It has been said that one who causes two blades of grass to grow where only one grew before is a human benefactor; but such a tribute would hardly be deserved by a decision that multiplied penal prosecutions for violation of a single statute.

I disagree with the decision of the majority on the reversal of the judgments, and the practical importance of the question on which the reversal is rested, justifies a statement of the reasons why I think the judgments should be affirmed.

The appellant ran its theaters in flagrant violation of the statute. It was indicted for three offenses, the several indictments disclosing that eleven persons were employed on one, nine upon another, and seven upon a third occasion. No defense was interposed on the merits, but the appellant insisted that it was prejudiced by the procedure. Its position is that the commonwealth should cause twenty-seven indictments to be returned against it, instead of one indictment for each place of business operated by it on Sunday in violation of the law. I think that position untenable, and but for the solemn conclusion of a majority of the judges, I would feel justified in characterizing the contention more vigorously.

The statute is short and simple. It says:

"If any person on the Sabbath day shall himself be found at his own, or at any other trade or calling, or shall employ his apprentices, or other person, in labor or other business, whether the same be for profit or amusement, unless such as is permitted above, he shall be fined not less than two nor more than fifty dollars for each offense. Every person or apprentice so employed shall be deemed a separate offense." Ky. Stats., sec. 1321.

According to my view of the statute, the offense consists in conducting the prohibited business upon the Sabbath Day. It does not consist in the employment of the persons who operate it. That is a mere incident of the business — a means of carrying it on. It may be true that the policy back of the law is to subserve the good of the workers by providing a compulsory day of rest, but the method of the law is to forbid the business itself. McAfee v. Com., 173 Ky. 83, 190 S.W. 671, *Page 61 L.R.A. 1917C, 377. In that case the indictment charged one offense, the proof showed two persons engaged in the forbidden work, and a fine of $100 was affirmed.

There is abundant authority to the effect that where the offense consists in exercising one's ordinary calling or business there can be but one offense for one and the same day. Westfall v. State, 4 Ga. App. 834, 62 S.E. 558; Crepps v. Durden, Cowp. 640, 98 Eng. Rep. 1283; In re Snow,120 U.S. 274, 7 S. Ct. 556, 30 L. Ed. 658; Muckenfuss v. State,55 Tex. Cr. R. 229, 116 S.W. 51, 20 L.R.A. (N.S.) 783, 131 Am. St. Rep. 813, 16 Ann. Cas. 768; Friedeborn v. Com., 113 Pa. 242,6 A. 160, 57 Am. Rep. 464; State v. James, 81 S.C. 197,62 S.C. 214, 18 L.R.A. (N.S.) 617, 128 Am. St. Rep. 902, 16 Ann. Cas. 277.

But it is said these cases are distinguished by the provision peculiar to the Kentucky statute that "every person or apprentice so employed shall be deemed a separate offense." My construction of that provision is that it refers solely to the punishment to be inflicted. It graduates the penalty according to the extent of the violation measured by the number of persons engaged therein. The minimum punishment for the offense is multiplied by the number of persons engaged in conducting the business. Louisville N. R. Co. v. Com., 102 Ky. 300,43 S.W. 458, 19 Ky. Law Rep. 1462, 53 L.R.A. 149. When the statute says that each person so employed shall be deemed a separate offense, it is not the equivalent of saying that each person employed in the business shall constitute a distinct offense. When a thing is to be "deemed" something that it really is not, it means merely that it is to be so treated, with the attendant consequences, but it is not necessarily that something else. 60 L. J. Q. B. 380, quoted by Bouv. Law Dict., vol. 1, p. 814, in defining "Deem."

To me the intention of the statute is very plain. It was designed to punish the violation of the Sabbath by inflicting upon the wrongdoer a penalty of not less than $2 or more than $50 for each person employed by him in conducting the prohibited business. And such heretofore has been the settled construction of the statute. 37 Cyc. 576; Com. v. C. O. Ry. Co., 128 Ky. 542, 108 S.W. 851, 852, 32 Ky. Law Rep. 1400; Capital Theater Co. v. Com., 178 Ky. 780, 199 S.W. 1076; Com. v. Bowling Green Athletic Ass'n, 207 Ky. 170, 268 S.W. 1088. *Page 62

It has been clearly and expressly decided that the offense of each person is single for each Sabbath and the punishment graduated by the number of persons employed. The commonwealth "has one cause of action against appellee for as many of the penalties as she is able to show servants or employees, were caused to work and labor on the Christian Sabbath." Com. v. C. O. Ry. Co., supra. It is vainly sought to differentiate these cases upon the ground that in each of them the prosecution was by a penal action whilst the present cases proceeded upon an indictment. But that distinction is unsound. The rule respecting duplicity in indictments prevails in penal actions. Louisville N. R. Co. v. Com., 102 Ky. 300, 43 S.W. 458, 19 Ky. Law Rep. 1462, 53 L.R.A. 149; Allison v. Com., 135 Ky. 693, 123 S.W. 267.

The statements in the present opinion respecting joinder of causes of actions to recover penalties for separate offenses are in direct conflict with the decisions in the cases just cited. The provisions of the Civil Code concerning the joinder of civil actions are inapplicable to penal actions, as a simple reading of the sections cited will demonstrate. They relate to actions upon contracts, actions concerning real property and personal property, injuries to character, and injuries to person and property. Civil Code of Practice, sec. 83. They have no possible reference to penal actions. Louisville N. R. Co. v. Com., 102 Ky. 300, 43 S.W. 458, 19 Ky. Law Rep. 1462, 153 L.R.A. 149. The provisions of section 113, subsection 2, Civil Code of Practice, permit the plaintiff to set up as many causes of action as he may have, but it does not permit the joinder of actions not authorized by section 83 of the Civil Code of Practice. Although this law is almost as old as the state and has been before the courts many times, this is the first time that the construction now advanced and advocated has been adopted.

It is unfortunate that the court should now depart from the rule long followed, and take a distinctly backward step. The multiplication of prosecutions tends to congest the business of the courts, leads to delay, and operates to defeat justice. It promotes no good policy. I do not contend that the safeguards provided by law for the security of the rights of accused individuals should be relaxed because of the urgent need for speeding up the administration of justice. But I most earnestly protest against the multiplication of unnecessary technicalities that tend to hamstring prosecutions and *Page 63 to hamper the punishment of those admittedly guilty of a bold defiance of the law.

I am authorized to state that Judges THOMAS and BRATCHER concur in this opinion.