Commonwealth v. Mcgann

• Decision Date: 02 January 1913
• Citation: 100 N.E. 355,213 Mass. 213
• Parties: COMMONWEALTH v. McGANN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

213 Mass. 213

100 N.E. 355

COMMONWEALTH v. McGANN et al.

Supreme Judicial Court of Massachusetts, Middlesex.

January 2, 1913

Jan. 2 1913.

COUNSEL

John J. Higgins, Dist. Atty., and Nelson P. Brown, Second Asst Dist. Atty., both of Boston, for the Commonwealth.

P. H. Kelley, of Boston, for defendants.

OPINION

LORING J.

1. The effect of St. 1904, c. 450, was to require in towns and in cities other than Boston two licenses for a theatrical entertainment. One to be issued by the chief of the district police had to do with the safety of the public who attended the performance. The other, to be issued under R. L. c. 102, § 172, by the selectmen or the mayor and aldermen (later under St. 1905, c. 341, by the mayor alone), had to do with the morals of the public who attended. Before the enactment of that act (St. 1904, c. 450), one license covering both aspects was to be issued by the mayor and aldermen or by the selectmen. The provision of St. 1904, c. 450, § 15, is that only 'so much of section one hundred and seventy-two of chapter one hundred and two of the Revised Laws and of any other act as is inconsistent herewith is * * * repealed.' The above is so plainly the true intent and effect of St. 1904, c. 450, that it is not necessary to state the act in detail. And without stating them in detail the subsequent acts (St. 1904, c. 460, § 4; St. 1905, c. 341; St. 1906, c. 105; St. 1907, c. 274; St. 1908, c. 385, § 2) recognize this. Requiring two licenses for the same act is not without precedent. See Com. v. Ellis, 158 Mass. 555, 33 N.E. 651. The defendants put great reliance on the case of Taxing District v. Emerson, 4 Lea (72 Tenn.) 312. In that case it was decided that under a statute requiring the owner of a theater to pay a tax for the privilege of giving theatrical entertainments it was not necessary for persons employed by the owner for that purpose to pay a second tax. That does not help the defendants.

2. There can be no question of the constitutionality of the R. L. c. 102, § 172, so construed. Some theatrical performances are beneficial and some are injurious to public morals. It is within the limits of the police power to forbid the latter and to secure the former by requiring all theaters to be licensed by public officials who are authorized to revoke and suspend the license 'at their pleasure,' as is provided in R. L. c. 102, § 172. 'At their pleasure' in that act means from time to time in the exercise of a wise discretion having in view the purposes sought by the act, namely, to prevent theatrical performances which are contra bonos mores. So construed, the act is not open to the objection stated in Commonwealth v. Maletsky, 203 Mass. 241, 246, 89 N.E. 245, 24 L. R. A. (N. S.) 1168.

The defendant has contended, on the authority of Daily v. Superior Court, 112 Cal. 94, 44 P. 458, 32 L. R. A. 273, 53 Am. St. Rep. 160, that R. L. c. 102, § 172, is in violation of the rights guaranteed by the sixteenth article of the Declaration of Rights, which provides that 'the liberty of the press is essential to the security of freedom in a state; it ought not, therefore, to be restrained in this commonwealth.' What was decided in Daily v. Superior Court was that under the Constitution of California it was not competent for a court to forbid a theatrical performance even if it would result in preventing the trial of a criminal then pending in its court from being a fair and impartial one. The provision of the Constitution of California there in question was in these words: 'Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain the liberty of speech or of the press.' The reason for the result reached by a majority of the court in that case was that by the terms of that constitutional provision freedom of speech, including a theatrical performance, could be punished but could not be prevented. It is not necessary for us to decide whether we should agree with the conclusion reached by the majority in that case, for article 16 of our Declaration of Rights is confined to 'liberty of the press.'

The defendants have further contended that if a business is so offensive that it should be prohibited it must be prohibited as to all or as to none, and that the decision in Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220, is a decision to that effect. If the defendants' contention is correct, a business which is an innocent one and even a public benefit on the one hand or a public evil on the other according to the way in which it is conducted, cannot be regulated by requiring a license for carrying it on. The power of government under our Constitution is not so crippled. Of that there could be no doubt were the question res integra. In addition the practice of more than a hundred years and the decisions of this court are conclusive here against the contention. See for example Com. v. Davis, 140 Mass. 485, 4 N.E. 577; Com. v. Plaisted, 148 Mass. 375, 19 N.E. 224, 2 L. R. A. 142, 12 Am. St. Rep. 566; Quincy v. Kennard, 151 Mass. 563, 24 N.E. 860; Com. v. Page, 155 Mass. 227, 29 N.E. 512; Com. v. Parks, 155 Mass. 532, 30 N.E. 174; Com. v. Abrahams, 156 Mass. 57, 30 N.E. 79; Com. v. Ellis, 158 Mass. 555, 33 N.E. 651; Com. v. Davis, 162 Mass. 510, 39 N.E. 113, 26 L. R. A. 712, 44 Am. St. Rep. 389; Com. v. Maletsky, 203 Mass. 241, 247, 89 N.E. 245, 24 L. R. A. (N. S.) 1168. There is nothing in Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220,...