#### City of Boston *versus*John H. Schaffer *et al.*

Under *St.*1821, *c.*110, authorizing the mayor and aldermen of Boston to license theatrical exhibitions, the license need not be made in writing.

Under the provision authorizing the mayor and aldermen to license theatrical exhibitions, “ on such terms and conditions as to them may seem just and reasonable, * they may exact money for the license.

An action on a promise to the mayor and aldermen to pay for a license, is rightly brought in the name of the city, the mayor and aldermen being merely agents of the city.

It is competent to the legislature to grant to a city or town power to exact the payment of money as one of the conditions of granting a license for theatrical exhibitions.

Assumpsit. The declaration- alleged, in the first count, that the defendants, on January 10th, 1S2S, being the proprietors of a building in the city of Boston, called the city theatre, in consideration that the mayor and aldermen of the city would grant them a license for theatrical and equestrian exhibitions in the theatre, for the term of one year from that date, promised the city to pay them $ 1000 on demand ; and that the mayor and aldermen did grant them such a license.

In another count it was alleged, that the defendants, on February 1st, 1828, being proprietors of the theatre, in consideration that the mayor and aldermen bad granted them a license for the term of one year from January 10th, promised the city to pay them $ 1000 on demand.

The general issue was pleaded.

At the trial, before *Wilde*J., the plaintiffs introduced a bond, dated February 1st, 1828, signed by the defendants, in which they bind themselves to the city in the sum of $ 5000. The condition is, that whereas the defendants, “ proprietors of the city theatre, so called, in Washington gardens, having been duly licensed according to law, for theatrical and equestrian exhibitions,” from January 10th, 1828, to January 10th, 1829 ; now if the proprietors shall well and truly comply with all the regulations respecting theatrical and equestrian exhibitions, the bond shall be void.

Also a copy from the records of the mayor and aldermen, under date of January 21st, 1828, as follows : “ Ordered, that the licenses to the several theatres be renewed upon the same *423terms and conditions as the last year, viz. on giving bonds, and paying 1000 dollars each per annum.”

There was evidence that Schaffer took the bond from the city clerk to have it executed ; that when he returned it, the proprietors of the theatre presented a petition to the mayor and aldermen, in which it is stated, that the annual tax of $ 1000 upon the proprietors of the city theatre for their license is extremely oppressive ; and the petitioners request the mayor and aldermen, if possible, to grant them permission to keep the theatre open, by remitting to the city clerk weekly the sum of twenty-five dollars, so long as the establishment shall be continued in operation, or they will be under the necessity of closing the same altogether. This petition was indorsed “ not granted.”

It appeared that Schaffer had, in the mode pursued by him for several years before, paid at various times, for the year 1828, the sum of $400 to the city clerk.

The theatre was opened for performance on the 4th, 11th, and 18th of February, 1828, and from the 7th of October of the same year, to the 8th of January, 1829, sixteen weeks.

The city clerk testified that it was usual to make out and issue licenses to the theatres, upon paying the sum required, or securing the same ; that, in this case, no license had, in fact, been issued, or delivered to either of the defendants.

The defendants introduced evidence for the purpose of showing that an agreement to pay $ 25 a week, only during the time the theatre was open, was substituted for the contract to pay $ 1000 for the year.

The judge instructed the jury, that a promise, express or implied, to the mayor and aldermen, was a promise to the city, they being the agents of the city for this purpose : —

That the bond was evidence that the defendants were proprietors of the theatre : —

That they thereby acknowledged that a license had been granted, and that if this contract was not waived by the one contended for, to pay $ 25 per week only while the theatre was open, by the other evidence in the case the plaintiffs were entitled to a verdict.

A verdict was returned for the plaintiffs.

*424To the foregoing instructions the defendants excepted. The judge, reserving to the defendants the right to take their exceptions, overruled the following objections : —

1. That the 14th section of the city charter *(St.*1821, c 110,) upon which the plaintiffs relied, did not authorize the mayor and aldermen to require the payment of a sum of money as an excise or tax, or otherwise, as one of the conditions of granting a license for theatrical performances. [The 14th section provides, that the mayor and aldermen shall have power to license all theatrical exhibitions “on such terms and conditions as to them may seem just and reasonable.”]

2. That the vote of the mayor and aldermen of January 21st, 1828, was inoperative as to the price for a license, by reason of the by-law of the city, of December 18th, 1826, which ordains, that if any person shall violate the provisions contained in the 14th section of the act establishing the city of Boston, such person shall forfeit and pay, for each offence, a sum not less than five dollars nor more than twenty dollars.

3. If the legislature, by the 14th section of the city charter, conferred or delegated to the mayor and aldermen an authority to impose the payment of money, or establish an excise or tax on licenses, as contended for by the plaintiffs, it is in violation of the constitution.

If the instructions to the jury were erroneous, a new trial was to be granted ; or if the judge erred in overruling either of the abovementioned objections, a nonsuit was to be entered.

*Aylwin*and *Blair,*for the defendants,

insisted on all the objections made at the trial. The promise was to the mayor and aldermen, and not to the city. The city have the power to make by-laws and impose penalties ; but the power to license is given to the mayor and aldermen, and the action should have been in their name. It is only a statute or a by-law that can enable the city to enforce the contract. Bac. Abr. *Corporation, E ; Stetson*v. *Kempton,*13 Mass. R. 278.

The mayor and aldermen are not authorized to exact money as a condition for granting a license. They have the same power which the Court of Sessions had under *St.*1805, *c.*98 ; which court could grant a license, but could not demand monev for it. By the phraseology, “ such terms and conditions as to *425them may seem just and reasonable,” the legislature intended to enable the mayor and aldermen to establish a censorship, fix the time and place of exhibition, and do other things relating to police.

The bond was not an acknowledgment that the defendants were proprietors of the theatre, or that a license was granted to them; and by the plaintiffs’ own showing, there was no license. The defendants said they would not accept a license, unless the terms of their contract were altered ; and the bond was deli\rered rather as an escrow. The defendants are liable for the penalties under the by-law of 1826, for exhibiting without a license.

It would be beyond the right of the legislature to grant power to lay an excise. The legislature are to determine what is a reasonable excise, and they cannot delegate the power. Declaration of Rights, *art.*23 ; *St.*1781, c. 22 ; Constitution, c. 1, § 1, *art.*4 ; *Lindsay*v. Commissioners, *&c.*2 Bay, 56 ; *Corfield*v. Coryell, 4 Wash. Circ. C. R. 380. At the time when the city charter was granted, if the power to take money for such a license was conferred on the city, it was a peculiar privilege, and contrary to the 1 Oth article of the Declaration of Rights. *Portland Bank*v. Apthorp, 12 Mass. R. 252 ; *Holden*v. James, 11 Mass. R. 396. If the mayor and aldermen have this power, it is unlimited.

*J.*Pickering, (City-Solicitor,) for the plaintiffs,

to the point that the mayor and aldermen, acted as agents for the city, referred to Mechanics’ *Bank*v. *Bank of*Columbia, 5 Wheat. 326. As to the right to demand money for a license, he referred to *St.*1821, c. 110, § 13, 14; *St.*1825, c. 152, § !, 3.

*Per Curiam.*

No formal, written license was given to the defendants, but that is not material; for there was a vote of the city that the license to the theatre should be renewed, on the proprietors giving bond and paying $ 1000 a year, and the defendants have proceeded as under a license.

It is clear, that in granting the license, the mayor and aider-men are mere agents of the city, and the action is well brought in the name of the principal.

It is objected, that the statute of 1821, c. 110, gives no *426power to the city to exact money for the license. The authority to the mayor and aldermen is, to license “ on such terms and conditions as to them may seem just and reasonable.” Though the exacting of money is not expressly mentioned, it is not excluded by these general words, and was doubtless in the contemplation of the legislature; for in *St.*1825, e. 152, § 1, by which the selectmen of each town are empowered to license theatrical exhibitions, the same language is used, and in § 3 it is provided, that “ *all monies*which shall be received for such licenses (if any) shall be appropriated,” &c. This is a legislative construction of the first statute.1

Another objection is, that it is not competent to the legislature to grant to a town or city, power to assess a tax which is not general. If this were a tax, the objection would be valid ; but the price to be paid for the license is of the nature of an excise on a particular employment. The levying of an excise has been practised in regard to other occupations, and the constitutionality of it has never been doubted. There can, therefore, be no objection to it in the present case, admitting theatrical entertainments to be as meritorious as other occupations. But it seems to be peculiarly proper in employments of this kind. They require to be watched. Towns are put to expense in preserving order, and it is proper they should be indemnified for inconveniences or injuries occasioned by employments of this nature.

The proposition to pay twenty-five dollars weekly, during the time that exhibitions should be made, was not acceded to by the city. Receiving payment by instalments was a mere indulgence to the defendants, and not a variance of the contract.

*Judgment according to verdict.*

1

 See Revised Stat. *c.*58, § 1.