The opinion
Dissenting Opinion:
Myers, C. J.
I am unable to concur in the majority opinion in this case.
The amended §467 together with the amendment to §468 (Acts 1909 p. 436) specifically singles out the game of baseball from football and other games, and exempts the former from the general interdiction. This is in *265 direct contravention of article 1, §23, of the Constitution, with respect to the equal rights and privileges of the players of every other kind of game, where a fee is charged, in allowing baseball to be played and a fee to be charged. This proposition is fully sustained by the following authorities: Indianapolis Traction, etc., Co. v. Kinney (1909), 171 Ind. 612 , 23 L. R. A. (N. S.) 711; Bedford Quarries Co. v. Bough (1907), 168 Ind. 671 , 14 L. R. A. (N. S.) 418; Town of Longview v. City of Crawfordsville (1905), 164 Ind. 117 , 68 L. R. A. 622; Sellers v. Hayes (1904), 163 Ind. 422 ; School City of Rushville v. Hayes (1904), 162 Ind. 193 ; Dixon v. Poe (1902), 159 Ind. 492 , 60 L. R. A. 308, 95 Am. St. 309; Henderson v. London, etc., Ins. Co. (1893), 135 Ind. 23 , 20 L. R. A. 827, 41 Am. St. 410; Graffty v. City of Rushville (1886), 107 Ind. 502 , 57 Am. Rep. 128 ; Connolly v. Union Sewer Pipe Co. (1902), 184 U. S. 540 , 22 Sup. Ct. 431, 46 L. Ed. 679 ; Cotting v. Kansas City Stock-Yards Co. (1901), 183 U. S. 79 , 22 Sup. Ct. 30, 46 L. Ed. 92 ; Brown v. Russell (1896), 166 Mass. 14 , 43 N. E. 1005 , 32 L. R. A. 253, 55 Am. St. 357; Noel v. People (1900), 187 Ill. 587 , 58 N. E. 616 , 52 L. R. A. 287, 79 Am. St. 238; Ruhstrat v. People (1900), 185 Ill. 133 , 57 N. E. 41 , 49 L. R. A. 181, 76 Am. St. 30; City of Carrollton v. Bazzette (1896), 159 Ill. 284 , 42 N. E. 837 , 31 L. R. A. 522; State v. Garbroski (1900), 111 Iowa 498 , 82 N. W. 959 , 56 L. R. A. 570, 82 Am. St. 524; People v. Havnor (1896), 149 N. Y. 195 , 43 N. E. 541 , 31 L. R. A. 689, 52 Am. St. 707; In re Keymer (1896), 148 N. Y. 219 , 42 N. E. 667 , 35 L. R. A. 447; People v. Gillson (1888), 109 N. Y. 389 , 17 N. E. 343 , 4 Am. St. 465; Ex parte Newman (1858), 9 Cal. 502 ; Murray v. Board, etc. (1900), 81 Minn. 359 , 84 N. W. 103 , 51 L. R. A. 828, 83 Am. St. 379; State, ex rel, v. Wagener (1897), 69 Minn. 206 , 72 N. W. 67 , 38 L. R. A. 677, 65 Am. St. 565; Johnson v. St. Paul, etc., R. Co. (1890), 43 Minn. 222 , 45 N. W. 156 , 8 L. R. A. 419; State v. Gardner (1898), 58 Ohio St. 599 , 51 N. E. 136 , 41 L. R. A. 689, 65 Am. St. 785; Sutton v. State (1896), 96 Tenn. 696 , 36 S. W. *266 697 , 33 L. R. A. 589; Sayre Borough v. Phillips (1892), 148 Pa. St. 482, 24 Atl. 76 , 33 Am. St. 842, 16 L. R. A. 49; State, ex rel., v. Ashbrook (1900), 154 Mo. 375 , 55 S. W. 627 , 77 Am. St. 765, 48 L. R. A. 265; Waters-Pierce Oil Co. v. City of Hot Springs (1908), 85 Ark. 509 , 109 S. W. 293 , 16 L. R. A. (N. S.) 1035; Milton v. Bangor R., etc., Co. (1907), 103 Me. 218 , 68 Atl. 826 , 15 L. R. A. (N. S.) 203, 125 Am. St. 293; State v. Schmuck (1900), 77 Ohio St. 438 , 83 N. E. 797 , 14 L. R. A. (N. S.) 1128, 122 Am. St. 527; State v. Holland (1908), 37 Mont. 393 , 96 Pac. 719 ; In re Van Horne (1908), 74 N. J. Eq. 600, 70 Atl. 986 .
For the same reason it is a special law, in violation of article 4, §22, of the Constitution prohibiting the enactment of local or special laws for the punishment of crimes or misdemeanors.
If is tantamount to saying that it shall be unlawful, not upon religious grounds, but upon grounds of health and recreation, for any person to play any game except baseball, on the forbidden day.
If there could be any ground of distinction between, or classification of, baseball players, as distinct from players of other games, we would be bound to yield to the legislative discretion. If it could be said that it is allowable because it provides recreation for the worn and tired persons, who cannot yield any other day from their work, to witness a game in the daytime, the same thing is true as to football, basketball, polo, cricket, or any other outdoor game, but they are interdicted and excluded from the privilege, and the sightseer, and those who are seeking recreation, are excluded from other games, and a distinction is made as to both, so that those persons who are within the related or same class — that is, all persons desiring to engage in other games as well as those who may desire to witness them— are denied the privilege where a fee is charged.
I am unable to perceive that there can possibly be any basis for such distinction or ground upon which the classifi *267 cation can rest. There is just as much inequality produced by singling out baseball players and permitting them to play for compensation, while all other games for pay are prohibited, as there was in singling out barbers and punishing them. Armstrong v. State (1908), 170 Ind. 188 , 15 L. R. A. (N. S.) 648.
The classification is openly and frankly made, as is shown by the repealing clause of the second section, leaving no doubt as to the purpose intended. A classification in which all within the class, or naturally related to it, are not embraced, cannot be justified. Indianapolis Traction, etc., Co. v. Kinney, supra; Bedford Quarries Co. v. Bough, supra; Town of Longview v. City of Crawfordsville, supra; Dixon v. Poe, supra.
It is also invalid as a local law, in violation of article 4, §22, of the Constitution. The last clause of the act permits the game to be played “ not less than one thousand feet distant from any established house of worship or permanent church structure used for religious services, or any public hospital or private hospital erected prior to the passage of this act.” The clause specifically interdicts playing within one thousand feet of established houses of worship, or permanent church structures, or public or private hospitals, “ erected prior to the passage of this act.” (Our italics.) By its terms, therefore, the game may be played within any distance of such structures erected after the passage of the act, and thus it would be unlawful to play within one thousand feet of these structures if erected prior to the passage of the act, but lawful to play within any distance of those erected later, by reason of which conditions the law would necessarily be local and in violation of said section twenty-two. These provisions of the Constitution were adopted by the people as restraints upon legislative power, and a correct construction should be courageously adopted by the courts to effectuate the intent of the people as expressed in the organic law, for by erroneous interpretations of its provisions, and by erroneous applications of the doctrine of classification, *268 its provisions may be gradually abrogated, and the Constitution nullified.
No doubtful case should give rise to annulment of a statute as the deliberate act of a coordinate and independent branch of government, but, by attempted classification, and by laws of only local application, to which there is the most natural tendency, and by extension by construction, in deference to class interest and special cases, the organic law may practically be nullified, until we are in danger of having all the train of evils resulting from local or special legislation, and inequalities of rights, which it was a leading purpose of the Constitution of 1851 to prevent.
Monks, J., concurs in this opinion.