority in imposing or enforcing in the name of the State unwarrantable exactions or restrictions, to the irreparable loss of the complainant, which is the basis of the decree. * * * And a similar injury may be inflicted, and there may exist ground for equitable relief, when an officer, insisting that he has the warrant of the Statute,is transcending its bounds, and thus unlawfully assuming to exercise the power of government against the individual owner, is guilty of an invasion of private property. * * * If the complainant's rights, as against the defendant, were as claimed, it was entitled to adequate protection. And, in such case, the remedy might properly embrace the restrainingof unfounded prosecutions." *Page 377
If property rights should be so jealously protected as indicated in the case referred to, the Court would hardly less energetically protect the personal liberty of the citizen.
The Stimson case cites the case of American School v.McAnnulty, 187 U.S. 94; 23 S.Ct., 33; 47 L.Ed., 90. In that case an Assistant Postmaster General of the United States, claiming to act under authority of the Statute, debarred certain literature advertising magnetic healing from the mails. The decision of the Supreme Court of the United States was that the Statute manifestly did not cover such a case as that presented by the mailing of the literature, that the property rights of the plaintiff were involved, and that an injunction against their infringement through invoking a Statute that manifestly did not prohibit the mailing of such literature was proper. The Court said:
"The facts, which are here admitted of record, show that the case is not one which by any construction of those facts is covered or provided for by the statutes under which the Postmaster General has assumed to act, and his determination that those admitted facts do authorize his action is a clear mistake of law as applied to the admitted facts, and the Courts therefore must have power in a proper proceeding to grant relief."
In 32 C.J., 282, it is said:
"* * * An exception to the general rule very generally is recognized in decisions holding that where the statute or ordinance under which complainant is being prosecuted is unconstitutional or for any other reason void, and the prosecution will involve a direct invasion of property rights, and will result in irreparable injury thereto, an injunction may be granted to restrain the commencement or continuance of criminal proceedings based on such statute or ordinance" (citing numerous cases).
If the Statute in question has no application to playing golf on Sunday, as a pastime, there is no Statute against it. *Page 378 It seems to me that a threatened prosecution for conduct not covered by any criminal Statute is not less reprehensible than one under a Statute that is unconstitutional or otherwise void.
I think therefore that the decree of his Honor, Judge Rice, should be affirmed in all respects.