City of St. Joseph v. Elliott , 47 Mo. App. 418 ( 1891 )

Ellison, J.

This record presents the single question whether the defendant, who manages an opera house in the city of St. Joseph, a city of the second class, and gave therein a theatrical performance on Sunday evening, September 28, 1890, at which he made the same charge for admission which he made on other nights, is guilty of a misdemeanor under the provisions of an ordinance of said city which provided as follows: “ Sec. 6. Business houses not to be kept open on Sunday. — No person shall, in this city, play on Sunday, at billiards, ten pins or other games of amusement, or shall, on that day, keep his store, shop or other place of business open, or sell or offer to sell any goods, wrares or merchandise, and every person so offending shall be deemed guilty of a misdemeanor.”

The city contends that the defendant is guilty because the words, “other place of business,” in the section quoted include a theater, and the defendant denies that those words, as there used, have any reference to a theater. This difference of opinion constitutes the whole subject of contention in this appeal taken by defendant.

Defendant contends that the general words, “or other place of business,” refer only to such places of business as are ejusdem generis with stores and shops. We examined a similar question to this in State v. Williams, 35 Mo. App. 541. That case, like this, was in reference to matters prohibited on Sunday. Not things prohibited generally, but on that day. The object of the statute in that case and the ordinance in this was to prevent a desecration of the Sabbath. There is no doubt of this. So, then, while the familiar rule, “ that where particular words of a statute are followed by general, — as if, after the enumeration of classes of persons or things, it added ‘and all others,’ — the general words are restricted in meaning to objects of the like kind with those specified,” is not questioned, yet the object of the rule must be kept in view. That object is to help carry out the legislative intent and not to thwart it. “ Where, therefore, the application of the rule would be in the face of the evident meaning of the legislature, it will not be applied. Bish. Stat. Crimes, sec. 246; Woodsworth v. State, 26 Ohio St. 196. So, where the expression in a statute is special or particular’, but the reason is general, the expression should be deemed] general. 1 Kent, 462. ‘ In construing, statutes, penal as well as others, an interpretation must never be adopted that will defeat its own purpose if it will admit of any other reasonable construction,’ 9 Wheat. 381.” State v. Williams, supra; State v. Vindquest, 36 Mo. App. 584. The words, “ or other place of business,” must be allowed a use or operative effect. Defendant seems to contend that they should be confined to places of like kind, to stores or shops where merchandise is handled. This is too narrow for the evident general object of the ordinance. Allowing such contention to be well-founded, you could not punish him who kept open on Sunday his billiard hall or tenpin alley. For the portion of the ordinance which names these is directed at the players and not the proprietors ; and a billiard hall or a ten-pin alley is not a store or shop. Such hall or alley is,-however, the place of business of the proprietor, and to catch him you must utilize the words, “or other place of business.” Evidently these words were intended to embrace a place of amusement which is kept as the “place of business” of the proprietor. The defendant was rightly convicted, and with-the concurrence of the, other judges the judgment is affirmed.