DocketNumber： No. 1267.
Judges： Harper, Davidson
Filed Date： 11/29/1911
Status： Precedential
Modified Date： 11/15/2024
Relator was prosecuted under the following complaint in the Corporation Court of the city of Waco, to wit: "Personally appeared before the undersigned authority, J.P. Moore, who on oath, says that W.M. Lingenfelter, in the city of Waco, in said State of Texas, on or about the 16th day of April, A.D., 1911, who was then and there the proprietor, agent and employe, of a place of public amusement, to wit: what is commonly known as a picture show, the same being in the nature of a theater where motion pictures are displayed, did then and there unlawfully and willfully open and permit said place of public amusement to be open for public amusement on Sunday, said 16th day of April, 1911, then and there being Sunday, and did then and there on said Sunday, permit a performance to be given and exhibited in said place of public amusement, to wit, a display of said motion pictures, for public amusement, and for admission to which a fee was charged, against the peace and dignity of the State."
When tried, relator was adjudged guilty, and his punishment assessed at a fine of $20.
This prosecution was brought under article 199, of the Penal Code, which, as applicable to this offense, reads as follows:
"Article 199. Any proprietor of any place of public amusement, or the agent or employe of any such person, who shall permit his place of public amusement to be open for the purpose of public amusement on Sunday, shall be fined not less than twenty nor more than fifty dollars. The term, place of public amusement, shall be construed to mean circuses, theaters, variety theaters and suchother amusements as are exhibited and for which an admission fee is charged."
When relator was convicted, he applied to Hon. Richard I. Munroe, judge of the 54th Judicial District, for a writ of habeas corpus, which was refused, when an application was made to Hon. W.L. Davidson, presiding judge of this court, who granted the writ.
The contention of relator is that the complaint charges no offense under the Penal Laws of this State, and if this be true, of course, he would be entitled to be discharged. Under the agreement of counsel *Page 34 for relator and the city attorney of the city of Waco, the case was submitted on the following agreed statement of facts:
"It is agreed between the State and defendant, for the purpose of this case only, that the defendant, William Lingenfelter, is the proprietor and manager of a moving picture show located near the corner of 6th and Austin Streets in the city of Waco, McLennan County, Texas, and known as ``The Ideal.'
"It is further agreed that the said William Lingenfelter, on Sunday, the 16th day of April, 1911, kept said picture show open to the public and gave an exhibition of moving pictures therein and charged an admission fee of five cents for each person who entered said place and saw said exhibition.
"Said moving picture show was then and there conducted in an ordinary building about twenty-five feet wide and one hundred feet deep. At the rear of said building, a screen of canvass was placed, upon which said pictures were exhibited by reflection from the moving picture machine hereinafter referred to. Near the front of the building, was an elevated stand upon which was situated an instrument commonly known as a moving picture machine and the pictures upon the screen were produced by running a long film, commonly known as a reel, through said moving picture machine, which caused the exhibition of pictures upon said screen. Said film, or reel, consisted of a great number of separate negatives and the running of the same through the machine, produced to the eye the appearance of the persons in said pictures moving to and fro as in case of ordinary moving picture shows.
"There was no stage in said room and there was no vaudeville performances and no actors and no exhibition except the said pictures on said screen.
"The said pictures so exhibited were representations of scenes in the life of Christ, one of said scenes representing the Last Supper, another the Garden of Gethsemane, and others representing other scenes in the life of Christ.
"During said exhibition, a man stood near said screen and explained the several pictures to the audience as they were exhibited.
"Said place is run exclusively as a moving picture show and there is no exhibition of vaudeville or other entertainment in the ordinary every-day operation of the same, the sole entertainment furnished being the exhibition of such moving pictures.
"It is agreed that the picture show complained of in this case, and run by defendant, is an ordinary ``moving picture show' without vaudeville or other attractions, and the court may take judicial cognizance of the nature and character of such shows.
"It is further agreed that this case shall be submitted to the court on this agreed statement of facts without other evidence, and that the sole issue to be determined is whether or not the complaint in this case charges an offense against the law or whether or not the above *Page 35 facts constitute a violation of article 199, of the Penal Code of the State of Texas."
Under the agreement, it will be noticed that the only question for this court to decide is "whether or not the complaint charges an offense against the law," that is, is a moving picture show embraced within the provision of article 199 of the Penal Code above quoted? Counsel for relator earnestly insist that it is not embraced within the provisions of that article, and have filed an able brief in support of their contention, and in the beginning, lay down the following propositions and cite the following authorities:
"1. No person shall be punished for any act or omission unless the same is made a penal offense and a penalty affixed thereto by the written law of this State. 2. Article 199, of the Penal Code, having provided that the term ``place of public amusement,' as therein used, shall be construed to mean circuses, theatres, variety theatres and such other amusements as are exhibited and for which an admission fee is charged, no public amusement whatever though exhibited on Sunday, and a fee charged for admission thereto, is prohibited by said article, except those specifically named in said article, and such as are of the same kind and class as those named therein. 3. A moving picture show, pure and simple, without vaudeville or other attractions, is not a circus, theatre or variety theater. 4. Such a moving picture show is not of the same kind or class of amusements as circuses, theaters, or variety theaters. 5. The exhibition of moving pictures on Sunday and the charging of an admission fee therefor, not being prohibited by said article 199, or any other article of the Penal Code of the State of Texas, the conviction of applicant in the Corporation Court was without authority, and unlawful, and his confinement by virtue of said judgment, was unlawful, and he is entitled to be discharged from such unlawful restraint and custody.
"Authorities on first proposition: Penal Code, arts. 1, 3, 4, 5 and 6. On second proposition: Ex. Parte Roquemore,
These propositions bring the matter properly before us for our decision, and we will discuss them in their order.
1. That no person can be punished for any act or omission unless the same is made a penal offense by the laws of this State, need not be discussed. Article 3, of the Penal Code, provides: "In order that the system of penal law in force in this State may be complete within itself, and that no system of foreign laws, written or unwritten, may be appealed to, it is declared that no person shall be punished for any act or omission, unless the same is made a penal offense, and a penalty affixed thereto by the written law of this State." This is the settled law of this State.
2. Under this proposition is brought up the construction to be placed on the language of article 199, and especially the words"theaters and such other amusements." We are cited to Ex Parte Roquemore, decided by this court in 60 Tex.Crim. Rep., 131 S.W. Rep., 1101, and Ex Parte Muckenfuss,
"It will be noted that this article undertakes to name and designate the place of public amusement, and it is said that it shall be so construed as to mean circuses, theaters, variety theaters, and such other amusements as are exhibited and for which an admission fee is charged, and shall also include dances at disorderly houses, low dives, and places of like character, with or without fees for admission. That baseball is not specifically named, of course, is clear. What are we to understand by the general term, ``and such other amusements as are exhibited and for which an admission fee is charged?' Clearly, we think amusements of a like or similar character. This seems to have been the construction given to a similar statute by many courts. It has been said that ``baseball is not prohibited by a statute which provides for the punishment of any one convicted of horse racing, cock fighting, or playing at cards or game of any kind on Sunday.' State v. Prather,
"In the case of Ex Parte Muckenfuss, 52 Tex.Crim. Rep., 107 S.W. Rep., 1131, we had occasion to review and consider at length the rule of construction applicable to a statute such as this. We there said: ``It is a familiar rule that, where general words follow particular and specific words, the former must be confined to things of the same kind. It has been held, also, that this rule is especially applicable to the interpretation of statutes defining crimes and regulating their punishment. See McDade v. People,
"This precise rule has received indorsement in our own courts. Murray v. State, 21 Texas Crim. App., 620, 2 S.W. Rep., 757, 57 Am. Rep., 623. In that case, Judge White says: ``The leading and controlling rule in the construction of statutes, in fact the primary and fundamental one, is to interpret them according to their true meaning and intent. To ascertain this intent, it is the duty of the court to find, by other established rules, what was the fair, natural, and probable intent of the Legislature. For this purpose, the language employed in the act is first to be resorted to. If the words employed are free from ambiguity and doubt, and express plainly, clearly and distinctly the intent, according to the most natural import of the language, there is no occasion to look elsewhere. People v. Schoonmaker, 63 Barb. (N.Y.), 47, citing McCluskey v. Cromwell,
We are also referred to the case of Ex Parte Hull,
The case of State v. Prather,
In Ex Parte Neet, 57 S.W. Rep., 1025, a Missouri case, it was held, in construing a statute reading, as follows: "Every person who shall be convicted of horse racing, cock fighting, or playing at cards, or games of any kind, on the first day of the week, commonly called Sunday, shall be guilty of a misdemeanor, and fined not exceeding fifty dollars," that baseball playing was not prohibited, saying:
"The doctrine of ejusdem generis is as rock-ribbed in the law of this State as any principle ever announced. As applied to penal statutes especially, it is only a humane doctrine, and accentuates the wisdom of the fathers when they objected to being punished for offenses which had not been declared to be offenses by the law. It observes the respective rights of the different co-ordinate branches of the government, by requiring the Legislature to enact the laws, and the judiciary to enforce, but not create, the laws, not even by construction. Baseball does not belong to the same class, kind, species, or genus as horse racing, cock fighting, or card playing."
Thus it is seen that all the cases cited under this proposition, but reiterate the doctrine announced by this court in the Roquemore and Muckenfuss cases, that is, in construing a statute, when general words *Page 39
follow specific words, the doctrine ejusdem generis applies, which term means, according to all the law writers, of similar character or species, and as applicable to this statute, would make it read: circuses, theaters, variety theaters, or amusements of similar character and kind, or of the same species, and if a moving picture show is included in that definition, it would be prohibited, otherwise it would not. Ex Parte Leland, 1 Nott
McC., 460; Spalding v. People,
As to whether a moving picture show is of the same character or species as a theater, will be discussed by us under the fifth proposition of relator, as we are now discussing the authorities cited in relator's brief.
We will discuss the authorities cited under the third and fourth propositions together, as they are, in substance, the same. We are referred to People v. Flynn, 108 N.Y. Sup., 208; People v. Lynch, 108 N.Y. Sup., 209; Keith Proctor v. Bingham, 108 N.Y. Sup., 205; People v. Hemleb, 111 N.Y. Sup., 690; Fox Amusement Co. v. McClellan, 114 N.Y. Sup., 594; Edwards v. McClellan, 118 N.Y. Sup., 181; Weisblatt v. Bingham, 109 N.Y. Sup., 545, and in the brief, copious extracts are taken from the various opinions of that court in those cases. However, to thoroughly understand the extracts quoted, one must understand the question under discussion. By reference to those opinions, it will be seen they were discussing section 265 of the Code of that State, which reads: "Public sports and shows: All shooting, hunting, fishing, playing, horse racing, gaming or other public sports, exercises, pastimes or shows upon the first day of the week, and all noise disturbing the peace of the day on Sunday are prohibited." In construing this article, it is held not to apply to any character of indoor performances, but only to outdoor entertainments. They hold that theatrical performances, moving picture shows, or any character of entertainment or exhibitiongiven in a house, is not within this statute, but it applies to entertainments given out of doors. We have read each of these cases carefully, and their application to this case we fail to understand, except it again emphasizes the doctrine of ejusdem generis, in holding the statute referring to shooting, hunting, fishing, horse racing, etc., applies to only out of door exercises and exhibitions. However, these decisions were not rendered by a court of final resort in that State, and all divisions of that court do not so hold. In Moore v. Owen, 109 N Y Sup., 585, it is held that this statute does apply to shows whether in doors or out of doors, and in all the opinions of that court it is *Page 40 held that a moving picture exhibition comes within the meaning of the word "show," and if the statute related to indoor entertainments, it would be prohibited under the statute. Other branches of that court have held contrary to those cited by relator in addition to the case of Moore, supra. For a list of them we refer to 114 N.Y. Sup., 598. The court of final resort in that State has not passed on the question of whether this statute applies to indoor as well as outdoor performances, but all the cases cited by relator, and the other cases do hold that if the statute includes "indoor performances" as well as outdoor exhibitions, then moving picture shows are within the statute. While these decisions are by what is termed the Supreme Court, yet in New York, what is termed the "Supreme Court," sits in divisions, and is not a court of final jurisdiction as is our Supreme Court. Appeal lies from their decisions to a court of final jurisdiction. But as said before, we fail to see the application to our statute, as to whether moving picture exhibitions are within its terms, because that statute names certain specific things, and is not followed by general words as is our statute, and all hold that moving picture exhibitions are included in the term "show."
We are also referred to the case of State v. Penny,
"In the case of Moore v. Owen, 58 Misc. Rep., 332, 109 N.Y. Sup., 585, the court held that a moving picture exhibition was a ``show' within the meaning of a statute prohibiting shows on the first day of the week." See Economopoulos v. Bingham (Sup.), 109 N Y Sup., 728. But our statute does not prohibit the opening or maintaining of a ``show.' It specifically mentions a ``theater,' which, as we have held, means a theatrical performance. While the word ``show' may, and undoubtedly does, include a theatrical performance, the word ``theater' is not sufficiently comprehensive to include all ``shows.'" This case further holds that a moving picture show is not a theater, but in that statute the word "theater" is not followed by the words "and such other amusements." No one contends that a moving picture show is a theater, but a different question is presented when one comes to construe the other words in our statute, and which are not included in the Montana statute, and on the construction to be given these words, "and such other amusements," will determine this case.
Relator also cites us to the case of Bloch v. City of Chicago,
"The purpose of the ordinance is to secure decency and morality in the moving picture business, and that purpose falls within the police power. It is designed as a precautionary measure to prevent exhibitions criminal in their nature and forbidden by the laws. Even the possession of an indecent picture is a crime under section 223 of the Criminal Code (Hurd's Rev. St., 1908, c. 38), and the offender may be confined in the county jail not more than six months or be fined not less than $100 nor more than $1000 for each offense. The ordinance applies to five and ten cent theaters such as the complainants operate, and which, on account of the low price of admission, are frequented and patronized by a large number of children, as well as by those of limited means who do not attend the productions of plays and dramas given in the regular theatres."
Thus it is seen that that court terms moving picture exhibitions "five and ten cent theaters," and it was held that the ordinance not applying to regular theatrical performances, but only to such as exhibited pictures, did not render it discriminatory, and the ordinance was upheld. This case, read as a whole, supports no contention of relator.
The only other case to which we are referred that would seem to have any application whatever, is the case of State v. Cody, 120 S.W. Rep., 267, which was a judgment rendered by the Court of Civil Appeals, for the Austin Judicial District. In that case the State sought to collect from Cody the circus tax, when Cody claimed the exhibition given by him was taxable under subdivisions 24, 25, art. 5049. The court, discussing the evidence at length, holds that the exhibition was not a circus, but was taxable under the other provisions of the statute, and does not pass on the question herein to be decided, whether or not it was an exhibition of a similar species, and is in point on no issue in this case, for there it was only discussed, what is a "circus" and not what is an entertainment of the same species or genus.
We are at loss to know why relator refers us to 8th Words Phrases, 6937-8. On these pages it is discussed what is implied by the word "swear" or "sworn." If he meant to refer us to those pages of that work in which the word "such" is defined, it will be found in volume 7, pp. 6751-2-3-4, and to which we now refer.
This brings us to the fifth or last proposition of relator, and that is whether or not operating a moving picture exhibition on Sunday is prohibited by article 199. All the authorities cited by relator, in their last analysis, but announce the doctrine declared by this court in the Roquemore and Muckenfuss cases, and that is, if not specifically named in the statute, it must be an amusement of the same character, kind or species to be included in the words "such other amusements," and in this case it is specifically held that if the amusement is of the same species of amusement, it is within the terms of the statute and prohibited. Applying the rule thus announced in the Roquemore and Muckenfuss cases to the facts in this case, if the amusement is of the *Page 42 same genus or species as a theater, those cases and the other cases cited by relator, announce the doctrine that would remand relator. In the complaint in this case it is alleged that the moving picture exhibition came within the definition of amusement of the character, kind and species of a theater. Now, what does the word "theater" mean as used in our statute? It does not mean the building, but the performance or exhibition given. Mr. Bouvier, in his law dictionary, gives this definition: "Theater — Although the term has an extended signification and comprehends a variety of performances, yet it is conceived that all which it does legitimately comprehend partakes more or less of the character of the drama." He says: "A music hall is not a theater, but theatrical performances may include minstrel performances." The Am. Eng. Ency. of Law adopts this definition, vol. 28, page 116. And in col. 8, page 6937 of "Words Phrases," a number of cases are cited which also adopt this definition. A theater, as is commonly understood, is an exhibition or performance, with actors and scenery, presenting a play — it may be a farce or tragedy. The performers act a part or parts, and by their manner of presenting the play amuse, instruct and interest those who attend. It is true, they use spoken words, but a great part of the performance is in the acting, in the way the play is presented; the expression of the actors, the movements of their bodies and hands, the way the scene is arranged. A moving picture show can not be said to be a theater as that term is generally understood, because the actors in a moving picture exhibition in the scenes speak no words, but the scenery is there, the acting, the facial expression, and all the paraphernalia used in the theater is shown in the picture. Everything to be seen in the theater in a play is also exhibited upon the canvas in a moving picture exhibition; it is all presented except the spoken words. It is stated in the agreement that the "court may take judicial knowledge of the nature and character of moving picture shows," and while, in all instances we know, these moving picture shows are termed "theaters," yet the fact they are so called, would not make them theaters, yet it but illustrates that in the minds of the exhibitors, and in the minds of the public, it is an exhibition of a similar character and kind, and of the same species. "Faust" is presented in the theater, and is also presented in the moving picture exhibitions; in fact, the moving picture exhibitions of which we have any knowledge are but representations of plays and scenes in real life. The theater is but a presentation of a play. One is the living person acting, while the other is the picture of the living person performing, the same acts. Thousands of persons have gone to see Madame Bernhardt act, who understand not a word of French, and yet all her plays are presented in the French language, hardly a person in attendance understanding a spoken word. And yet she draws magnificent crowds to see the play and the acting. By those who have seen her, it is said to be grand, and while she speaks in a language none understand, yet no one would be so bold as to say *Page 43 the exhibition given by her is not a theatrical performance, and an enjoyable one, too. In moving picture shows every scene in a play is depicted, pictures of actors are there, they are made to frown and smile, gesticulate, give evidence of pleasure or displeasure, and where one has read the play, he can follow the exhibition from beginning to end understandingly, and especially is this true where a person stands by and explains each scene as it is thrown upon the canvas. Every person who has attended the moving picture exhibitions recognizes that the pictures are reproductions of plays, in many instances acted on the stage in regular theaters. We agree with relator, in the main, in the law as presented, except insofar as he would give to the words, "and such other amusements," no meaning, for they can not be said to refer to another theater. The use of the word theater would embrace all character and kinds of a theater, and "other amusements" refer to some kind of amusement, and as said in the Roquemore case, it means other amusements of the same genus. It is a question of fact, not of law, whether a moving picture show is of the same species and of similar character and kind of amusement as a theater, and if it is not of this species of amusement, we do not understand that term. It is but the presentation of plays and scenes from real life; the theater is nothing more or less. The moving picture shows present comedy and tragedy, as do the theaters. It calls forth the same emotions from the patrons as do the theatres, to a greater or less extent. In fact, it is an exhibition of the same character and kind on canvas without spoken words. To hold otherwise, would be for us to nullify and render meaningless the words "and such other amusements," and this we are no more authorized to do than we are authorized to enact laws. The legislative branch of the government write and enact the laws, and the courts are but to construe and enforce them. When the Legislature, by law, provided that "theaters and such other amusements" are prohibited on Sunday, they meant something besides theaters, or they would not have used the additional words, "and such other amusements." In their broadest signification these words would embrace every character of amusement on the Sabbath to which an admission fee is charged, but in the Roquemore case, this court has given to those words a limited meaning, and held that they mean amusements of the same species, and of similar character, and kind, and further we can not go, for to do so, would be for us to nullify a statute. A court is not authorized to ignore entirely words of general import, which follow words of special designation. This court in adopting the rule of ejusdem generis, in construing this statute, did so with the knowledge that the words, "and such other amusements," had a meaning, and in the Roquemore and Muckenfuss cases so declare, and was intended by the Legislature to apply to other amusements of the same species. In adopting such construction, this court had in view the other well known rule of law, that if to apply the rule ejusdem generis, would give to the words no meaning, it would not *Page 44 apply, but the general meaning of the words would be given force and effect and embrace all character of amusements. As is said in Sutherland on Statutory Construction, section 437:
"In cases coming within the reach of the principle of ejusdem generis, general words are read not according to their natural and usual sense, but are restricted to persons and things of the same kind and genus as those just enumerated; they are construed according to the more explicit context. This rule can be used only as an aid in ascertaining the legislative intent, and not for the purpose of controlling the intention or of confining the operation of a statute within narrower limits than was intended by the lawmaker. It affords a mere suggestion to the judicial mind that where it clearly appears that the lawmaker was thinking of a particular class of persons or objects, his words of more general description may not have been intended to embrace any other than those within the class. The suggestion is one of common sense. Other rules of construction are equally potent, especially the primary rule which suggests that the intent of the Legislature is to be found in the ordinary meaning of the words of the statute. The sense in which general words, or any words, are intended to be used, furnishes the rule of interpretation, and this is to be collected from the context; and a narrower or more extended meaning will be given, according as the intention is thus indicated. The doctrine of ejusdem generis yields to the rule that an act should be so construed as to carry out the object sought to be accomplished by it, so far as that object can be collected from the language employed. ``But the doctrine of ejusdem generis,' says the Supreme Court of Minnesota, ``is but a rule of construction to aid in ascertaining the meaning of the Legislature, and does not warrant a court in confining the operation of a statute within narrower limits than intended by the lawmakers. The general object of an act sometimes requires that the final general term shall not be restricted in meaning by its more specific predecessors.' So the restriction of general words to things ejusdem generis must not be carried to such anexcess as to deprive them of all meaning. The enumeration of particular things is sometimes so complete and exhaustive as to leave nothing which can be called ejusdem generis. If the particular words exhaust a whole genus, the general words must refer to some larger genus. ``If the particular words exhaust the genus, there is nothing ejusdem generis left, and in such case we must give the general words a meaning outside of the class indicated by the particular words, or we must say that they are meaningless, and thereby sacrifice the general to preserve the particular words. In that case the rule would defeat its own purpose.' The general words are not to be rejected, and the maxim ejusdem generis must yield to the maxim that every part of a statute should be upheld and given its appropriate effect, if possible."
Thus, if we were to reject the rule announced in the Roquemore and Muckenfuss cases, those general words would of necessity embrace *Page 45 every character of amusement to which an admission fee is charged, and some contend that this is the proper construction, yet as this court has held in those two cases, that these words must be given the narrower meaning, and that they refer alone to amusements of the same species or genus, we are inclined to follow them, and in construing this statute, we have followed the rule laid down in the Roquemore and Muckenfuss cases, and by no rule of law can it be further extended, without entirely rejecting the general words used, and this a court is never authorized to do.
Being of the opinion that a moving picture show of the character and kind presented in this State, comes within the definition of amusements of like character, kind and species as a theater, and while not a theater, yet it is of the same genus, relator is remanded. Our statutes refer to a "horse" and this term has been held to embrace a mare, a mule, a jack, a jenny, as they are all of the same species, and many illustrations might be cited as holding that all things of the same genus are embraced, even when not followed by general words, but we deem it useless.
Relator remanded to custody.
Prendergast, Judge. I concur.
Davidson, Presiding Judge, dissents.