Bijou Amusement Co. v. Toupin

• Decision Date: 14 December 1939
• Docket Number: No. 730.,730.
• Citation: Bijou Amusement Co. v. Toupin, 62 R.I. 503, 9 A.2d 852 (R.I. 1939)
• Parties: BIJOU AMUSEMENT CO. et al. v. TOUPIN et al.
• Court: Rhode Island Supreme Court

9 A.2d 852

BIJOU AMUSEMENT CO. et al.

v. TOUPIN et al.

No. 730.

Supreme Court of Rhode Island.

Dec. 14, 1939.

Certiorari proceeding by Bijou Amusement Company and others against Felix A. Toupin and others to review the action of the board of police commissioners of the City of Woonsocket in establishing a license fee for theater performances in Woonsocket.

Writ of certiorari quashed.

John R. Higgins and Edward F. Dwyer, both of Woonsocket, for petitioners.

John J. Mee, City Solicitor, of Woonsocket, for respondents.

CAPOTOSTO, Justice.

This is a petition for a writ of certiorari brought by the petitioners, operators of motion picture theatres in the city of Woonsocket, to review the action of the board of police commissioners of that city in establishing a license fee for theatre performances in Woonsocket.The writ was issued.In response to the writ, the respondents, the members of the board of police commissioners, hereinafter called the board, and the city treasurer, have made a return of the proceedings in issue and the records in question are now before us.

The petition alleges substantially that previous to January 12, 1939, the required license fee from each operator of a motion picture theatre in Woonsocket was $1 for each performance on week days and $1 for a performance on Sundays; that, on said date, the board voted that such license fees in the future should be $2 for each performance from Monday to Friday inclusive, and $5 for performances on Saturdays and Sundays.The petition then alleges that this action by the board is a clear abuse of the discretion vested in it by General Laws 1938, chapter 362, § 2, in that "the license fee is greatly in excess of the cost of licensing and regulating the theatres, including the necessary expenses attendant upon the issuance of a theatre license and the necessary inspection, regulation and supervision."The petition further alleges that the action of the board in charging such fees constitutes "an arbitrary, confiscatory, prohibitive and unauthorized tax upon private enterprise for the purpose of raising revenue", which purpose is not contemplated by said chap. 362.

The prayer of the petition is that the record in question be quashed; that this court set an amount "which is a reasonable sum for the payment of a theatre amusement license;" that the board be held to account for the overcharges, and that the city treasurer be ordered to pay over to the petitioners the sum determined to have been illegally assessed.

General Laws 1938, chap. 362, entitled "Licensing And Regulation Of Shows And Exhibitions", sets forth the conditions and regulations under which various kinds of amusement enterprises, such as theatrical performances, dances or balls, boxing, wrestling matches and roller skating, may be held in the cities and towns of this state.The statute in so far as pertinent is as follows: "§ 1.No person shall publicly or for pay or for any profit or advantage to himself, exhibit or promote or take part in any theatrical performance, * * * or other show or performance * * *" without first securing a license for such performance, under penalty, as provided in § 4, of a fine not exceeding $500 or imprisonment not exceeding one year, or both such fine and imprisonment.

By § 2 of this enabling statute, the licensing power, which the legislature saw fit to grant to its municipalities, is vested in the town councils of towns and in the board of police commissioners of cities.It provides, among other things, that: "Said town council* * * or board of police commissioners shall demand and receive of every person to whom a license shall be granted under this chapter such sum not exceeding $100.00 for any single performance * * * ."(italics ours)In its entirety, § 5 is as follows: "All sums received for licenses as aforesaid shall be paid, one-half thereof to the town treasurer for the use of the town and one-half thereof to the general treasurer for the use of the state."

According to the records in the instant case, the board, on January 12, 1939, voted that: "Theatre License fees are to be $4. per day from Monday to Friday inclusive, and $5 for Saturdays, and $5 for Sunday.* * * To take effect January 15, 1939."On January 26, 1939, the board voted "for the purpose of clarification" that "the fees to be paid by Theatres, is stipulated as follows: $2 for each performance which is not a so-called continuous performance, and $5. for a so-called continuous performance such as is now conducted on Saturdays and Sundays, said continuous performance to require a fee of $5. no matter on what day they are held.All...