Ex parte Neet

MARSHALL, J. This is a proceeding by habeas corpus, instituted by the petitioner, for the purpose of obtaining his discharge from the custody of the sheriff of Lafayette county and from his imprisonment in- the county jail, where he is held under a warrant of commitment issued' by the criminal court of that county upon a conviction before that court “on a charge of playing base ball on Sunday” — the information simply charging that the petitioner and others therein named “on the 4th day of June, 1899, at the county of Lafayette and State of Missouri, did then and there unlawfully play at a game of ball, commonly called’base ball, on the first day of the week, commonly called Sunday, against the peace and dignity of the State,” etc. — 533 — Among tbe other persons charged in the information with having played the game of base ball with the petitioner, was one R. Vaughn, who was also convicted. He appealed to the Nansas Oity Court of Appeals, and that court dismissed the appeal, on the ground that an appeal would not lie from a conviction upon an information. [State v. Vaughn, 3 Mo. App. Reporter, 268.] Two questions are presented by this case: first, is it unlawful in Missouri to play a game of base ball on Sunday; and, second, is habeas corpus an available remedy to one convicted and imprisoned for so doing? I. Section 2242, Revised Statutes 1899, is relied on as furnishing support for the conviction in this case. That section is 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 deemed guilty of a misdemeanor, and fined not exceeding fifty dollars.” This section (then section 1580, R. S. 1879), was construed by the Kansas City Court of Appeals in the case of State v. Williams, 35 Mo. App. 541, to prohibit playing a game of base ball on Sunday. It was conceded that games of base ball are not within the express prohibition of the statute, and it was likewise conceded that, “where particular words of a statute are followed by general- — as if after the enumeration of classes of persons or things, it is added, ‘and all others/ — the general words are restricted in meaning to -objects of the like kind with those specified.” But it was held that the words, “or games of any kind,” must be construed to embrace games of base ball, because the statute “was evidently .intended to prevent a desecration of the Sabbath, by restraining the — 534 — doing of those things which are offensive to a Christian community, by being done on that day,” and that “the statute was not’aiming to prevent the doing of things immoral per se, or the tendency of which is immoral, as the inhibition is not against gambling or betting on the games, but merely against the doing the act on that day, though it be not immoral or tending to immorality.” At the same (March) term, 1889, the St. Louis Court of Appeals in the case of St. L. Agrl. & Mech. Ass’n v. Delano, 37 Mo. App. l. c. 289, held that section 1580, R. S. 1879 (now sec. 2242, R. S. 1899), only prohibited “games of chance or other games of an immoral tendency, and that it does not involve a prohibition of athletic games or sports, which are not of an immoral tendency, but which tend to the physical development of the youth, and are rather to be encouraged than discouraged.” It was also held that the general words, “or games of any kind,” must be construed to mean games of the same kind as the games specially designated in the statute. It was accordingly held that a contract made by the defendants, as members of the Amateur Athletic Association, with the plaintiff for the use of the fair grounds for the purpose of playing athletic games and sports thereon, on Sunday, was a valid contract. But as the decision was in conflict with the decision of the Kansas City Court of Appeals, in State v. Williams, supra, the case was certified to this court. [St. L. Agrl. & Mech. Ass’n v. Delano, 108 Mo. 221.] This court held that there is no statute in this State which prohibits athletic gantes and sports on Sunday, unless section 3854, R. S. 1889 (formerly sec. 1580, R. S. 1879, and now sec. 2242, R. S. 1899), does so, and after citing that section, said: “But these prohibitions are evidently leveled against sports and games that have a demoralizing tendency, and do not extend to mere athletic sports. Besides, this section is penal, and there — 535 — fore, to be strictly construed. [Howell v. Stewart, 54 Mo. 400; Fusz v. Spaunhorst, 67 Mo. 256.”] And then added: “But, further: In this instance, tbe words, ‘or games of any kind, fall under tbe rule wbicb prescribes that where general words follow particular ones, they are to be construed as applicable to things or persons of a like nature. State v. Bryant, 90 Mo. 534, and cakes cited; St. Louis v. Laughlin, 49 Mo. 559.” The decision of the St. Louis Court of Appeals was approved and affirmed, and while the decision of the Kansas City Court of Appeals in State v. "Williams, supra, was not expressly overruled or disapproved, it was referred to as the basis of the action of the St. Louis Court of Appeals in certifying the case to this court, and therefore the "Williams case must be regarded as overruled. Section 2242, R. S. 1899, has been on the statute books of Missouri, in exactly the same words, ever since 1835: R. S. 1835, Title, Crimes and Punishments, sec. 30, p. 209; R. S. 1845, sec. 33, p. 405; R. S. 1855, sec. 35, p. 631; R. S. 1865, sec. 34, p. 819; R. S. 1879, sec. 1580; R. S. 1889, see. 3854. Playing a game of base ball on Sunday (or on any other day) could not have been in the minds of the lawmakers when this provision of law was enacted in 1835, for the very simple reason that such a game was wholly unknown to art at that time. 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 laws and the judiciary to enforce but not create the laws — not even — 536 — by construction. Base ball does not belong to the same class, kind, species or genus as horse racing, cock-fighting, or card playing. It is to America what cricket is to England. It is a sport or athletic exercise, and is commonly called a game, but it is not a gambling game nor productive of immorality. In a qualified sense it is affected by chance, but it is primarily and properly a game of science, of physical skill, of trained endurance and of natural adaptability to athletic skill. It is a game of chance only to the same extent that chance or luck may enter into anything man may do. But when chance or luck is pitted against skill and science, it is as fair an illustration of what will result as any test that could be applied. If the view of the Williams case had been adopted, this statute would have been elastic enough to cover every game that ever was or ever will be invented, no matter whether it was harmless, promotive of physical or mental development or deleterious to both. "It would prevent games of chess, backgammon, jacks, authors, proverbs, faro, lceno and poker alike, and when played on Sunday any one would have been as illegal as any other. Such a construction would have curtailed many of the pleasures of many of our people, without elevating them or improving their moral tone. Until the lawmakers expressly provide for such sweeping changes in the lives and customs and habits of our people, it is not proper for the courts by construction to impair their natural.rights to enjoy those sports or amusements that are neither mala in se nor mala prolvibita — neither immoral nor hurtful to body or soul. We therefore conclude that there is no law in this State which prevents playing a game of base ball on Sunday, and therefore the defendant is imprisoned for the doing of an act which is not unlawful, and therefore the imprisonment is wrongful. — 537 — II. . The only remaining question is, whether habeas corpus is a proper remedy. The rule must now be regarded as settled in this State that if a person is imprisoned for an act which is not in contravention of any existing law, or if the act under which he is held is unconstitutional, habeas corpus is a proper remedy to restore to him his freedom of which he has been improperly and illegally deprived. [Ex parte Slater, 72 Mo. 102; Ex parte Arnold, 128 Mo. 256; Ex parte O’Brien, 127 Mo. 477; Ex parte Craig, 130 Mo. 590; Ex parte Smith, 135 Mo. 223.] The underhung reason is that an unconstitutional act is no law at all, and that no court has a right to imprison a citizen who has violated no law of the State, but that such act, even if done by a court under the guise and form of law, is as subversive of the right of the citizen as if it was done' by a person not clothed with authority, and hence it is the duty of this court, under section 3 of article 6 of the Constitution, to discharge him by means of a writ of habeas corpus. This, too, irrespective of any other relief which may be available to him. Eor it is the very purpose of this writ to restore freedom to those who have been deprived of it without warrant or authority of law. Of course it will be understood that habeas corpus will not be allowed to perform the functions of a writ of error or an appeal, but will only lie where the imprisonment is absolutely without authority of law or for an offense which has not been made an offense against the law, or where the act under which he is imprisoned is unconstitutional, and therefore it is no law at all. This is the plain meaning of sections 5375 and 5378, Eevised Statutes 1889. Eor these reasons the petitioner is discharged from cus — 538 — tody as prayed. All concur, as to 1st paragraph, and Gantt, G. J., Sherwood and Burgess, JJ., concur, also, as to 2d paragraph; Robinson, Brace and Yalliant, JJ., dissent as to-2d paragraph.