*75ON MOTION ROE REHEARING.
The plaintiff in error asks for a rehearing in this case, for the following reasons:
“(1) The present opinion is based on the idea (syllabus 1-a) that (a) the Theatre Company itself operates the picture-show, and (b) sells tickets to the patrons, and (c), ‘turns over’ to the Legion’s charities the net proceeds, after paying the expenses; and the member or members of this court concurring in said opinion have overlooked the undisputed fact in the record that (a) it is the American Legion that operates the picture-show on Sunday (and not the theatre company) and (b) that no tickets are sold (but on the contrary said proceeds belong to the Legion’s charities from the moment when they are given). The great importance of this error in the present opinion appears when we consider the next paragraph (numbered 2) below.
“(2) The present opinion overlooks and fails even to mention the first point (and the point most strongly urged by plaintiff in error, supported by the most numerous authorities, on pages 29 to 42 of our original brief), viz.: That since the record shows (and even the present opinion admits this) that the picture-show is being operated by the American Legion, it follows that the lawfulness of the acts of the employees operating said picture-show must be determined and decided according as the acts of the employer were lawful or unlawful; — in other words, the agent (employee)' can not be guilty unless the principal (American Legion) is guilty,— this point having already been ruled expressly in favor of plaintiff in error, in New York, Massachusetts, Maine, South Carolina, and other States, without any decision anywhere to the contrary, and having been also ruled (by necessary implication) in favor of plaintiffs in error, even in Georgia.
“(3) The logical result of the present opinion is that every paid choir-singer, organist, or sexton of a church in the State of Georgia violates the Sunday law, every Sunday. If the lawfulness of the employer’s acts (the church’s) do not protect these, then nothing can protect them. Every argument used in the present opinion, against the lawfulness of the acts of the employees of the American Legion, applies with equal force against the acts of such employees of churches.
“On the question as to whether or not the picture-show constituted a nuisance which could be enjoined by a court of equity:
*76“(1) Every word of the present opinion on this subject is fully answered by, and directly contrary to, the ruling of the Supreme Court in the Dean ease (151 Ga. 371(2), 373, 375 [supra], opinion by Justice George), and also in the case of Bentley v. State Board of Examiners (152 Ga. 836, 841 near top [111 S. E. 379], opinion by Justice Hines); and also in the case of Bennett v. Bennett (161 Ga. 936, 942 top half [132 S. E. 528], opinion by Justice Beck). Eor certainly in all of those cases the acts of the defendants which were sought to be enjoined were (a) fully as public and notorious as they were in this case, and (b) fully as continuous as in this case, and (c) far more certainly criminal, than in this case. It is the resolution of the court (in the 2d headnote in the Dean case), adopted without dissent, which is controlling and not the individual expressions of Justice George (though even they are in entire harmony with the resolution of the court,— and especially so are his expressions on pages 373 and 375, about the necessity of an act of the legislature declaring a crime to be a nuisance, before it can be enjoined, unless it was a nuisance at common law, as in the case of a gaming-house). The contention of the present opinion, to the effect that the Dean case is distinguishable from the case at bar, is based upon an entirely erroneous conception of the record in this case, as shown in the next paragraph.
“(2) The. present opinion is egregiously in error in saying that the trial judge, in this case, found the acts of the defendants to be a nuisance ‘because those acts did constitute a public and continuous violation of the law against working on Sunday.’ The fatal error in this statement is the incorporation of the words ‘against working’ therein. What the trial judge did hold (and he so certified in the record) was that said acts of the defendants were a nuisance, (a) ‘because those acts did constitute a public and continuous violation of the law’ (this regardless of what particular law was being violated), and (b) that said violation occurred ‘on Sunday’ (that is, at a time when the people are supposed to be in an especially moral mood, and therefore should not be disturbed by seeing any law violated ‘publicly and continuously’). So the truth appears, that, in this case, the trial judge based his right to enjoin solely upon the ground that the acts sought to be enjoined (a) were unlawful (regardless of what law was being violated), and (b) occurred on ‘Sunday’ (at a time when the violation might be *77considered more ‘flagrant/ than on any other day). The trial judge did not certify that he found the acts of the defendants to constitute a nuisance because the ‘ character, health, cleanliness, or happiness’ of the public was affected in the slightest degree.
“(3) The present opinion inextricably confuses and commingles two separate things, to wit, (1) the effect of the defendants’ acts upon the defendants’ employees, on the one hand; and (2) the effect of such acts on the public generally, on the other hand. Even in the ease of a real public nuisance, it is the latter only which is entitled to any consideration.
“(4) The present opinion inextricably commingles and confuses the legal authorities bearing on two separate things, to wit, (1) those bearing on a suit by private individuals, to enjoin a private nuisance, and protect property rights, on the one hand,— and those bearing on a suit in the name of the State to enjoin a public nuisance, on the other hand.”
In the original opinion filed by the writer, he did not set out all of the facts in the record, because to have done so would have made the report unduly long, but every part of the record was carefully examined; and after a review of the entire record, including the petition, amended petition, the intervention of the American Legion, the answers of the defendants, and the evidence in the case, including the motion for rehearing, I am unable to reach a different conclusion from that arrived at in the original opinion. One or two important features of the evidence in the ease were omitted in the original opinion, and will be set out here. Eor instance, on page 13 of the record is the following advertisement by the Albany Theatre as to one of the pictures exhibited on Sunday, November 3, to wit: “With the Sunday opening to-morrow, Nov. 3rd, all Sunday performances will be under the auspices of the American Legion. Albany Theatre, Sunday, Mon., Tues. Show Boat. Sunday — Monday—Tuesday. Southwest Georgia’s Magnificent Theatre presents Edna Ferber’s great story of young love, screened in such magnificent manner as to make you catch your breath. Imagine the color of life aboard a show boat — of yearning hearts separated by circumstances that actually brought them together. Yes, in each other’s arms, but worlds apart! What drama! Never before anything like it on the stage or screen. Carl Laemmle’s picture magnificent, played by Laura La Plante, *78Joseph Schildkraut, Otis Harlan, Alma Rubens, Emily Eitzroy, Jane La Verne, and hundreds of others. Don’t miss it. Hear the Zeigfeld stars singing the songs that made them famous. Hear Helen Morgan sing ‘Bill,’ Jules Bledsoe and the Jubilee Singers sing ‘01 Man River,’ Aunt Jemima and the Plantation Chorus sing ‘Hey Feller.’ Hear ‘Can’t Help Lovin’ That Man,’ ‘Make Believe,’ ‘Why Do I Love You’ and other Ziegfeld hits you’ll never forget. Added attraction: Hugo Reisenfeld and his orchestra of 100 pieces. Sunday performances at 1:30 to 6 :16 in the afternoon, and one night performance starting at 9:00. Admission 50‡ at all Sunday showings(Italics ours.)
It is true that defendants say that the statement “admission 50^ at all Sunday showings” was omitted from subsequent'advertisements, but this advertisement was sufficient to authorize the court to hold that admission fees were charged by the defendants to at least one of the shows put on at the Albany Theatre. In the bill of exceptions complaint is made in paragraph (b) that “the court erred in granting said injunction, for the reason that, independently of all other points, the plaintiff in said case failed to show (defendants and each of them contend) that the acts of the defendants complained of constitute a public nuisance, such as could be enjoined by a court of equity; and it is here recited as a matter of fact, and certified by said judge, that said judge did find said acts of the defendants to constitute a public nuisance, because said acts did constitute a public and continuously recurring violation of the law on Sunday.” (Italics ours.) The brief of counsel for plaintiffs in error states: “Thus it distinctly appears in this record that the trial judge did not find from the evidence that there was anything about the acts of the defendants (plaintiffs in error) which did constitute them a nuisance, except and unless the mere fact that said acts constituted ‘public and continuously recurring crimes, would under the law necessarily result in their being a nuisance which equity would enjoin,’ in other words the decision in the case at bar is based upon the legal proposition that any ‘public and continuously recurring’ crime may be enjoined by equity. We take sharp issue with our opponents upon this last proposition, as well as upon the proposition that the acts of plaintiffs in error do really constitute ‘crimes’ at all.” So, the present contention of the plaintiffs in error, that the court below did not pass upon ques*79tions of fact to the effect that acts of the defendants did constitute a public nuisance, is contradicted by the bill of exceptions itself, and a careful reading of the authorities cited in the original opinion, and of the entire record in this case, will show that such acts under the law did constitute a public nuisance.
As to the question of whether entrance fees to the theatre was a charge, or was voluntary, the petition alleges: That said “picture-show was operated under the same license issued by the City of Albany to said defendants aforesaid, and the same license paid as an occupation tax in said State and County, on each and all of the stated dates. That said pictures were furnished under the same contract for pictures as hereinbefore alleged. That said performances were all held at the same place and the usual advertisements, and the same advertising contract with Herald Publishing Company as aforesaid. That the same prices prevailed at each and all of said performances. That said performances were operated under the same lease of the building by the owners to the said operators of the Albany Theatre, and the said defendants, owners aforesaid, are hereby notified and required to have and produce the original lease contract upon the trial of this case, the same to be used as evidence on behalf of the plaintiffs, pertinent and material to the cause in question.” The contract between the Albany Theatre and the exhibitor was produced, and provided: “The exhibitor warrants and agrees that during the period each of the photo plays herein provided for shall be exhibited in said theater the exhibitor will charge for admission to said theatre [italics ours] an actual admission fee which shall not be less than 10 cents, unless a greater minimum admission charge is herein elsewhere specified, for each exhibition, and that such photo plays shall not be exhibited unless such admission fee is charged.” So, it will be seen that the contract contemplated that an admission fee should be charged for the showing of each of the “photo plays.” The allegations of the petition were verified by quite a number of citizens of Albany; and the court was authorized to find from the pleadings and the evidence that the acts complained of did constitute an open, continuous violation of law, and was a public nuisance, and to enjoin the defendants’ from showing the moving pictures on Sunday; and construing thfi order of the court in connection with the allegations of the petition, a part of which are *80set out above, and in connection with the evidence in the case, I think that the court’s order, properly construed, means that he was passing upon the question of fact; that the acts complained of did constitute a pullilc nuisance; and, as held repeatedly by this and other courts, a public nuisance can be enjoined by a court of equity. Dean v. State, supra, Walker v. McNelly, 121 Ga. 114, 115 (48 S. E. 718). The Dean case, and similar authorities, are cited in the brief of plaintiffs in error, and on motion for rehearing they complain that such authorities are in favor of plaintiffs in error. As pointed out in my original opinion, these cases are not controlling.
And it is contended that the acts complained of did not work injury, damage, or hurt to the public, as provided by law. This record shows that there were resolutions adopted against exhibiting these Sunday shows by a number, if not all, of the Protestant churches in Albany, and certain nearby towns, and that it was alleged that the showing of these pictures on Sunday was dividing the community into- factions, and causing factional strife. What greater hurt or injury can come to a community than that, I am unable to perceive. I endeavored to point out the original opinion that the showing of these pictures on Sunday under the auspices of the American Legion was-not entirely free of charge, for the reason that the same persons were operating the picture-show who performed that service on week days for the Albany Theatre, and that they - received the same pay, and that the pro rata cost qf the films, rent charges, advertising, and all the costs, came out of the receipts from the exhibition of the pictures; and this being so, I do not see how it can be said that the exhibition of these pictures was absolutely free, and was a work of charity. It is contended by the plaintiffs in error that the employees who operated the picture-show were employees of the American Legion, and not of the Albany Theatre Company,', and therefore, under the law, unless the Albany Theatre Company were guilty of a violation of the Penal Code of 1910, § 416, the-agents, the employees of the Legion, were not guilty. But it will be borne in mind that the violation of section 416 of the Penal Code of 1910 is a misdemeanor, and in misdemeanor cases all are principals (Kinnebrew v. State, 80 Ga. 232, 5 S. E. 56; Jackson v. State, 154 Ga. 544, 114 S. E. 811); and therefore, where it appears that all of the defendants, including *81the paid employees, and the American Legion, had some part in putting on the shows on Sunday, in violation of law, all were equally amenable to section 416 of the Penal Code 1910. Those who think that the laws of Georgia are too stringent and not sufficiently modern should appeal to the legislative branch of ’the governmént, which enacted the present law.