Commonwealth v. Amer. Baseball Club of Phila.

Argued April 12, 1927. Defendant, a corporation of the second class and therefore organized for profit, was incorporated under the General Act of April 29, 1874, P. L. 73, and its supplements, for the purpose of organizing and maintaining a team or club for the playing of baseball. It holds a franchise as a member of the American League of professional baseball clubs and owns a baseball park known as Shibe Park, situated in the City of Philadelphia. All its players are paid and it charges the public an admission fee to see the games. In the summer of 1926, appellant announced that it intended playing professional baseball at its parks on Sundays, and on Sunday, August 22d, it did play a game of professional ball with another team of the American League, to which the public was admitted on payment of an admission fee. Thereafter the attorney general in behalf of the Commonwealth filed the suggestion for the writ of quo warranto in this proceeding, his averment being that the playing of the game of baseball on Sunday violates the Act of April 22, 1794, 3 Smith's Laws 177, and that appellant is without power or authority of law, under the letters patent granted to it, to play baseball on Sunday. The answer of defendant denied that the playing of baseball on Sunday is a violation of the Act of 1794 or that it is without authority to play the game on that day and averred that the writ of quo warranto would not lie against it because the sole penalty for its so doing is the payment of the sum of four dollars as provided in the act. The attorney general having demurred to the answer, the court below after hearing sustained the demurrer and entered a judgment that defendant be ousted from any right, privilege or authority to maintain or conduct upon its grounds any game of professional baseball on Sunday and directed that a perpetual injunction issue restraining it from so doing; from the judgment and decree thus entered defendant brings to us this appeal.

The questions we are asked to pass upon may be thus summarized: (1) Is the playing of professional baseball on Sunday as defendant played it a violation of the Act of 1794? (2) Is the act unconstitutional for uncertainty? (3) Is quo warranto the proper remedy and the judgment entered a proper one?

As to the first and main question we fail to see how, when the language of the act is called to mind and account is taken of what defendant is and what it actually did, it can be affirmed that the statute was not violated. To hold otherwise would mean that words do not have their ordinary meaning. The statute says "If any person shall do or perform any worldly employment or business whatsoever on the Lord's Day, commonly called Sunday, works of necessity and charity only excepted . . . . . . and be convicted thereof, every such person so offending shall, for every such offense, forfeit and pay four dollars, to be levied by distress; or in case he or she shall refuse or neglect to pay the said sum . . . . . . he or she shall suffer six days imprisonment in the house of correction of the proper county." The word "worldly" as here used means "concerned with the enjoyments of this present existence, secular," "not religious, spiritual or holy." Chief Justice LOWRIE, speaking for the court in Com. v. Nesbit, 34 Pa. 398, 409, said: "Very evidently, worldly is contrasted with religious, and the worldly employments are prohibited for the sake of the religious ones." We cannot imagine in this sense anything more worldly or unreligious in the way of employment than the playing of professional baseball as it is played today. It is not only worldly employment which is forbidden, but business. There are businesses which are not trade or commerce: Hooper v. California, 155 U.S. 648. Can any one hope to successfully contend that today's professional baseball enterprises are not business? It was taken for granted by the Supreme Court of the United States that they are. "The business is giving exhibitions of baseball": National League v. Federal Baseball Club, 259 U.S. 200. We think no one would argue that conducting a circus is not a business or running a theater is not and yet there is no difference between them and playing professional baseball. In all three the participants are hired to give the exhibition and the public is admitted for a price. Pertinent to this line of thought is what was said by Mr. Justice STRONG in Sparhawk v. Union Passenger Ry. Co.,54 Pa. 401, 409, "Many might be found, doubtless, who would affirm on oath that theatrical representations are conducive to mental and bodily health, and that such recreation as they afford is a necessity. Such a construction of the statute would make it but an empty sound. It would be losing sight entirely of the objects sought to be secured, the observance of a day of rest for the community, thereby enabling every one to worship God according to the dictates of his conscience, without distraction, and without disturbance, and thus giving a check to vice and immorality. A construction that leads to such an absurdity must be erroneous."

The claim here made, — the right to play baseball on every day of the week notwithstanding the Act of 1794, — is the same that was made for the licensees of taverns in Omit v. Com.,21 Pa. 426, and in the opinion in that case completely answered. In Com. v. Naylor, 34 Pa. 86, the question presented was whether a sale of liquors on Sunday by a licensed innkeeper was an indictable offense, at that time there being no statute covering Sunday selling. In answering the query as to whether the license authorized its holder to sell liquor on Sunday, it was said (p. 88): "Certainly not; because the Act of Assembly of 1794 forbids any worldly employment . . . . . . on Sunday." It would be a difficult matter to state a satisfying reason why the sale of liquor on Sunday is a worldly employment and the sale of admission to see a baseball game is not. In that case the license from the Commonwealth gave the right to sell liquor; in the one at bar the charter the privilege of conducting games of ball, but neither privilege from the State can override its laws. This same principle is announced in Johnston v. Com., 22 Pa. 102. The Superior Court in Com. v. Coleman, 60 Pa. Super. 380, decided that the playing of professional baseball on Sunday was a violation of the Act of 1794, even though no admission be charged. Nothing brought to our attention leads us to otherwise conclude. In that case it was conceded that had an admission fee been charged it would have been a worldly employment.

Christianity is part of the common law of Pennsylvania (Updegraph v. Com., 11 S. R. 393) and its people are christian people. Sunday is the holy day among christians. No one we think would contend that professional baseball partakes in any way of the nature of holiness and when contrasted with things which do, it is bound to be categoried as worldly. Great emphasis is laid upon the fact, in appellant's brief, that the baseball game was conducted without undue noise, that there were no disturbances, and altogether in a manner not to annoy in the slightest those living in the neighborhood of the ball park or to interfere with religious worship. It is not necessary that one, in carrying on a worldly employment on Sunday, should do any of these things before being guilty of a violation of the act, nor is it essential that there should have been a breach of the peace: Com. v. Foster, 28 Pa. Super. 400. Our conclusions must be that the defendant, a corporation existing for profit, in doing the acts against which the Commonwealth complains, was engaged in and performing a worldly employment and business on Sunday and therefore violating the Act of 1794.

On appellant's second proposition that the act is unconstitutional for uncertainty, we think very little is required to be said. See 37 Cyc. 541; 12 C. J. 1275. It has been on the statute books for 133 years and has been the subject of much judicial consideration. When its language is given its ordinary not a strained construction, its meaning we think is plain. It may be that those who do not wish to understand or abide by its provisions find them uncertain; surely those who wish to follow the custom of our people in Sunday observance do not so find the interdictions of the statute. We can see no basis whatever for the argument that the act violates the 14th Amendment to the federal Constitution.

This brings us to the third question presented by appellant, the one most stressed in oral argument and in printed brief: Is quo warranto the proper remedy and the judgment entered a proper one? In passing upon this question, it is important at its threshold to consider who brought the proceeding. It was initiated by the attorney general, the chief law officer of the Commonwealth and necessarily has behind it the approval of the State's highest executive officer, the Governor. The people's mandate to him in their fundamental law (Constitution, article IV, section 2) is "The supreme executive power shall be vested in the Governor, who shall take care that the laws be faithfully executed." This proceeding was brought to the end that this mandate should be fulfilled.

Appellant does not contend that a corporation may not be ousted of all its franchises for wilful misuser. If it may be ousted from all of them, certainly it may be of part. A corporation may be ousted from the exercise of powers not granted and powers forbidden to be exercised (Act June 14, 1836, section 11, P. L. 621; 22 R. C. L. 672; High's Extraordinary Legal Remedies (3d ed.) sections 647, 648; Com. v. Delaware Hudson Coal Co., 43 Pa. 295; Com. ex rel. v. Northeastern Elevated Ry. Co., 161 Pa. 409) and the way to oust it is by writ of quo warranto: Kishacoquillas Turnpike Road Co. v. McConaby, 16 S. R. 140. It is especially the province of the attorney general to sue out such writ in cases of public wrong: Murphy v. Farmers' Bank of Schuylkill Co., 20 Pa. 415.

Appellant argues that its charter gives it express power to play baseball. This may be admitted and yet there be no denial of the right to the writ which is one of inquiry: By what warrant are the acts done of which complaint is made? It does not avail to say to the Commonwealth, you granted me the privilege to do this thing, if it appears that what is being done under cover of the charter is unlawful. If all that was being carried on was unlawful, then there would be no warrant for its doing and no question of the propriety of the writ; if part of what was being carried on was lawful and part was not, then there would be warrant only for that which was lawful; what was unlawful, not being justified, would have to cease. It would seem to be well nigh ridiculous to hold that by its writ of quo warranto the Commonwealth may interdict that which is entirely unlawful but cannot lop off that part which is not within the law. The use of quo warranto to inquire into particular acts of private corporations alleged to be unlawful is adverted to in High's Extraordinary Legal Remedies, sections 677b and 677c. It was said in Com. v. Banks, 198 Pa. 397, that quo warranto would be a proper remedy to restrain a business school, not having authority to confer degrees, from unlawfully claiming to be a "university." It is argued that under its charter defendant has the express power granted to it to play professional baseball and nowhere therein is it prohibited from conducting this undertaking on Sunday. Neither was the innkeeper in the case heretofore cited prohibited in his license from selling liquor on Sunday, yet this court denied him the right. It would be an unthinkable proposition that the Commonwealth would create organizations to break its own laws. Every corporation which it calls into existence by letters patent takes its charter subject like natural persons to the rule of and obedience to law. Its charter is a grant of lawful privileges, not a warrant to violate any law. Violation of the Act of 1794 is a crime: Com. v. Eyre, 1 S. R. 347; Com. v. Wolf, 3 S. R. 48; Com. v. Smith, 266 Pa. 511; Com. v. Coleman Co., 60 Pa. Super. 380; Com. v. Shields, 50 Pa. Super. 194. "Whenever the attorney general shall have reason to believe . . . . . . that any corporation has . . . . . . exercised any power, privilege or franchise, not granted or appertaining to such corporation, it shall be his duty to file . . . . . . a suggestion [for a writ of quo warranto] and to proceed thereon for the determination of the matter": Act June 14, 1836, P. L. 621. We can think of no instance in which the attorney general can move with greater propriety to fulfill his duty under this requirement than in such an instance as the one before us, where one of the State's creatures, a corporation of its creation, avows its right and power to nullify a criminal statute. If appellant's argument in this respect were to be upheld, then by the same token every merchandising corporation granted the privilege under its charter to sell its wares could open its doors for trade on Sunday and the day as it has been observed in the United States since the arrival of the first immigrants would be at an end and secular doings would be the same as on other days of the week. There is and could be no implied power in a corporation to violate an Act of Assembly. "The doctrine of implied powers is not to be stretched to permit that to be done by a corporation which the legislature has previously said shall not be done": Pittsburgh Rys. Co. v. Pittsburgh, 226 Pa. 498, 502. We said in Kenton v. Union Passenger Ry. Co., 54 Pa. 401, 454, that "The company's violation of the Sunday law can be redressed only by enforcing the statutory penalty, or by a proceeding on behalf of the Commonwealth against the company for misuse or abuse of their charter."

We agree, and have so announced, that courts should act with extreme caution in proceedings which have for their object the forfeiture of corporate franchises (Com. v. Monongahela Bridge Co., 216 Pa. 108) but it has been our policy from a very early date not to limit the use of quo warranto proceedings. "The remedy by quo warranto is by statute, and is special; and as the statute is remedial it is to be so construed and administered as to advance, that is, to render effective, the remedy. This is the rule of all remedial statutes": Com. v. Dillon, 61 Pa. 488, 490. See also, Com. ex rel. v. Stevens,168 Pa. 582, 587, and High's Extraordinary Legal Remedies (3d ed.) section 622.

The argument that the Act of 1794 provides the sole penalty for its violation cannot be made in this proceeding where the Commonwealth itself through the attorney general seeks to call one of its creatures to account. "There can be no doubt that a corporation may be proceeded against by quo warranto for a misuse or perversion of the franchise conferred upon it by the State, notwithstanding its officers and agents may at the same time be amenable to the criminal law for offense committed by them in the perversion of such franchise": State ex rel. Hadley v. Delmar Jockey Club, 200 Mo. 34, 92 S.W. 185; 9 A. L. R. 106. Speaking through Mr. Justice SIMPSON, in Com. ex rel. v. Wilkins, 271 Pa. 523, we made it clear that a penalty provided in a penal statute for those who refuse to enforce it did not mean that that is the exclusive "remedy"; certainly it should not be that the presence in a penal statute of a penalty for individuals who break it should preclude the attorney general from proceeding against a corporation, not by way of imposing a penalty but with a view to prohibit the misuse of a franchise granted by the State. We do not understand that anything said in Com. v. Smith, 266 Pa. 511, is at variance with this view; that was a proceeding in equity.

As to appellant's contention that "The sentence of corporate death cannot be imposed for minor infractions which do not go to the essence of the corporate franchise nor inflict injury upon the public generally," while we are not prepared to say there is no public injury by a wilful violation of a criminal law, it would seem that all necessary to be said is that the corporation is not under sentence to death; the court has ousted it only from any right, privilege or authority to maintain or conduct any game of professional baseball on Sunday.

The judgment and decree of the court below are affirmed at the cost of appellant.