I feel constrained to dissent in this case from the conclusion reached by my brethren that the opening of a pool room or the operation of a pool room or billiard hall on Sunday is a violation of the Sunday law. Especially do I disagree with this on the ground upon which they place it, that is, that the man who opens his pool room or operates it on Sunday is a laborer within the terms of our statute.
Article 196 of the Penal Code, which relator was charged with violating, reads as follows: "Any person who shall hereafter labor or compel, force or oblige his employes, workmen or apprentices to labor on Sunday, etc., shall be fined not less than ten nor more than fifty dollars." Relator if guilty is to be so adjudged under the first clause, "Any person who shall hereafter labor on Sunday shall be fined." From the evidence relator was the proprietor of an ordinary pool parlor or hall and kept his pool tables for the purpose of remuneration, for which he charged a fee, not for admittance to the hall, but charged those who played games on his tables at a stipulated price. Billiard halls or parlors and pool halls or parlors have at all times and under all circumstances, so far as I am aware, been classed as places of amusements, where people go to entertain themselves by playing games on the tables for pleasure, amusement or to while away the odd hours for pleasure, but it has never been held or regarded as a place where people labor or work. It would hardly be considered a machine shop or factory, or a planing mill or any of those various places where people congregate as laborers and employ their time in such service. 22 Am. Eng. Ency. of Law, 943; 4 Am. Eng. Ency. of Law, 54.
Keepers of billiard halls and pool halls are required to pay an occupation tax usually to pursue such character of business. The Legislature has further provided that if such character of tables are exhibited for the purpose of securing betters or gaming, the owner or keeper of the table would be guilty of exhibiting the same under the gambling Act, and this, although it may be a licensed occupation; and it has been further held in this State that if the players of the game of pool should bet or wager on the game they would be guilty of betting. It has also been held that the betting of the table fees would constitute gambling, and if the owner of the table was aware of the fact and permitted the parties to bet the table fees, this would constitute him the keeper of the gaming table. It would *Page 631 hardly be contended under these circumstances, at least ought not to be, that the keeper of such a place would be what is commonly known as a laborer. Article 196 quoted does not include pool parlors within its terms, and if it be so held under the terms of the article, it would be by the most strained construction. It can not be held to be a place of amusement under article 199, because of the fact that entrance fees are not paid, and other reasons as well, and it is not to be classed as amusement under the terms of that statute. My brethren evidently believe that it is not within the terms of article 199. That article interdicts traders, merchants and those who carry on a lawful trading business, opening their business on Sunday for the purpose of traffic. It is more than difficult to comprehend how the proprietor of a pool hall could be held to be a laborer under the terms of our statute. It does not include him, and if the statute is not susceptible of the construction under the ordinary language as commonly understood, he would not be within the terms of the statute. No man can be held to violate a law in Texas unless the Legislature has made it an offense in plain language. Penal Code, articles 1 and 9. If we take the definition of what constitutes a laborer, then it is clear that relator can not be brought within the definition of the term as commonly understood. A laborer, as defined by Mr. Webster, is one who works at a toilsome occupation. A laborer is one who performs manual labor. 14 Fed., 724-5; 43 N.W. 794; 42 Minn. 112; 6 L.R.A., 338; 18 Am. St. Rep., 495; 46 S.W. 918-19; 28 S.E. 157; 29 Atlantic, 326; 37 N.Y. 640; 81 N.C. 340; 82 Penn., 469; 50 P. 347;38 S.E. 41; 112 Ga. 818; 26 S.W. 264. It is useless to multiply these authorities; they are very numerous in the United States. I have searched the authorities with some degree of interest to ascertain if it has been held by any court that a pool hall would be construed to be a laboring establishment, or the keeper, or employe of the keeper of such hall, would constitute either a laborer as that term is usually understood. Judge Brooks in Benson v. State, 47 Tex.Crim. Rep., held that a bartender who sold beer on Sunday could not be held to be a laborer. In fact, under our statute, he would not be a laborer, but if guilty of selling on Sunday, would come within the terms of article 199 by all of our decisions, which prohibits merchants, grocers and dealers in wares and merchandise and traders in business from opening their place on Sunday. It was thought, however, by my brethren that pool halls were not within the terms of that statute. If pool halls are to be included within the terms of the Sunday law, the Legislature has not seen proper to do so. This court by construction can not create offenses or make acts criminal within the terms of the law when not included by the Legislature. Murray v. State, 21 Texas Crim. App., 620.
I do not care to pursue this subject further. I am clearly of the opinion that my brethren are in error, and that by their opinion they *Page 632 have construed into existence a violation of law which has not been created by the Legislature. I, therefore, respectfully dissent.