State v. Loomis
| Citation | 242 P. 344,75 Mont. 88 |
| Decision Date | 16 December 1925 |
| Docket Number | 5847. |
| Parties | STATE v. LOOMIS. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; J. J. Lynch, Judge.
Ernest Loomis was found guilty of keeping open a dance hall on Sunday, and he appeals. Affirmed.
Walker & Walker and C. S. Wagner, all of Butte, for appellant.
L. A Foot, Atty. Gen., and I. W. Choate, Asst. Atty. Gen., for the State.
The defendant was found guilty of keeping open a dance hall on Sunday, and has appealed from the judgment and from an order denying his motion for a new trial.
The cause was submitted upon an agreed statement of facts, from which it appears that from 9 p. m. until midnight of Sunday October 18, 1925, the defendant kept open a dance hall located on the second floor of a building at 102 South Montana street in the business district of the city of Butte and conducted a public dance therein.
Prior to 1915 there was in force in this state a statute (Rev. Codes 1907, § 8369) which provided:
"Every person who on Sunday, or the first day of the week, keeps open or maintains or aids in opening or maintaining any theater, playhouse, dance house, race track, gambling house, concert saloon or variety hall is guilty of a misdemeanor."
The Fourteenth Legislative Assembly (Acts 1915, c. 92) amended the act and in the amended form it is now section 11039, Revised Codes of 1921, and reads as follows:
"Every person who on Sunday, or the first day of the week, keeps open or maintains, or who aids in opening or maintaining any dance hall, dance house, race track, gambling house or pool room, variety hall, or any other place of amusement where any intoxicating liquors are sold or dispensed, is guilty of a misdemeanor; provided, however, that the provisions of this section shall not apply to such dancing halls or pavilions as are maintained or conducted in public parks or playgrounds where no admission is charged, and where good order is maintained, and where no intoxicating liquors are sold."
The history of the legislation in this jurisdiction will be found in the opinion in Re Klune, 74 Mont. ---, 240 P. 286. It will be observed that one effect of the amendment was to relieve theaters and playhouses from the restriction theretofore imposed upon them, while dance houses and dance halls were continued under the ban of the law; and it is the contention of the defendant that in making this discrimination the amended act denies to him the equal protection of the law.
It is conceded, as it must be, that it is competent for the lawmakers to classify subjects of legislation and to deal differently with the different classes created, if the classification is reasonable and not a mere artificial arrangement or subterfuge to avoid the inhibition of the Fourteenth Amendment to the federal Constitution. Whether the classification made by the amended act is reasonable was a matter for legislative determination in the first instance ( Hilger v. Moore, 56 Mont. 146, 182 P. 477), and every reasonable presumption will be indulged in favor of the validity of the act; in other words, it will be presumed that the classification is reasonable, and the defendant must assume the burden of showing that there is not any admissible hypothesis upon which it can be justified (Quong Wing v. Kirkendall, 39 Mont. 64, 101 P. 250).
We enter upon our investigation with this principle in mind:
It is not necessary that classification depend Insurance Co. v. Daggs, 172 U.S. 557, 562, 19 S.Ct. 281, 282 (43 L.Ed. 552); Hill v. Rae, 52 Mont. 378, 158 P. 826, L. R. A. 1917A, 495, Ann. Cas. 1917E, 210.
The mere fact that the act discriminates between theaters and playhouses, on the one hand, and dance houses and dance halls, on the other, will not condemn it. Discrimination is the very essence of classification and is not objectionable unless founded on distinctions which the courts are compelled to pronounce unreasonable or purely fictitious. Quong Wing v. Kirkendall, 223 U.S. 59, 62, 32 S.Ct. 192, 56 L.Ed. 350.
Emphasis is laid upon the fact that, from 1871 to 1915, theaters, playhouses, and dance houses were included in one class of subjects under police regulation, and it is urged that the statute in force during that period was a legislative declaration that those subjects were so closely akin in their nature and effect that it was necessary that they be grouped in one class. This much may be conceded, but it does not follow that a different classification might not be made in 1915. The Fourteenth Legislative Assembly was not bound by the classification made by any of its predecessors. It may be assumed that the surrounding circumstances in 1871 justified fully the association of theaters and playhouse with dance houses; but if, in fact, the character of entertainments given in theaters and playhouses on Sundays in 1871, or the manner in which those places were conducted, had changed to such extent that the evil sought to be remedied in the first instance had disappeared altogether, or had been mitigated in 1915, whereas no such change had occurred in the manner in which dance houses or dance halls were conducted, this would justify the reclassification, and the existence of facts sufficient to warrant the change will be presumed. Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S.Ct. 337, 55 L.Ed. 369, Ann. Cas. 1912C, 160.
It is always competent for the Legislature to recognize different degrees of the possible evil tendencies inherent in different forms of amusement or entertainment, and to give effect thereto in classifying the subjects for the purpose of appropriate regulation, without being open to the charge that the act is arbitrary or unwarranted. Manufacturing Co. v. Worst, 207 U.S. 338, 28 S.Ct. 114, 52 L.Ed. 236; Engel v. O'Malley, 219 U.S. 128, 31 S.Ct. 190, 55 L.Ed. 128; Loan Co. v. Martell, 222 U.S. 225, 32 S.Ct. 74, 56 L.Ed. 175, Ann. Cas. 1913B, 529. A very wide latitude is permitted in making selections for classification, and necessarily so, for it is obvious that things may have diverse qualities and belong to the same class, or they may have many characteristics in common and be cast into different classes. Billings v. Illinois, 188 U.S. 97, 23 S.Ct. 272, 47 L.Ed. 400.
Sunday observance laws similar to the one under consideration are in force in practically every state of the Union, and almost without exception they contain provisions exempting certain businesses, occupations, or vocations. They are sustained quite uniformly upon the theory that the selection of subjects for exemption is peculiarly a matter of legislative discretion. Geyer v. Buck, (Sup.) 175 N.Y.S. 613. The decided cases are reviewed at length in Carr v. State, 175 Ind. 241, 93 N.E. 1071, 32 L. R. A. (N. S.) 1190, and in the note to 29 A. L. R. 397.
But, although theaters and playhouses are still proper subjects of police regulation, the fact that the state does not now see fit to exert its authority in that respect does not militate against its right to regulate other subjects clearly within the range of its police power. City of Butte v. Paltrovich, 30 Mont. 18, 75 P. 521, 104 Am. St. Rep. 698. The equal protection clause of the Fourteenth Amendment neither requires that state laws shall be perfect nor that the entire field of appropriate legislation shall be covered in a single enactment. Rosenthal v. New York, 226 U.S. 260, 33 S.Ct. 27, 57 L.Ed. 212, Ann. Cas. 1914B, 71.
Laws are not judged by theoretical standards, but by concrete conditions which induce them, and, before the defendant can insist that the amended act be condemned, he must be able to demonstrate that there are not any valid reasons for the application of Sunday observance regulations to dance houses and dance halls which do not apply equally to theaters and playhouses (Missouri, K. & T. R. Co. v. May, 194 U.S. 267, 24 S.Ct. 638, 48 L.Ed. 971; Watson v Maryland, 218 U.S. 173, 30 S.Ct. 644, 54 L.Ed. 987), and in this he has failed; at least we are not satisfied beyond a reasonable doubt that the classification made by the amended act is...
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