O'Neil v. Providence Amusement Co.

Citation108 A. 887
Decision Date29 January 1920
Docket NumberNo. 493.,493.
PartiesO'NEIL, Deputy Chief of Police, v. PROVIDENCE AMUSEMENT CO.
CourtUnited States State Supreme Court of Rhode Island

Rathbun and Sweetland, JJ., dissenting.

Proceeding by William F. O'Neil, Deputy Chief of Police, against the Providence Amusement Company. Defendant was found guilty, sentence was stayed, and constitutional questions raised by motion to dismiss complaint are certified for determination under Gen. Laws 1909, c. 298, § 1. Constitutional questions answered, and case sent back.

Elmer S. Chace, Henry C. Cram, and Ellis L. Yatman, all of Providence, for complainant.

Alexander L. Churchill, Philip C. Joslin, and John E. Bolan, all of Providence, for defendant.

VINCENT, J. This case comes before us upon the constitutionality of section 5 of chapter 131 of the General Laws of 1909, as amended by chapter 1780 of the Public Laws of 1919, approved April 24, 1919. The act is entitled, "Of diminishing danger to life in case of fire." The portion of the act which we are called upon to examine in the consideration of the questions presented to us is as follows:

"The board of fire commissioners, or in case there is no such board, the chief of the fire department of every city shall station in every theater during the time any audience is present therein a fireman, and the person or persons holding the license for the same shall pay such city for the attendance of such fireman the sum of two dollars, except in the city of Newport, where such person or persons holding the license shall pay such city for the attendance of such fireman the sum of three dollars, for every day during which any performance, show or exhibition shall be given therein: Provided, however, that in the city of Providence in lieu thereof the person or persons holding the license pertaining to such theater shall employ at a salary of not less than three dollars per day a suitable person, approved by the board of fire commissioners thereof, who shall be stationed in such theater during the time any audience is present therein, and who shall perform such duties as from time to time may be prescribed by said board to guard against fire, and to protect life and property in case of fire therein, and who shall not have any other duties and in case said board at any time shall withdraw its approval of any such person, another person approved by said board shall be employed in his stead; and no such employs approved as aforesaid shall be discharged by such licensee or licensees from his said employment nor his salary reduced except with the prior approval of said board; and said board from time to time may prescribe a distinctive uniform and badge to be worn by every such employs during the time he is performing such duties; and said board from time to time may assign any officers or members of the fire department thereof to inspect such theaters and see whether such persons are properly performing their said duties therein, and such officers or members at all reasonable times upon showing their credentials shall be admitted free of charge into all parts of all theaters in said city; and provided further, that in the cities of Woonsocket and Central Falls in lieu thereof the person or persons holding the license pertaining to such theaters shall employ a suitable person approved by the chief of the fire department thereof, who shall be stationed in such theater during the time any audience is present therein, and who shall perform such duties as from time to time may be prescribed by said chief of the fire department to guard against fire, and to protect life and property in case of fire therein, and in case said chief of the fire department at any time shall withdraw his approval of any such person, another person approved by said chief of the fire department shall be employed in his stead; and no such employe approved as aforesaid shall be discharged by such licensee or licensees from his said employment except with the prior approval of said chief; and said chief from time to time may prescribe a distinctive uniform and badge to be worn by every such employs during the time he is performing such duties; and said chief from time to time may assign any officers or members of the fire department thereof to inspect such theaters and see whether such persons are properly performing their said duties therein, and such officers or members at all reasonable times upon showing their credentials shall be admitted free of charge into all parts of all theaters in said cities."

A complaint issued by the district court of the Sixth judicial district charged the defendant, holding a theatrical license in the city of Providence, with failure to pay three dollars a day pursuant to said section 5 to one Robert S. Gallagher employed by said defendant to guard against danger from fire in its theatre located in said city. The defendant pleaded not guilty.

At the hearing in the district court, it appeared that the defendant had not paid the sum of $3 a day to the said Gallagher; that he had been employed for some two years, and still was employed, at $2 a day; that he was approved as competent for such employment by the board of fire commissioners of the city of Providence; and that such approval was in force at the date of the complaint. The defendant offered testimony as to the character of the contract of hiring, the seating capacity of the theater in question, and the seating capacity of the theaters in the various cities of the state, and then filed its motion to dismiss the complaint and to discharge the defendant on the ground that said act was unconstitutional. The defendant was found guilty, sentence was stayed, and the constitutional questions raised by the motion to dismiss were certified to this court for determination.

The act in question appeared originally as chapter 131 of the General Laws of 1909 and by section 5 of the said original act it was provided as follows:

"Sec. 5. The board of fire commissioners, or, in case there is no such board, the chief of the fire department, of every city shall cause to be installed and maintained in every theater therein a fire alarm box, and shall station in every theater, during the time any audience is present therein, a fireman, and the person or persons holding the license for the same, shall pay such city for the attendance of such fireman the sum of two dollars for every day during which any performance, show, or exhibition shall be given therein. The board of police commissioners, or in case there is no such board, the chief of police of every city shall cause to be installed and maintained in every theater therein a police call box."

Before noting the changes in this section brought about by the later amendatory acts, it may be well to bear in mind that the original act provided that a member of the fire department of each city in the state should be stationed by the fire commissioners or chief of the fire department in every theater and that each theater in which a fireman was so stationed should pay to the city the sum of $2 per day for his attendance. At the January session of the General Assembly, 1916, section 5 was amended by chapter 1366 of the Public Paws in respect to the theaters in Providence; the amendment providing that the licensee of the theater should employ a suitable person, to be approved by the board of fire commissioners, who should perforin the duties which had previously devolved upon the fireman stationed therein, and that such person so employed could not be discharged by his employer without the consent of such board.

At the January session of the General Assembly, 1919, the act was again amended by chapter 1718 of the Public Laws in respect to the theaters in the city of Newport, the amendment providing that the theaters in that city should pay the sum of $3 per day for the services of the fireman stationed therein. Later, at the same session, the act was further amended by chapter 1780 of the Public Laws. It is upon the act as finally amended that the questions now submitted to us arise. Under the provisions of the act as it now stands, in the cities of Newport, Pawtucket, and Cranston firemen must be stationed in theaters by the respective municipal authorities for which services the city of Newport is required to pay $3 per day, and the cities of Pawtucket and Cranston $2 per day. In the cities of Providence, Central Falls, and Woonsocket a person approved by the board of fire commissioners, or other municipal authority, must be employed by the person holding a theatrical license to guard against danger by fire, and cannot be discharged by his employer without the consent of the proper municipal authority. In the city of Providence such employe must be paid not less than $3 a day while in Woonsocket and Central Falls, no compulsory payment of any amount whatsoever is made necessary, and further, in Providence, the salary of such person cannot be reduced without the previous approval of the board of fire commissioners, while no such provision is in force as regards Woonsocket and Central Falls.

The defendant claims that section 5 of chapter 131, General Laws 1909, as thus amended, is unconstitutional, and raises the following questions:

(1) Does the provision compelling the holder of a theatrical license in the city of Providence to pay $3 a day to a person employed by him and stationed in the theater to guard against fire deprive the defendant of liberty and property without due process of law?

(2) Does such provision deny the defendant the equal protection of the law?

(3) Does the provision that the salary of the person employed to guard against fire shall not be reduced, except by consent of the board of fire commissioners, deprive the defendant of its liberty and property without due process of law?

(4) Does such provision deny the defendant the equal protection of the law?

(5) Does the provision that such employe cannot be discharged without...

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    ...of Hartford v. Parsons, 87 Conn. 412, 87 A. 736, Ann.Cas.1916A, 1182 (Sup.Ct. of Err.1913) (theaters and opera houses); Cf. O'Neil v. Providence Amusement Co., supra. Many jurisdictions have gone even further and permitted municipalities to exact fees from private businesses for the provisi......
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    ...for the protection of persons accused of crime. City of Providence v. Stephens, 47 R. 1.387,133 A. 614; O'Neil v. Providence Amusement Co., 42 R. I. 479, 108 A. 887, 8 A. L. R. 1590; Joslin Mfg. Co. v. Clarke, 41 R. I. 350, 103 A. 935; East Shore Land Co. v. Peckham, 33 R. I. 541, 82 A. 487......
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