Newport Amusement Co. v. Maher

• Decision Date: 20 December 1960
• Docket Number: No. 2881,2881
• Citation: 92 R.I. 51,166 A.2d 216
• Parties: NEWPORT AMUSEMENT COMPANY, Inc., et al. v. James L. MAHER et al. Equity
• Court: Rhode Island Supreme Court

Page 216

166 A.2d 216

92 R.I. 51

NEWPORT AMUSEMENT COMPANY, Inc., et al. v. James L. MAHER et al.

Equity No. 2881.

Supreme Court of Rhode Island.

Dec. 20, 1960.

John C. Burke, Paul J. DelNero, Newport, for petitioners.

John F. Phelan, City Sol., Newport, for respondents.

CONDON, Chief Justice.

This is a petition for a declaratory judgment under the Uniform Declaratory Judgments Act, General Laws 1956, chapter 9-30. After a trial on the merits of the petition a justice of the superior court entered a final decree denying it. From such decree the petitioners have appealed to this court. Being in doubt as to the proper procedure under the act for obtaining a review here they have also duly prosecuted a bill of exceptions. That doubt arises from the indefiniteness of § 9-30-7 which provides for review as follows: 'All orders, judgments and decrees under this chapter may be reviewed as other orders, judgments and decrees.' Such provision manifestly fails to take into account marked differences in our appellate procedures in actions at law and suits in equity.

Since this proceeding for a declaratory judgment is neither an action at law nor a suit in equity but a novel statutory proceeding, the general assembly would have been well advised if it had expressly provided therein a definite mode of procedure for review rather than leaving it to conjecture whether in a given case review should be by appeal as in equity or by bill of exceptions as at law. However, we think petitioners' difficulty here may be reasonably resolved. Since the petition prays for preventive relief by injunction which is obtainable only in equity and since the cause has been concluded below by entry of a final decree as in equity rather than a judgment as at law, we are of the opinion that in such circumstances review by appeal is the more appropriate remedy. The bill of exceptions is therefore dismissed pro forma.

The controversy between the parties arose as the result of the enactment on December 23, 1959 of Ordinance No. 301, chapter 132, by the city council of the city of Newport. The pertinent portions of section 132-1, 'Definition Of Terms,' read as follows:

'(a) the term 'juke box' shall mean any music vending machine, contrivance or device which, upon the insertion of a coin, slug, token, plate, disc, or key into any slot, crevice, or other opening, or by the payment of any price, operates or may be operated, for the omission [sic] of songs, music or similar amusement;

'(b) the term 'mechanical amusement device' shall mean any machine, which, upon the insertion of a coin, slug, token, plate or disc, may be operated by the public generally for use as a game, entertainment or amusement, whether or not registering a score. It shall include such devices as marble machine, pinball machines, skill ball, mechanical grab machines, mechanical pool tables and all games, operations, or transactions, similar thereto under whatever name they may be described.'

Section 132-2, 'License Required,' reads as follows:

'No person shall have, or keep, in any store, shop, tavern, restaurant, or any other place of business within the City of Newport, any Juke box or mechanical amusement device as herein defined by 132-1 unless the owner thereof shall have obtained a license therefore [sic] from the City of Newport upon payment of a license fee as hereinafter provided. Application for such license shall be made to the Council upon a form approved by the Council to be supplied by the City Clerk.'

On December 26, 1959 petitioners, who are the owners of many coin-operated amusement devices and juke boxes located in Newport, filed the instant petition in which they prayed that the ordinance be declared null and void either in its entirety or in so far as it imposed a license fee and prohibited use of the machines by minors under the age of eighteen years. They also prayed therein that respondents be enjoined from preventing the use of the juke boxes and amusement devices by petitioners and from bringing any charges against them under the provisions of said ordinance.

In the superior court petitioners contended that the ordinance was an unlawful exercise of the taxing power reserved to the state. They also contended that the ordinance if viewed as a regulation in exercise of the police power was equally invalid because the legislature had preempted that particular field by the enactment of G.L.1956, § 5-2-10. And in any event, they argued, the fee of $25 for each machine was so unreasonable as to render the ordinance invalid.

The trial justice did not directly pass upon the first two contentions but held that the city having adopted a home rule charter pursuant to article XXVIII of amendments to the state constitution had plenary power thereunder to enact the ordinance. And he found on the evidence before him that the fee of $25 was reasonable. Neither party raised the home rule point below but on the appeal in this court both of them have briefed and argued it in connection with the points upon which petitioners rely.

In support of their claim that the trial justice erred in denying their petition, petitioners filed ten reasons of appeal but in their brief they have compressed them into three points. Under the first point they make this contention: 'The ordinance is void because the City of Newport, even under its home rule charter, does not have authority to license juke boxes and mechanical amusement devices; the ordinance does not pertain strictly to municipal matters, but is of state wide concern.'

There is merit in that contention and we therefore hold that the trial justice erred in resting his decision on the home rule amendment. That amendment does not take away from the legislature its exclusive power over licensing and vest it in municipalities which adopt home rule charters. The power to regulate occupations and businesses by licensing provisions and by imposing a licensing fee is an attribute of sovereignty. It is not an incident of municipal administration and may not be exercised by municipalities except where it is lawfully delegated to them in particular instances expressly or by necessary implication. State v....