Sportatorium, Inc. v. State

My views on the question decided in the majority opinion are expressed with cited authorities in the dissenting opinion of Sportatorium, Inc., v. State, Tex.Civ.App. 104 S.W.2d 912, 916. I find further support as to the uncertainty of the statute in the various holdings of our courts in attempting to lay down a rule for the enforcement of the law. Obviously, the Legislature attempted to regulate "personal, physical or mental contests" by prohibiting such contests to run continuously for a period of 24 hours, and not more than one such contest at the same place or location within any period of 168 hours. The policy of enacting this law, and with what the Legislatures of other states have done to regulate or prohibit such amusements, courts are not concerned.

Bearing upon the uncertainty of the provisions, attention is directed to the case of Wolfe v. State, 127 Tex. Crim. 213, 75 S.W.2d 677, in which the defendant was charged with the violation of this statute. "The state's proof showed that the schedule prepared by the promoter of the contest provided for forty-five minutes of walking or dancing and fifteen minutes of rest for each contestant. This schedule was adhered to during the entire time the contest was in progress; that is, the contestants rested fifteen minutes out of every hour. Thus during the twenty-four hour period each contestant rested six hours, all resting at the same time. No new contestants entered after the contest opened." The Court of Criminal Appeals of Texas, after having construed the word "continuous," expressed the opinion that the proof fails to support the allegation "that the contest continued longer than twenty-four hours in one continuous competitive period of endurance." Contrary to this holding, the majority of this court, in the case of Sportatorium v. State, supra, with the identical state of facts, said: "The contest was * * * a continuous one and by the same participants, except those eliminated, and was broken only at short intervals, which * * * did not break the continuity of the contest." In the dissenting opinion, I expressed the view that such facts did not constitute a continuous contest. Then, again, in the case of Braden v. State, 108 S.W.2d 314, the Waco Court of Civil Appeals, with similar facts before it, held that: "The brief periods of rest allowed between the periods of work were so short that they were entirely out of proportion to the normal period of rest usually allowed for the recreation of the human body. There was therefore no substantial cessation of the contest."

So here we have one member of this court and the Court of Criminal Appeals of Texas construing this statute to mean one thing, and two judges of this court and the Waco Court of Civil Appeals construing the statute to mean another, on identically the same state of facts. Manifestly, the expression of the Galveston Court of Civil Appeals, in the case of Graham v. Hines, 240 S.W. 1015, 1021, writ of error refused, is pertinent to this situation, quoting: "The fact that the learned judges of the two appellate courts differ so widely as to what act is made a crime under this statute, it seems to us, sought to protect the citizen from the hazard of having to decide at his peril what is the act or omission on his part which is penalized."

The Penal Code of this State provides that the design of enacting it is to define in plain language every offense, P.C. 1925, art. 1; and that no person shall be punished for an offense, if "the penal law is so indefinitely framed or of such doubtful construction that it can not be understood." P.C. arts. 6, 8. The Constitution also guarantees to every citizen the right to know the nature and character of the accusation against him. Const. art. 1, § 10. In my opinion, the statute here under consideration, which has been construed by the Court of Criminal Appeals of this State as meaning one thing, and by the majority of this court and the Waco Court of Civil Appeals as meaning another, is so indefinite and uncertain as to be obnoxious to the Constitution and the statutes of the state. There is no fixed rule stated when a citizen shall know when he is within or without the law. The statute is penal in its nature. Every act made penal invades the constitutional guarantee of liability and the use of property.

Furthermore, there is no rule more fixed than the one requiring that a penal statute, invading and inhibiting the personal conduct and prerogative of citizens in their relations and in the use of their property, must operate uniformly and equally upon all alike. Section 6 of the statute under consideration, article 614b, P.C., provides: "The provisions of this Act shall not apply to any athletic contest of schools, colleges or universities of the State, nor to any trial contest for the purpose of testing the strength and capacity of materials and machinery of any kind." This, I think, makes the statute obnoxious to the constitutional provision of equal rights, immunities, and privileges to all citizens.

In the case of Jackson v. State, 55 Tex. Crim. 557, 117 S.W. 818, the Court of Criminal Appeals of Texas struck down an act of the Legislature regulating the practice of barbering, as being unconstitutional, in that it discriminated and was not equal and uniform. The law there under consideration was almost analogous to the law here involved. It provided that: "Nothing in this act shall apply to the students of the State University or other schools of the state who are or may be making their way through school by serving as barber, or those serving as barber in any of the eleemosynary institutions of the state; nor shall the provisions of this section apply to persons serving as barber in towns of 1000 inhabitants or less." Acts 1907, c. 141, § 8. The court, in considering that provision, said: "Whatever may have been the thought in the legislative mind as to why these classes or persons should be exempted, in violation of the provisions of the Constitution, we are of opinion that such intent cannot operate, and we are of opinion that the favored and exempted classes mentioned, especially with reference to the barbers in schools and eleemosynary institutions, cannot be exempt, and this law remain constitutional. Sanitary regulations should operate upon all alike, when subject to same conditions" — thus holding the law to be unconstitutional.

In the case of Ex parte Baker, 127 Tex. Crim. 589, 78 S.W.2d 610, 613, the Court of Criminal Appeals had before it a city ordinance which discriminated between the products of bakeries located within the boundaries of the city and the products of those located without the boundaries of the city, with reference to the sale of their products within the city. In holding the ordinance unconstitutional, the court said: "An ordinance which attempts to distinguish between persons engaged in the same or like business merely on the basis of their residence or the location of their business houses is in contravention of the constitutional provisions hereinabove quoted. We think such ordinance whether it purports to be an exercise of the police power or the power to tax is discriminatory in that it is not based upon any reasonable classifications. A city or town may under its police power make and enforce within its limits any traffic, sanitary, or health regulations which are not in contravention of the organic law of the land, but it cannot, under the guise of its police power, enact any ordinance which would deny any man or set of men equal rights or abridge their privileges or immunities, or deprive them of their property without due process of law."

It is the peculiar province of the Court of Criminal Appeals of this State to construe penal statutes, and its opinions should have controlling force on the action of the civil courts of the State in construing such laws, and for that reason the expressions of the Court of Criminal Appeals on analogous statutes are quoted, and, I think, bear directly on the issue here involved.

Conceding that the Legislature, in enacting this statute, was prompted by a worthy motive and sincere belief that the type of amusement prohibited constituted an evil, nevertheless, the Legislature was circumscribed by constitutional limitations which denied to it the power to declare by statute an act done by one of its citizens is illegal, and that the same act done by another of its citizens, or by another group of its citizens of the same class in relation to the act, is legal.

If "personal, physical or mental endurance contests, conducted in public competition for prizes, awards or admission fees and continuing longer than twenty-four hours" constitute an evil and a nuisance, a proper subject of police regulation by the State, the constitutional reservation does not permit the Legislature to declare that any such act done or committed at one place or location is legal and the operators not amenable to the law; and that the same identical act done at some other place or location is illegal, and the operators subject to the penalty subscribed. If such a law stands as a proper police regulation, then there is nothing as I can see to prohibit any person or group of persons from opening up and operating a school, college, or university, at some place or location, it matters not where, and then, under the auspices of such an improvised institution, conduct a personal, physical, or mental endurance contest, and thus come under the exemption of the statute; while, without such school, the same party conducting such contest would come under its condemnation.

If the evil sought to be regulated is in fact a nuisance and subject to be abated and the operators thereof guilty of a crime, how can it be said that it would lose its evil characteristics if conducted by some school, college, or university of the State, and then, too, retain the evils, if conducted in the State by educational institutions outside of the State, or by individuals within the State? I do not believe it is a proper classification to allow any school within this State to do an act which is declared a nuisance by expressed statutory provisions, and to deny the same thing to schools outside of Texas, or to individuals in Texas not connected with schools, colleges, or universities. Clearly, if such endurance contests are permitted by schools, colleges, or universities of this State and is denied to schools, colleges, and universities out of this State, and to individuals or groups of individuals in other places or localities, the law so declaring deprives the latter class of equal immunities and privileges guaranteed under both the State and Federal Constitutions.

I do not deem it necessary to enter into a further discussion of the question, but respectfully indicate my inability to agree with my associates.