State v. Herald

Root, J.

Respondent was informed against by the prosecuting attorney of Pierce county by an information charging him with having violated Bal. Code, § 7250 (Pierce’s Code, § 1886), which reads as follows:

“Any person who shall keep open any play house or theater, race ground, cock pit, or play at any game of chance for gain, or engage in any noisy amusements, or keep open any drinking or billiard saloon, or sell or dispose of any intoxicating liquors as a beverage, on the first day of the week, commonly called Sunday, shall, upon conviction thereof, be punished by a fine not less than thirty dollars nor more than two hundred and fifty dollars. All fines collected for violation of this section shall be paid into the common school fund.”

A demurrer was interposed to the information, and sustained by the trial court, upon the ground that the statute was unconstitutional as being in conflict with art. 1, § 12, of the state constitution, and § 1 of the fourteenth amendment to the Federal constitution.

It is urged by respondent that this statute prevents the opening of a theater building for any purpose whatever on Sunday; that the opening of such theater building for church, Sunday school, ordinary lecture, memorial service, or other legitimate, quiet, and proper service, would be invalid as much as if opened for the purposes of giving a theatrical play or dramatic performance; that the attempt to prevent such a building from being opened for such religious or other orderly and quiet exercises is an infringement of the rights of the individual, and is consequently in contravention of the constitutional guaranties above referred to.

The question depends upon the construction to be given the statute. If it be given a narrow, technical construction, respondent’s position may be upheld. But if it be given, what we regard as a reasonable and common-sense interpretation, to wit, that a theater building or playhouse should not be opened for theatrical plays or dramatic performances upon Sunday, then it is not open to the objections urged. We think it is perfectly apparent that the legislature intended by this statute to prevent the opening of theaters and play houses on Sunday for the giving of such plays and performances, and that it had no intention of forbidding them to be opened for religious or other quiet, legitimate, and orderly exercises.

The judgment of the honorable superior court is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

Fullerton, Budkin, Mount, and Dunbar, JJ., concur.

Hadley, C. J. and Crow, J., took no part.