¶1concurring.
¶2I concur in the result reached in the opinion of Mr. Justice Gregory that the prosecution should be dismissed. But I think the dismissal should be placed on the ground that the defendant was engaged in a “work of necessity” within the meaning of the statute.
¶3As the quotation in the opinion of Mr. Justice Gregory points out, the word “necessity” is “elastic and relative, and must be construed with reference to the conditions under which we live”. Our ideas of what is a “necessity” have undergone a change. We now recognize as necessities things which were regarded as luxuries or were even unknown when the statute was passed.
¶4Due to the complexity of our present day civilization and the strain under which we now live and work, relaxation and recreation are just as much necessities as food and drink. The mind and body cannot be kept in condition without food. Neither can they be kept fit without relaxation and recreation.
¶5When this statute was passed, in 1779, recreation was free and readily accessible to all. This is no longer the case. Nowadays recreation must be largely purchased from those who are engaged in the business of furnishing it. Consequently,, we have those who operate bathing beaches, swimming pools, golf courses and baseball parks, where recreation is furnished for a price both on weekdays and on Sundays. In a similar manner and for a like purpose, the Federal, State and municipal governments operate recreational parks through their respective employees. Except during the present emergency, service stations throughout the country are kept open on Sun*751days in order that those who are so disposed may purchase gasoline and enjoy an outing in their automobiles, relax and “re-create” themselves for the coming week. All of these things are permitted because we recognize that those furnishing the means of recreation are engaged in a “work of necessity.”
¶6The same is true of moving pictures. Everywhere they are regarded as an orderly and innocent means of recreation and amusement. Indeed, the State recognizes this and provides for their censorship and regulation.
¶7To deny to many people the opportunity of attending moving pictures on Sundays is to exclude them from their chosen form of recreation altogether, for that is the only day on which they are free from their work. Moreover, that is the day set aside both by law and custom for rest and recreation.
¶8This situation is not confined to the cities alone. With the coming of automobiles and good roads, many of those living in the country obtain relaxation, recreation and amusement by patronizing places where these things are furnished for a price. Therefore, furnishing the means of recreation has come to be a “work of necessity” throughout the State.
¶9Since the plaintiff in error was engaged in a “work of necessity” permitted by the statute, it follows that the prosecution should be dismissed.
¶10Holt and Spratley, JJ., concur in this opinion.