This is an appeal from an order of injunction by his Honor, Judge Rice. The following is the statement of the case:
"These were two cases tried together upon the complaint and demurrer; both cases involving practically the same pleadings and issues of law. The issues made by the pleadings on the hearing were:
"(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?"
The cause was most ably argued before us by both sides, and the authorities were cited from all the Courts that have passed upon the issues raised in the instant case. The thorough manner in which the case was argued and the citation of authorities have saved the Court much labor.
The initial vital question presents a clearcut question of law for the solution of the Court; it is whether or not playing golf on Sunday is prohibited by Section 715 of the Criminal Code of this State. As to playing golf on Sunday, the New York Court, in re People v. Poole, 44 Misc Rep., 118; 89 N.Y.S., 773, uses this language:
"Physical exercises and games are not forbidden on the Sabbath in the Ten Commandments. Only work is there prohibited. * * * In the Christian Church there never have been rules prohibiting physical games and exercises on Sunday. Those who say the contrary only speak at random, *Page 379 and from lack of education. Not long ago a complaint was made to the Archbishop of Canterbury that Mr. Balfour, the Prime Minister of England, played the game of golf on Sunday. The Archbishop's official response in writing was that `it is certain that the Christian Church has never laid down detailed directions affecting the actions of individuals in this matter. Each of them is responsible to God for so using the Lord's Day as to fit him best for the working days that follow.' It is not to be understood that the Legislature meant to be stricter than the divine law of the Hebrew Scriptures, or than the rules of the Christian Church excepting the extent to which it has expressly gone."
Section 715 of Criminal Code is:
"No public sports or pastimes, as bear 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. * * *"
This Statute, in its original form, was enacted in South Carolina in 1691, 2 Stat., 68.
The fact that a penal Statute must be strictly construed, and will not by the Courts be stretched to make criminal conduct by the individual which the Statute does not clearly prohibit, is elementary.
The South Carolina Statute cannot be construed as prohibiting playing golf on Sunday, for the following reasons:
(1) In so far as the word "public" runs through the Statute, it refers solely to "sports and pastimes" which the public pays an admission price to enter and view. Cheevesv. State, 50 Okla. Cr. 361; 114 P., 1125, reported in note to State v. Chamberlain, 21 Ann. Cas., 681.
A game of Sunday baseball for which no admission fee is charged is not a "public sport" within the meaning of an act prohibiting "public sports" on the first day of the week, and, where no wager is laid upon the result, it is not *Page 380 within a Statute prohibiting "all shooting, sporting, horse racing, gambling, or other public sports upon the first day of the week."
It is also equally clear that it was not the intention of the Legislature to prohibit all kinds of sports on the Sabbath, but that the provisions of the law are aimed at only public sports participated in on the Sabbath, and that it was not the intention of the law-making power to include private sports therein.
Private sports are those which are engaged in for the entertainment and pleasure of those who participate therein. Public sports are those which are engaged in for the entertainment and pleasure of the public. Because other persons than those engaged in a private sport may be entertained thereby would not bring such private sport within the meaning of the law. As the law does not make private sports an offense against the Statute, but confines its penalties to those who engage in public sports, a line of demarcation must exist which will distinguish public sports from private sports. In order to constitute a public sport, it must have been given for the entertainment of the public, which is evidenced by the fact that it is paid for by the public. When a game of baseball is played on the first day of the week, and an admittance fee is charged for witnessing the same, this fixes the character of such game as a public sport, and all who engage or take part in it are liable to prosecution and conviction under the law.
The allegation in the complaints, admitted by the demurrers, is that golf, as played upon the two golf courses, is not a public sport or pastime, but is played in a private park from which the public is excluded.
(2) Under the well-known rule of ejusdem generis there can be no conviction of playing golf on Sunday under Section 715, unless golf is such a game, exercise, sport or pastime as "hunting, shooting, chasing game, or fishing." *Page 381
The proper construction of the so-called Sunday law has been before many Courts, and the rule established is that no sport is prohibited under the Statute which expressly prohibits other sports, unless the sport in question is specifically named, or unless it is of the same general character as those prohibited; unless it is ejusdem generis to the sport specifically prohibited.
The Statute, after disposing of public sports, prohibits "other games, exercises, sports or pastimes such as hunting, shooting, chasing game, or fishing."
I think the case of State v. Prather, 79 Kan., 513;100 P., 57; 21 L.R.A. (N.S.), 23; 131 Am. St. Rep., 339, is conclusive of the present inquiry. The Kansas Statute considered by the Court was as follows:
"Every person who shall be convicted of horse racing, cockfighting, or playing at cards or game of any kind, on the first day of the week, commonly called Sunday, shall be deemed guilty of a misdemeanor, and fined not exceeding fifty dollars."
The Court said:
"The State contends that the words, `game of any kind,' include baseball. On the other hand, the contention is that the Statute must be construed strictly, and that the meaning of the general words `game of any kind,' is limited by the particular words which precede them, and that they include only games of the class or species to which horse racing and cockfighting belong. * * *
"In the broad sense in which the word is often used it includes baseball. Giving to the language this interpretation, the Statute necessarily applies to every contrivance or institution which falls within the general term. This construction would make the Statute apply to every game — to authors, whist, chess, checkers, backgammon, and cribbage, even when played within the privacy of one's home, and to croquet, basketball, tennis, and golf, whether played in *Page 382 public or on private grounds. It hardly seems probable that it could have been the intention of the Legislature to enact a provision so drastic in its terms as to make the playing of all games on Sunday misdemeanors, without regard to their character, and with no limitations or reservations with respect to the place where, or the circumstances under which, they might be indulged in."
Also Territory v. Davenport, 17 N.M., 214;124 P., 795; 41 L.R.A. (N.S.), 408.
In Ex parte Neet, 157 Mo., 527; 57 S.W. 1025; 80 Am. St. Rep., 638, construing a Missouri Statute, reading as follows: "Every person who shall be convicted of horse racing, cockfighting, or playing at cards or games of any kind on the first day of the week, commonly called Sunday, shall be deemed guilty of a misdemeanor, and fined not exceeding fifty dollars" — the Court said:
"The doctrine of ejusdem generis is as rock-ribbed in the law of this State as any principle ever announced. As applied to penal Statutes especially, it is only a humane doctrine, and accentuates the wisdom of the fathers when they objected to being punished for offenses which had not been declared to be offenses by the law. It observes the respective rights of the different co-ordinate branches of the government by requiring the Legislature to enact laws — not even the judiciary to enforce, but not create, the laws — not even by construction. Baseball does not belong to the same class, kind, species, or genus as horse racing, cockfighting, or card playing. It is to America what cricket is to England."
In Ex parte Roquemore, 60 Tex.Crim. R.; 131 S.W., 1101; 32 L.R.A. (N.S.), 1186, we find: A Texas Statute (Pen. Code 1895, Art. 199) prohibited the opening on Sunday "of any place of public amusement," and then added: *Page 383
"The term `place of public amusement' shall be construed to mean circuses, theaters, variety theaters, and such other amusements as are exhibited and for which an admission fee is charged; and shall also include dances at disorderly houses, low dives, and places of like character with or without fees of admission."
The Supreme Court of Texas said:
"It will be noted that this article undertakes to name and designate the places of public amusement, and it is said that it shall be so construed as to mean circuses, theaters, variety theaters, and such other amusements as are exhibited and for which an admission fee is charged, and shall also include dances at disorderly houses, low dives, and places of like character with or without fees for admission. That baseball is not specifically named of course is clear. What are we to understand by the general term `and such other amusements as are exhibited and for which an admission fee is charged'? Clearly we think amusements of a like or similar character. This seems to have been the construction given to a similar Statute by many Courts. It has been said that baseball is not prohibited by a Statute which provides for the punishment of any one convicted of horse racing, cockfighting, or playing at cards or game of any kind on Sunday. State v. Prather, 79 Kan., 513;100 P., 57; 21 L.R.A. (N.S.), 23; 131 Am. St. Rep., 339. To the same effect, see Ex parte Neet, 157 Mo., 527;57 S.W., 1025; 80 Am. St. Rep., 638. St. Louis Agri. MechanicalAsso. v. Delano, 108 Mo., 217, 18 S.W. 1101."
The Supreme Court of Texas then discussed the doctrine of ejusdem generis at length and defined it as follows:
"It is a principle of statutory construction everywhere recognized and acted upon, not only with respect to penal Statutes, but to those affecting only civil rights and duties, that where words particularly designating specific acts or things are followed by and associated with words of general *Page 384 import, comprehensively designating acts or things, the latter are generally to be regarded as comprehending only matters of the same kind or class as those particularly stated. They are to be deemed to have been used, not in the broad sense which they might bear, if standing alone, but as related to the words of more definite and particular meaning with which they are associated."
The Court then proceeded to hold:
"Following this construction, it occurs to us that baseball is not in fairness included in this Statute. It is elementary, before a citizen can be punished as a criminal, that the offense must be clearly defined by Statute, and an appropriate penalty affixed thereto. Further, it is a rule of construction well known that, in undertaking to fix and place meaning upon Statutes, we should do so in the light of contemporaneous history, and in reference to the habits and activities of our people. It is known, of course, that baseball is the most generally practiced, patronized, and approved of all the games of exercise, and that it is the cleanest and fairest of all manly sports, and excites rivalry in the youths of our land, and that every village and hamlet has its favorite nine, and that in every village and hamlet many ambitious youths dream of the day when they shall equal if not excel Matthewson, Speaker, Cobb, Napoleon La Joie, and Honus Wagner. It is also well known that for many years, in many of our larger cities, baseball on Sunday has been not only frequently but continuously played where an admission fee was charged. Now it would have seemed, in the light of these facts, that, if it had been the legislative intent to condemn this form of amusement and include it within the Statute under consideration, it would have been an easy matter to have done so in express words, and not left the matter at least clouded in doubt."
Also State v. Chamberlain, 112 Minn., 52;127 N.W., 444; 30 L.R.A. (N.S.), 335; 21 Ann. Cas., 679. New *Page 385 York cases are People v. Flynn (Sup.), 108 N.Y.S., 208.People v. Lynch (Sup.) 108 N.Y.S., 209. Keith Proctor Amusement Co. v. Bingham (Sup.), 108 N.Y.S., 205. People v. Hemleb, 127 App. Div., 356;111 N.Y.S., 690. William Fox Amusement Co. v. McClellan, 62 Misc Rep., 100; 114 N.Y.S., 594. Edwards v. McClellan (Sup.), 118 N.Y.S., 181. Weisblatt v. Bingham,58 Misc. Rep., 328; 109 N.Y.S., 545.
"A Statute prohibiting certain specified public amusements and other like and similar amusements on Sunday does not apply to any not named unless they are ejusdemgeneris." 25 R.C.L., 1247.
Under the Statute of South Carolina as amended by the Legislature in 1896, playing golf on Sunday is not a violation of the Sunday laws. Golf playing and baseball were unknown when the Statute was first passed.
As to the injunction feature, it is a dangerous thing in enjoining criminal prosecutions; it can be done in some cases, but the Court ought to be very careful in doing so.
In Cain v. Daly, 74 S.C. 480; 55 S.E., 110, the Court specifically recognized the rule established by the Supreme Court of the United States in Dobbins v. Los Angeles,195 U.S. 223; 25 S.Ct., 22; 49 L.Ed., 169, that ordinarily the enjoining of criminal prosecutions is not proper, but that, where the prosecution is about to be brought under a Statute which is either void or unconstitutional, an injunction is proper provided property rights are involved.
The allegations of the complaints allege that serious and valuable property rights are involved in the cases. The demurrer admitted that fact. Riley v. Town of Greenwood,72 S.C. 92; 51 S.E., 532; 110 Am. St. Rep., 592.
All exceptions should be overruled, and judgment should be affirmed. *Page 386