In order to sustain a conviction under article 302 of the Penal Code it is necessary, first, that moving picture shows come within the denunciation of that article, and, second, that a fee must be charged for admission to its exhibitions. This is the statute and is fully recognized by the majority opinion in this case as well as the majority opinion in Lingenfelter v. State,64 Tex. Crim. 30. That moving picture shows eo nomine are not named in the statute is also fully recognized in the Lingenfelter case, and expressly so by the Legislature as shown by the action of that body at the general session of the Thirty-second Legislature in House Bill No. 497. For a review of the history of this matter and such action of the Legislature see the Lingenfelter case at page 59 of 64 Texas Criminal Reports. This court by a majority opinion held in that case that such shows are not mentioned, but they held them to be theaters, and by such holding brought or sought to bring picture shows within the terms of the statute. By the terms of the statute theaters run on Sunday are prohibited only when an admission fee is charged. The statute does not mention moving picture shows. I dissented in that case, believing, and yet believe, that a moving picture showis not a theater. This ought not really to be debatable. For a discussion of these questions see the opinion and dissenting opinion in Lingenfelter case. I do not believe it would serve any useful purpose now to again review that phase of the statute.
Judge Harper for the majority seeks to fortify his opinion in this case by reciting the fact that the last Legislature declined to permit cities to authorize the operation of picture shows within the city limits. I am persuaded that he is not justified in this position. The action of the Legislature, if supporting him, in any sense at all, does so on the theory that the Lingenfelter case having held picture shows to be theaters, the Legislature, therefore, could not authorize the city to setaside, annul or repeal a State law as to theaters. The Legislature was correct, if it be conceded that the majority were correct in holding picture shows to be theaters. In the Act of the last Legislature above mentioned that body did not say nor intimate that a picture show was or is included in article 302, but it may be supposed that the Legislature recognized the fact that as the majority opinion of this court declared the law it should be binding on that body whether correct or *Page 371 not. If they took that view of it, they may do so, or at least feel justified in refusing cities authority to suspend, repeal or annul a State law, that is, if the picture show is a theater. It is an axiomatic truth that a city can not annul or suspend aState law, and it is equally axiomatic that the Legislature cannot authorize it so to do, and this by express provision of the Bill of Rights, for it is therein declared that no law shall be suspended except by the Legislature. That body can not delegate to any city the power to suspend or repeal a State law. But I do not agree that a moving picture show is a theater. I do not care to pursue this particular phase of the case further, and refer to what I had to say on this subject in my dissenting opinion in the Lingenfelter case.
It is held by the majority that "contributions" as shown by the facts were "admission fees," and, therefore, constituted what the statute inhibited, "fees charged for admission." It is conceded the contributions were entirely voluntary and a great many who attended the exhibitions did not contribute anything. I can not agree with such a conclusion. Charging a fee for admission is a demand, a condition precedent for attending the exhibition. Without its payment entry to the show is effectually barred. This is not so with reference to voluntary contributions. In the latter case the show was open to all who may desire to attend, and this without money and without price. Contributions made are voluntary and need not be paid. They are not demands, but in a sense generosity. This is too well understood by all church organizations and church attendants to admit of doubt or call for discussion. "Receiving contributions" or "taking up collections" is practically the only way revenue for church purposes is realized or obtained. It would strike the priest, preacher or layman as a novelty to assert that such contributions or collections constituted or is a demand of admission fee for attendance upon divine services or for the purpose of carrying on the great work of the Christian church of spreading the teachings of Christianity. It would be rather a revelation to the church to announce that attendance upon its services is dependent upon admission fees as a condition precedent to be paid in advance, or that to enjoy the blessings "of a free salvation" the communicant must pay stipulated sums of money as a prerequisite. A fee demanded as a prerequisite is a financial proposition to be complied with before the happening of the contingency. The contributions are voluntary and in church purposes supposed to be of an unselfish nature, and one that carries the idea of service and duty to others rather than to the donor. In view of these high ideals of duty and service the churchman, priest or layman is solemnly told that contributions and collections are only "evasions," subterfuges and duplicitous; that they are really fees for admission to attendance at church services. From any viewpoint — legal or otherwise — contributions should not be held to be "evasions." Evasion is not synonymous with admission and require payment under the demand, nor is a contribution box of the church a "silent solicitation for contributions" to be treated as a demand for payment. It is not a fee *Page 372 charged for admission to church services or privileges. It is a gift of more or less value as the ability, willingness, generosity or conscience of the donor may suggest. It is conceded that no one was charged an admission fee. This ought to have ended the case. The distinction between voluntary contributions and exacting an admission fee is the very attribute that distinguishes a lawful gift from simony.
Back to the case. I feel persuaded that the evasion found by my brethren is a matter of construction in their opinion not to be found in the facts, or in the "silent solicitation for contributions" and is not sustained by the facts nor within the terms of the statute. All offenses in Texas must be plainly defined as a prerequisite to punishment of a citizen of this State. The statute does not authorize such conviction except upon charging an admission fee. Contributions and gratuities are not made part of the statute. The whole case is one of judicial construction and in effect judicial legislation. The statute nowhere mentions moving picture shows, and the Legislature refused to include such shows in the statute, as evidenced by their action above referred to, refusing to amend this article by inserting moving picture shows. See Acts 32nd Legislature; 64 Texas, p. 50. As I understand the decisions and the Act of the Legislature refusing to include moving picture shows, the conviction in this and the Lingenfelter case was by virtue of judicial construction, constituted it a judicial and not a legislative offense. Lingenfelter case, 64 Tex.Crim. Rep..
As to authority on the Sunday law we are cited to "the opening chapter in the holy book, the Bible," by the majority opinion. (Since filing this dissent Judge Harper has changed his original opinion so as to make "chapter" read "chapters," — in referring to the opening chapter of Genesis.) I do not exactly understand the application of this citation to the case. The seventh day, rest or Sabbath, as it may be termed, is not found in "the opening chapter of the Bible," but is recorded in the second chapter of Genesis, second verse, where it is stated, "God ended his work on the seventh day," etc. The creation is generally supposed to have occurred prior to the seventh day, and it has always been generally understood that God created man during the six days, perhaps on the sixth, and it is true from the reading of the first chapter in Genesis that God gave him power of control and dominion over the earth and all created things. This authority is found in the "opening chapter of the holy book, the Bible." The seventh day, or day of rest, did not occur until after God had turned over this dominion to man and ordered him to "subdue" the earth, and placed him in control of all created things. After granting such authority to man the Creator rested on the seventh day. This created man superior to the Sabbath of the Jew or of Genesis. This was expressly recognized by the Savior on one occasion when the Pharisees chided Him on the fact that His disciples were violating the Sabbath day by plucking ears of corn, when He stated to them the Sabbath was made for man and not man for the Sabbath. This was the expressed recognition by the Savior of the power conferred upon man in the beginning. This citation by my *Page 373 brethren from the Bible, had it been in the opening instead of the second chapter, was certainly not seriously intended to sustain the proposition that a failure to charge an admission fee was an "evasion of" the Sabbath on which the Creator rested. The rest day of the Sabbath was a cessation from labor. It was not a financial proposition. The cessation from running the picture shows is not cessation from labor, but it was, as construed, intended to prevent collection of fees and making money. The labor is just the same whether the fee is charged or is not charged, provided the picture show operates. The statute, therefore, under consideration was not enacted on the theory that rest from labor on the Sabbath is the issue, or for the reason that it was a cessation of labor on Sunday, but is based exclusively and entirely on the proposition that such places of amusement can only be interdicted when a fee is charged. If the "admission fee" is eliminated, my brethren write positively that it would not be a violation of the Sunday law to operate the picture show. So the labor question does not enter into it. The statute under consideration was not enacted for the purpose of cessation from labor but to prevent the owners of the establishment from charging an admission fee to such places of amusement on Sunday. The labor is just the same, whether an admission fee is charged or is not charged. But the citation is unfortunate in another way. The Sabbath of the Jew, or the Sabbath of Genesis, if not before abolished, is substituted and abolished by the Act of the Legislature, article 302, Penal Code, under discussion so far as the police power of this State is concerned. I suppose at this late day no one could contend or assert it to be a fact, that the Jewish Sabbath, or the Sabbath of Genesis, is the Sunday of the Christian world today. Theologically and perhaps from church history viewpoint the present Sunday may be regarded as the Lord's day of the apostolic times, or the first day of the week in honor of the resurrection, and not the seventh day of the Jews, or the rest day of Genesis. Whether the present Sunday is the first day of the week or not, one thing seems to be definitely certain and settled, and that is, it is not the Jewish Sabbath, and one of the statutes of this State recognizes that fact, because it makes an exception under the labor statute, Penal Code, articles 299-300, with reference to those who observe and keep any day of the week other than our Sunday as their day of rest. Whether it be right or wrong, whether it be sacrilege or not, it is clear that the Texas statute repealed, or at least does not recognize the Jewish Sabbath under the terms of article 302 of the Penal Code, but does recognize it to some extent in article 300 of the Penal Code in the following language: "nor to any person who conscientiously believes that the seventh or any other day of the week ought to be observed as the Sabbath, and who actually refrains from business and labor on that day for religious reasons." This language seems to refer to article 299, which punishes those who labor, or compel, force or oblige his employees, workmen or apprentices to labor on Sunday. Most of the churches or denominations fail to recognize the Jewish Sabbath as our Sunday, and the legislative department does not do so, *Page 374 except as above quoted. Whether the Sunday of the present era is the Lord's day or the day observed by the earlier followers of Christianity may be shrouded in some doubt. That the early Christians seem to have adopted the first day of the week instead of the seventh day as their holy day, does not seem to admit of serious doubt. Whether Sunday, as we now term it, obtained its name from the observation of the first day of the week or whether it came under and by virtue of the royal edict of Constantine dated seventh of March, anno Domini, 321, is not entirely clear, but since the issuance of that royal edict we have had Sunday laws. Investigation historically of the origin of the Sunday law under this edict of Constantine and the causes which brought it about would be entertaining, but not necessary in this opinion. That Sunday law was very similar to article 299 of our present Penal Code. It interdicted laboring and following ordinary pursuits on Sunday except in cases of necessity. But whether it be the substitution of the Lord's day or the first day of the week, or the Sunday law of Constantine, or the Act of the Legislature would make no material difference so far as the Sabbath of Genesis is concerned. The Sabbath of Genesis is not the Sunday of Texas legislation. Our statute is purely a police regulation. It is not a church ordinance and can not be. Union of church and state can not legally occur in Texas. Our legislative bodies and political theories of government are interdicted from prescribing religious tests or mingling church with state. Every man in Texas is vouch-safed the right to worship God as he believes, and suitable laws have been enacted to protect him and those who believe and worship with him from intrusion from outsiders. "The Sabbath is made for man and not man made for the Sabbath." This is the same proposition announced in Genesis.
Therefore I think my brother Harper was unfortunate in selecting the Jewish Sabbath, under the circumstances of this case, to support his contention that a "contribution" is an "evasion" of the statute and equivalent to a "fee charged for admission." I am still of the opinion that moving picture shows are not theaters, and agree with the Legislature as above quoted that there was no law against it in Texas, and it is only so by judicial legislation of my brethren making a moving picture show a "theater," not by legislative. I refer to my dissent in the Lingenfelter case and still hold there is no violation of the law in exhibiting moving picture shows on Sunday whether there be charged an admission fee or not. The statute does not include nor attempt to include moving picture shows within its terms. The judgment ought to be reversed and the prosecution dismissed. I can not, therefore, agree with my brethren in their conclusion. *Page 375