is forcefully illustrated in the case of Stockley v. Cissna, 56 C. C. A. 324, 119 Fed. 812, and approved by this court in the same styled case in 119 Tenn. 135, 104 S. W. 792.

The facts of the Stockley Case, briefly, are these: By an avulsion in 1876, the Mississippi river left its bed, on the Tennessee side, and flowed through a new channel. A few years later this old bed became dry land. In 1901, Stockley, by virtue of chapter 20 of the Acts of 1847-48, entered and obtained a grant to a part of this old bed, which was the property of the state of Tennessee when the Act of 1847 was passed. The Act of 1847 provided that after September 1, 1849, any person might enter any of the vacant and unappropriated lands in the state. This particular land had belonged to the state all these years, and was vacant and unappropriated at the time Stockley made his entry, but the court held that Stockley acquired no title; that the land was not subject to entry and grant under the Act of 1847, although the property of the state, for the reason that this land was covered by the water of the river at the time the act was passed, and that this land was not in the mind of the legislature at the time said act was enacted.

Judge Lurton, speaking for the court, said:

"The situation is one which could not have been reasonably contemplated by the lawmaker, when providing for the ordinary vacant lands belonging to the public domain. The lands in question were not, at the date of the Act of 1847 within the meaning and purview of the makers of the law, because it was the policy and purpose of the state [Goodwin v. Thompson, 15 Lea, 209, 54 Am. Rep. 410] to reserve for the public use the beds of such navigable rivers.

"Not having been within the meaning of the Tennessee acts which provided for the disposition of the unoccupied and ungranted land of the state at the time these acts

were passed, the locus in quo had not been brought within the terms of these acts by the subsequent extraordinary physical change which has occurred. The dry river bed is public property, held by the state for public purposes, but some further legislation by the state is necessary before such a property will become open to private ownership."

And so, in the case we are considering, further legislation is necessary in order to deal with a state of affairs that did not exist at the time of the passage of the Act of 1803.

When Stockley obtained his grant in 1901, the Act of 1847 was still in force. If this latter act did not apply to the land entered by Stockley, because not within the contemplation of the legislature, neither did the Act of 1803 apply to baseball, because baseball was not in the mind of the legislature when the act was passed.

In the state of Missouri there was a statute relating to work and labor and the playing of games on Sunday, under which a man was indicted for playing baseball on Sunday, and the court said: "Section 2242, Revised Statutes 1899, has been on the statute books of Missouri, in exactly the same words, ever since 1835. Playing a

game of baseball on Sunday 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." Ex parte Neet, 157 Mo. 527, 80 Am. St. Rep. 638, 57 S. W. 1025.

Kansas passed a statute in 1855 forbidding the playing "of games of any kind" on Sunday. The supreme court held that the statute did not apply to baseball, and, referring to the Missouri holding, said: "The same reason applies with almost as much force to our statute, adopted in 1855." 79 Kan. 513, 21 131 Am. St. Rep.

State v. Prather, L.R.A. (N.S.) 23,. 339, 100 Pac. 57.

Statutepopular

construction

effect.

seem to have understood that it had no application to baseball, and in 1885 an act was passed by the legislature making Sunday ball playing a misdemeanor, which act was declared unconstitutional by this court. Both before and since that time attempts have been made to have the legislature enact such a law, but without avail, which is a recognition of the fact that the Act of 1803 does not prohibit the playing of baseball on Sunday.

It is the duty of this court to interpret and enforce laws, and not to make them, that being the province of the legislature, and, if the legislature thinks that the playing of baseball on Sunday is injurious to the morals or welfare of the public, they can make Sunday ball playing prohibitive.

The second section of chapter 47 of the Acts of 1803, Shannon's Code, § 3031, is as follows: "Any person who shall hunt, fish, or play at any game of sport, or be drunk on Sunday, as aforesaid, shall be subject to the same proceedings, and liable to the same penalties, as those who work on the Sabbath."

The court of civil appeals did not rest its decision on this section of the act, and the state has not raised this question by writ of certiorari. However, what we have said as to the other section applies as well to this one. "Play any game of sp

did not include baseball, because it was unknown at the time, and was not within the contemplation of the legislature.

The games of sport common in those days were horse racing, cockfighting, and gambling with cards, and most of the statutes, passed 100 years ago, specifically mentioned these three things. This provision of the statute evidently was not intended to apply to every little innocent game. Although, on the statute book for 116 years, we have never heard of any insistence being made that the statute prohibited such games as marbles, checkers, tennis, croquet, golf, proverbs, Bible games, and many other innocent games that could be enumerated. From the only authorities that we have been able to find, it appears that similar statutes have always been construed as applying to wagering or gambling games. Strange to say that this provision of the act, although a very ancient one, has never been construed by this court, at least in a published opinion.

It is insisted, however, that this court took a contrary view in the case of Graham v. State, 134 Tenn. 285, 183 S. W. 983. In that case it seems to have been taken for granted that the statute applied, and the only question raised was one of jurisdiction, it being insisted that under the statute, justices of the peace had exclusive jurisdiction, and the question which has been raised, and which we have been con sidering in this case, was not invoked in that case. However, that case can be distinguished from this one. The gravamen of the offense in the Graham Case was operating a theater on Sunday where moving pictures were shown. If it had been vaudeville, or a musical comedy, instead of exhibiting pictures, the result would have been the same. Showing moving pictures is not the gravamen of the offense, otherwise many of our leading ministers would be violating the law when

letic games in the public parks of Baltimore city on Sunday: "Resolved, that such athletic games as are permitted to be played in the public parks of Baltimore city on week days, shall be permitted to be played on Sundays between the hours of 2 and 7 P. M."

On the 1st of June, 1918, Joshua Levering, John T. Stone, and Reverend William W. Davis, constitut-. ing a committee of the Lord's Day Alliance, a body corporate, and as individuals and taxpayers of Baltimore city, together with several other taxpayers of Baltimore city, filed a petition in the superior court of Baltimore city against George Weems Williams, George Washington Williams, J. Cookman Boyd, and Edward Hanlon, constituting the board of park commissioners of commissioners of Baltimore city, alleging, among other things, that said ordinance and resolution are illegal and void because they contravene the "general laws of the state of Maryland relating to the observance of the Lord's day, commonly called Sunday, as a day of rest and worship," as codified in article 27, §§ 436-438, of Bagby's Code of Public General Laws of Maryland, and praying for a writ of mandamus "directed to" the said board of park commissioners, and each of the members thereof, "preventing and restraining them and it from giving effect to, permitting, or directing the carrying out, execution, or effectuation of said alleged Ordinance No. 353 aforesaid, and said resolution, order, and regulation in said parks of Baltimore city upon or during the Sabbath day or Lord's day, commonly called Sunday, at any time hereafter, and preventing and restraining them from permitting, authorizing, or directing the holding, carrying on, or taking place of any of the said games, sports, and athletic contests and exercises, aforesaid, in said parks on the Sabbath day or the Lord's day, commonly called Sunday, at any time hereafter, and commanding and requiring them fully and in all re

spects to observe, abide by, and give effect to the said §§ 436-438 of article 27 of the Annotated Code of Maryland of 1914 edited by George T. Bagby, Esq., in said parks upon said Sabbath day or Lord's day, hereafter, without regard to the provisions of said alleged ordinance No. 353, or any of the provisions thereof, and ordering such other and further relief as may be proper in the premises."

The defendants answered the petition, admitting the passage of said ordinance and resolution, and alleging that the ordinance and resolution are valid, and that the games and privileges thereby permitted "will not in any manner interfere with the proper observance of Sunday as a day of rest and worship."

The petitioners demurred to the answer, and this appeal is from the order of the court below overruling the demurrer, and from the judgment in favor of the defendants.

There is no provision in the charter expressly authorizing the mayor and city council of Baltimore to pass the ordinance in question, but § 6 of the charter (Act of 1898, chap. 123) declares that the mayor and city council of Baltimore shall "have and exercise within the limits of the city of Baltimore all the power commonly known as the police power to the same extent as the state has or could exercise said power within said limits." In the case of Rossberg v. State, 111 Md. 394, 134 Am. St. Rep. 626, 74 Atl. 581, Judge Pearce, speaking for this court, after referring to the broad and comprehensive police powers conferred upon the city, and dealing with the contention of the appellant that the ordinance in question in that case was invalid because it was inconsistent with the law of the state, said: "But all the text-writers already cited herein unite in declaring that further and additional penalties may be imposed by ordinance, without creating inconsistency. The true doc