Marine Corps League v. Benoit

• Decision Date: 06 February 1951
• Citation: 96 N.H. 423,78 A.2d 513
• Parties: MARINE CORPS LEAGUE et al. v. BENOIT, Mayor, et al.
• Court: New Hampshire Supreme Court

Page 513

78 A.2d 513

96 N.H. 423

MARINE CORPS LEAGUE et al. v. BENOIT, Mayor, et al.

Supreme Court of New Hampshire.

Feb. 6, 1951.

Sheehan, Phinney & Bass, Samuel A. Margolis and William L. Phinney, all of Manchester, for plaintiffs.

J. Francis Roche, City Sol., Manchester, for defendants.

JOHNSTON, Chief Justice.

The purpose of the ordinance is shown by its section 3. It is to the effect that any centralized music reproducing system and any coin-operated music reproducing instrument or coin box that is maintained in any business establishment or building in the City of Manchester shall be so regulated that there shall be no reproduction of recordings of a lewd or indecent nature.

The defendants readily admit that the city has no power to levy the stated license fees as taxes. They disclaim any intention of justifying the ordinance as one for revenue purposes and defend it solely as a police measure.

Under the police power, a municipality may be granted authority to regulate mechanical and automatic musical instruments including centralized systems and coin-operated contrivances. 'In any event, municipal competency in this respect may be predicated on, or is a phase of, municipal police power to provide for the public morals and welfare. Theatrical, operatic and musical performances and motion-picture shows have always been recognized as proper subjects of police inspection and control, and in comparison with them the necessity for supervision and regulation of music and songs furnished by juke boxes commercially operated is, at best, merely a question of degree.' 7 McQuillin, Municipal Corporations (3d Ed.) 40. In Adams v. City of New Kensington, 357 Pa. 557, 55 A.2d 392 an ordinance providing a license fee for music boxes, juke boxes and vending machines was upheld under the police power as derived by grant from the Commonwealth. The Court, 357 Pa. on page 565, 55 A.2d on page 396, said: 'It would appear to be entirely in order for a municipality to make sure, by periodic inspections, that they do not become a public nuisance * * * because of their playing vulgar or obscene records.' See also, Lamere v. City of Chicago, 391 Ill. 552, 63 N.E.2d 863, and Zinn v. City of Steelville, 351 Mo. 413, 173 S.W.2d 398.

Under R.L. c. 66, § 13, subd. XIII, city councils are given the power, 'To restrain * * * all kinds of immoral and obscene conduct.' Accordingly, the Board of Mayor and Aldermen of the City of Manchester had the granted authority from the Legislature to pass the present ordinance if it is constitutional and otherwise valid.

The plaintiffs argue that the fees imposed exceed any reasonable administrative expense, so that it should be concluded that the ordinance is an unlawful effort to tax and therefore void. What may be permitted with respect to license fees is stated in Re Opinion of the Justices, 88 N.H. 497, 499, 190 A. 713, 715, as follows: 'The license fees established by section 8 do not exceed the probable expense of issuing the licenses and of inspecting and regulating the business licensed.' State v. Angelo, 71 N.H. 224, 229, 51 A. 905, is cited. See also, State v. Cox, 91 N.H. 137, 144, 16 A.2d 508.

An ordinance should not be declared invalid unless its illegality clearly appears. New London v. Davis, 73 N.H. 72, 77, 59 A. 369; Vermont Salvage Corp. v. Village of St. Johnsbury, 113 Vt. 341, 347, 34 A.2d 188. The annual fees required are ten dollars for a juke box so-called, one hundred dollars for a centralized reproducing musical system and one dollar for each coin box outlet of the latter. There is no evidence and we cannot conclude from judicial notice that these fees are in excess of the cost of issuing the licenses and of subsequent supervision and inspection of the systems and instruments designated. The right and duty to supervise and inspect are implied as means of enforcing the ordinance although not expressed in it. 'Juke boxes and similar music machines placed in taverns, restaurants, dine-and-dance establishments and other places of public resort, are subject to police supervision and licensing. Juke box licenses may be conditioned on their operation by persons of good character in reputable places. The licensing of juke boxes and the amount of the fee or tax must, or course, be reasonable. The amount of the fee or tax may be limited to an amount equivalent to the cost of police regulation and supervision of the instruments, but, where authorized, it may be in amount sufficient to raise revenue.' 9 Mc Quillin, Municipal Corporations, 363. In State v. Cox, supra, fees ranging from three hundred dollars to a nominal amount for single parades on public streets were up-held as reasonable. In Lamere v. City of Chicago, supra, an ordinance was declared void because of an unreasonable fee but the amount was fifty dollars annually for juke boxes and other instruments in contrast to the sum of ten dollars required by the Manchester ordinance.

The requirement with regard to reasonable fees is stated in Opinion of the Justices, 94 N.H. 501, 504, 51 A.2d 836, 838, as follows: "The power to regulate the use of the streets is a delegation of the police power of the state government, and whatever reasonably tends to make regulation effective is a proper exercise of that power. It justifies the charge of a fee and the imposition of the penalty, and the regulative measure is not invalidated because, incidentally, the city's receipts of moneys are increased. The distinction between the taxing power and the police power will be found in the purpose for which the particular power is exercised.' City of Buffalo v. Stevenson, supra, 207 N.Y. , 263, 100 N.E. , 800. If the fees charged approximate the cost of purchase, maintenance and policing such meters, a slight excess or deficiency in reference to actual cost of meters and their operation will not under any view of the law affect the validity of the act or ordinance by which they are established.'

It is claimed that the ordinance is unconstitutional because it is arbitrary and discriminatory with respect to persons it assumes to regulate. The New Hampshire Bill of Rights is cited in support of this contention. 'Classification to be valid must reasonably promote some proper object of public welfare or interest and may not be sustained when the selection and grouping is so arbitrary as to serve no useful purpose of a public nature.' In re Opinion of the Justices, 85 N.H. 562, 564, 154 A. 217, 221. See also, State v. Pennoyer, 65 N.H. 113, 18 A. 878, 5 L.R.A. 709; Woolf v. Fuller, 87 N.H. 64, 72, 73, 174 A. 193, 94 A.L.R. 1067; Welch Company v. State, 89 N.H. 428, 431, 432, 199 A. 886, 120 A.L.R. 282.

The inequalities complained of are the exemption of coin-operated radios and the difference in the fees required. In Miller v. City of Memphis, 181 Tenn. 15, 178 S.W.2d 382, 151 A.L.R. 1172, which involved and ordinance prohibiting juke boxes because of their noise, the Supreme Court of Tennessee held that there was no arbitrary classification because radios were not regulated in the same manner. 'The mere fact that there is no ordinance regulating radios has no bearing upon the question before us.' 181 Tenn. at page 23, 178 S.W.2d at page 385. So, with respect to the exclusion of phonographs from a classification of music boxes, juke boxes and vending machines, it was said in Adams v. City of New Kensington, supra, 357 Pa. on page 565, 55 A.2d on page 396: 'It is urged that this ordinance involves an illegal differentiation between musical machines operated by the insertion therein of a coin and phonographs not so operated. It is true that a statute ordinance may not discriminate between persons engaged in the same trade or pursuit: * * * but it is not invalid merely because it does not prohibit other acts which may be as equally mischievous as the acts prohibited'.

In the absence of evidence concerning the number of coin-operated radios in Manchester, their exclusion from the operation of the ordinance cannot be considered arbitrary classification. The fact of their fewness or of federal control of radio programs may be an adequate reason for not including them in the...