Carrier v. Lynch

Henderson, J., delivered the opinion of the Court. This appeal is from a decree of the Circuit Court for Worcester County, in equity, dismissing a bill for a declaratory judgment in a case seeking a construction of the Sunday law, Code (1951), Art. 27, sec. 605, in relation to an “open-air, drive-in movie”. The defendants named ³⁵¹ in the suit were the Sheriff and the State’s Attorney. The complainants were the proprietors of an enterprise known as “Shore Drive-in Movie”.

The bill alleged that on May 13, 1955, a warrant was issued for the arrest of the appellants, charging them with a violation of the Sunday law, and they were threatened with successive arrests and progressive fines if they continued to show pictures on Sundays. The bill alleged that the Sunday law was inapplicable, and that any delay in determining the question would result in irreparable injury. In their answer the appellees admitted that there was an actual controversy between the parties. They raised no objection to the decision of the question on bill for declaratory judgment, instead of in the criminal proceeding.

The Attorney General raises no objection here. Cf. Atkinson v. Sapperstein, 191 Md. 301 , and Borchard, Declaratory Judgments (2d ed.), p. 1023. The case was heard below upon a stipulation of facts, and the trial court held that Section 605 was applicable.

Code (1951), Art. 27, sec. 605, was enacted in its present form by Ch. 71, Acts of 1874. It repealed and reenacted with slight modifications provisions enacted by Ch. 66, Acts of 1866. It provides: “It shall not be lawful to keep open or use any dancing saloon, opera house, tenpin alley, barber saloon or ball alley within this State on the Sabbath day, commonly called Sunday; * * The State contends that the words “opera house” are broad enough to cover the operation in question here. It is conceded that motion pictures were first shown in the year 1896.

They were wholly unknown at the time the statute was adopted, but this would not prevent the statute from being applicable, if the showing of movies is fairly within the statutory classification and the purpose for which the prohibition was set up. Cf. State v. Cleveland, 93 N. E. 467 (Ohio), and Richards v. State, 143 N. E. 714 (Ohio). The only Maryland case dealing with the words “opera house” is Callan v. State, 156 Md. 459 (1929).

There the operator of a moving picture parlor was convicted by a jury of violating Section 605. ³⁵² It was held that the indictment charging the traverser with keeping open and using an opera house was not demurrable, it being for the jury to say whether the offense had been committed. We think the phrase “opera house” as used in the statute is a generic term, and refers, somewhat grandiloquently, to any structure devoted to or used for theatrical performances. Ford’s Opera House in Baltimore is one example of the usage; that theatre was not chiefly devoted to “grand opera”. As pointed out by the Supreme Court of Missouri in St. Louis Amusement Co. v. St. Louis County, 147 S. W. 2d 667, 669 (Mo.), the opera house for the Paris Grand Opera was completed in 1874. “In magnificence and costliness it was ‘easily the first theatre of