Power v. Nordstrom

• Decision Date: 04 November 1921
• Docket Number: No. 22375.,22375.
• Citation: 150 Minn. 228,184 N.W. 967
• Parties: POWER v. NORDSTROM et al.
• Court: Minnesota Supreme Court

150 Minn. 228

184 N.W. 967

POWER

v.NORDSTROM et al.

No. 22375.

Supreme Court of Minnesota.

Nov. 4, 1921.

Appeal from District Court, Chisago County; J. N. Searles, Judge.

Action by Charles Power against August Nordstrom and others to restrain the enforcement of a city ordinance. From an order overruling a demurrer to the complaint, the defendants appeal. Reversed.

Hallam, J., dissenting.

Syllabus by the Court

Though a lawful business, the exhibition of motion pictures may be licensed and regulated by the state and the political subdivisions thereof in the exercise of the police power.

In the exercise of the discretion delegated to village councils by sections 1268, 1269, Gen. St. 1913, they may ordain that there shall be no public exhibitions of motion pictures within the village on Sundays.

Such an ordinance is not aimed to secure the observance of the Sabbath day, but to regulate a business, and is not in conflict with the general law or public policy of the state. Alfred P. Stolberg, of Center City, for appellants.

Moore, Oppenheimer & Peterson, of St. Paul, for respondent.

LEES, C.

The village of North Branch was incorporated under the provisions of chapter 9, R. L. 1905. It has less than 1,000 inhabitants.

Section 727, R. L. 1905, now section 1268, G. S. 1913, grants power to village councils to adopt such ordinances as they deem expedient for certain enumerated purposes. Among such purposes is preventing or licensing and regulating the exhibition of circuses, theatrical performances, or shows of any kind. Section 1269, G. S. 1913, contains a similar grant of power coupled with a proviso authorizing village councils to refuse to grant a license ‘where in their opinion, the public interests of the citizens of the village require it.’

In October, 1920, the village council of North Branch adopted an ordinance entitled ‘An ordinance to regulate and license peddlers, hawkers, auctioneers, transient merchants, amusements and shows.’ It required one following such an occupation or engaged in such a business within the village to take out a license and pay a specified license fee. Section 9 of the ordinance reads:

‘The exhibition or attempt to exhibit in said village of any moving picture show, show, circus, menagerie, vaudeville or theatrical entertainment for the amusement of the public on Sunday is prohibited and forbidden.’

Plaintiff applied for and was granted a license to operate a motion picture theater and paid the required license fee. The village officers threatened to arrest and prosecute him under the ordinance if he exhibited motion pictures on Sunday, and he has accordingly desisted thereby sustaining a financial loss. He is the owner of a modern and well-equipped theater where he exhibits motion pictures in an orderly manner to respectable audiences. The pictures are of moral character, and tickets are sold only in the vestibule of the theater without any calling out or announcement of the exhibition or of their sale.

Setting out these facts in his complaint plaintiff brought this action to restrain the village officers from enforcing section 9 of the ordinance on the ground that it is illegal and void. The defendants demurred on the ground that the complaint failed to state a cause of action, the demurrer was overruled, the court certifying that the question presented was doubtful, and defendants appealed from the order.

No question is or could be raised about the meaning of the word ‘shows' as used in the statute. Clearly enough it is sufficiently broad to include exhibitions of moving pictures. 38 Cyc. 258. It must be conceded that the motion picture business is a lawful business. Nevertheless it is a business which is subject to regulation by the state by virtue of its police power and by the political subdivisions of the state to which the power has been delegated by the Legislature. 2 Dillon, Mun. Corp. 664; 38 Cyc. 255, 258; Mut. Film Corp. v. Ohio Indust. Com., 236 U. S. 230, 244, 35 Sup. Ct. 387, 59 L. Ed. 552, Ann. Cas. 1916C, 296;Greenberg v. West. Ass'n, 148 Cal. 126, 82 Pac. 684,113 Am. St. Rep. 216; note to Zucarro v. State, L. R. A. 1918B, 361.

This court has twice declared that places of public anusement such as theaters and motion picture houses are proper subjects for police regulation and control. State v. Scaffer, 95 Minn. 311, 104 N. W. 139;Higgins v. La Croix, 119 Minn. 145, 137 N. W. 417,41 L. R. A. (N. S.) 737. The reasons leading to that conclusion are convincingly stated in the latter case and need not be repeated.

Possibly the power to license and regulate shows includes the power to prohibit them. State v. Redinton, 119 Minn. 402, 138 N. W. 430. But, assuming it does not, can it be said that to forbid the carrying on of the business at specified times as on Sundays or between certain hours of the day, is beyond the power of a municipal corporation? Under a grant of police power to license and regulate a business the municipal authorities have power to determine where and within what limits the business may be conducted. In re Wilson, 32 Minn. 145, 19 N. W. 723. They may impose reasonable restrictions as to the time, place, and manner of conducting the business. State v. Barge, 82 Minn. 256, 84 N. W. 911,53 L. R. A. 428. They may prohibit exhibitions of motion pictures in portions of a city in which for reasons of public welfare it is undesirable to have them. State v. Redinton, supra. An ordinance enacted under a grant of power to license billiard and pool halls may impose any reasonable conditions or terms to make the license efficacious as a police regulation. The licensee may be required to keep an orderly house, or to keep it closed on certain days and during certain hours at night. State v. Pamperin, 42 Minn. 320, 44 N. W. 251. That was a case where the ordinance required billiard and pool halls to be kept closed on Sundays and after certain hours at night. Generally speaking, a city, under its authorized police power, may regulate any business the unrestrained pursuit of which might affect injuriously the public health, morals, safety, or comfort. City of St. Paul v. Kessler, 146 Minn. 124, 178 N. W. 171. And in respect to theatrical exhibitions and amusements of a similar character a larger discretion is recognized than in the case of ordinary trades because they are liable to degenerate into nuisances and also because they require more police surveillance. City of Duluth v. Marsh, 71 Minn. 248, 73 N. W. 962. It is our opinion that in the exercise of such discretion pursuant to the powers granted by sections 1268 and 1269, G. S. 1913, a village may ordain that motion picture exhibitions shall not be given on Sundays, unless such a provision in an ordinance is inconsistent with the Constitution or general laws of the state or is unreasonable. The Legislature in the exercise of police power may prohibit all manner of labor and business on Sundays except works of necessity of charity, and may delegate authority to municipal corporations to enact ordinances with like prohibitions. State v. Ludwig, 21 Minn. 202. Sunday laws are generally sustained on the theory that there should be one day of rest in each week to promote the moral and physical well-being of society, and hence the enactment of such laws falls within the scope of the police power of the state. State v. Petit, 74 Minn. 376, 77 N. W. 225;State v. Justus, 91 Minn. 447, 98 N. W. 325,64 L. R. A. 510, 103 Am. St. Rep. 521,1 Ann. Cas. 91;State v. Weiss, 97 Minn. 125, 105 N. W. 1127,7 Ann. Cas. 932;State v. Dean, 184 N. W. 275. But it is urged that an ordinance requiring motion picture houses to close on Sundays is inconsistent with the general laws of the state. Section 8753, G. S. 1913, as construed in State v. Chamberlain, 112 Minn. 52, 127 N. W. 444,30 L. R. A. (N. S.) 335,21 Ann. Cas. 679, and followed in Houck v. Ingles, 126 Minn. 257, 148 N. W. 100.

[3] Counsel for respondent say that, stripped of all camouflage, the ordinance is simply and solely Sunday legislation in direct conflict with and an attempt to override the general statutes and the well-settled public policy of the state. We do not regard it as legislation of that character. It is not the aim...