New-York tribune., 1874-05-22
THE COURTS.
TIIEATERS RESISTING TAXATION.

TIIEATERS RESISTING TAXATION.
INTERESTING SUIT BETWEEN NINE THEATRICAL
MANAGERS THE SOCIETY FOR THE REFoR-
NATION OF JUVENILE RGUMENr5
OF EX-MAYoR HALL AND wM. NJ. EvARrs
One of the most interesting questions OF
law before the courts Is raised in regard to the con-
5uonaty Of statute, the original passage OF which,
though In miiier form than at present, occurred In
1929, IL is brought up IN the suits OF the theatrical
managers OF NewYork against the City and the Society
for the Reformation OF Juvenile Delnquents The act
now disputed constitutional grounds is found In
CHAPTER $50 of the Laws OF NewYork, was passed on
MAY o. 1872 and is entitled "An act TO regulate
places of public amusement in the City or
New-York." This act authorizes the Mayor TO grant
license 10 theates for $780, which is to be paid over
to the Society for tho Reformation of Juvenile Deln
quents, and il provides that every manager VINO sRa
neglect to take out such license shall be subjected TO
penalty OF slOO for every exhibition or performance
without license that the Society for the reformation
of Juvenile Delnqucnts may for and recover tins
money for its own use In the OF the people The
other sections OF the statute are less important Iney
make the neglect to pay license fee nsdemeanor on
part OF managers and prOpretors punishable by im
prisonment in tho Penitentary for term not
less than three months more than a year.
and by a fine not less than 500 nor more
than $780, by both fine and imprisonment
II is also made the duty Of every chief of police, sheriff.
deputy sheriff constable, captain OF police, and police
to time place OF amusement. and
any person violating the provisions OF the act
Finally 1t is made lawful for the society alluded to to
apply to Supreme Court for injunction TO restrain
the opening Of any theater until the license shall have
been paid The suits against the Society are nine in
number, two Of which are brought by Augustn Daily,
ana the remainder by Mr. Waack, the managers OF tho
Academy OF Music, Jarrett & Palmer OF NIbo's, Sher
dan Shook OF the Union Square Charles Chamberlain r
and Francis b. Murths, who are represented by ex-
MayorHa as counsel The Society Is defended by the
Hon. wm II. Evaris and aIr Robinson. Heretofore the
Licenses have been paid by the theaters and it to
have only this year that the managers OF the latter
have determined to resist what they regard as an unjust
tax and an unconstitutional law Having been threat
ened by the Society they have originated the present
suits to enjoin the latter from suing them or from
obtaining injunction shutting up their places Of
amusement until the Licenses are paid.
The matter came before Judge Donohue yesterday on
an order granted by Judge Lawrence on May against
the deiendants-the City and the Socety-to show
cause why temporary injunction GRANTED at the same
tme) should not be continued restraining tho Society
from bringing suits or getting an Injunction, and the
argument that followed confined to the Wallack
suit the OF which all the other plaintiffs have
agreed to abide Mr Hall gave his leading authority
for bringing the application the familiar Of Wood
against the City OF Brooklyn in IA Barbour, 433,
where Judge Strong Special Term allowed an nunc-
tion against the Mayor, &c, Of Brooklyn when they
threatened TO enforce In 1852 the statute and ordinance
in regard TO the selling Of liquor. Mr. Hall for his
second point to the bottom Of the whole contro
yersy and declared the law Of 1872 void and unconst
tutional, because QD its whole scheme is to
force by extraordinary penal and summary both
criminal and civil each theatrical manager TO pay $500
wear license for the sole OF the Juvenile Den
quent Society else their places Of business to
be shut up and 0 this being the scheme the law Is void
because authorizes substantial tax for objects and
uses not within the of the taxing power and takes
the private property Of citizens TO give 1t to private
and local citizens corporatonthus taking the property
OF one citizen giving to another without any
pensation which is violation OF both the State and
Federal Constitutions. The counsel quoted the opinion
of ChiefJ Justice Savage in the matter OF Albanys.
M Wend I4s) and that OF Senator Tracy in Bloodgood
agt The Mohawk and Hudson River Railroad
Company Qs wend., o9,, and also cited
the case Of Embury agt. Conner Is N. Y,
sssl7J Mr. Hall argued that the business of theater
is essentially private, and so much so that managers
NAV arbitrarily refuse admissions II ticket money
be rendered. exclude those who have already paid
upon returning entrance moneys, according TO deci-
sons 10 the of McCrea agt Marsh Il? Gray 2l2J
and Wood agt Leadbsater Q3 Meeson and Welsby 3ssD
) Even If the license fec be not in the nature OF
upon the business statute is unconstitutional be-
cause there is nothing In the business OF the plaintiffs
which authorizes the imposition OF license through any
proper exercise OF police regulation The counsel
quoted opinion OF Judge Dillon OF the United states
Circuit Court In 1873, In the Of the Commercial
Rank agt The City OF lola, a Dillon. 359735l,)
In which he says that O Legislature cannot
compel or coerce citizen to aid In the establishment
of purely private enterprises objects because these
NAV or will incidentally promote the general good OF
the community or locality; that Courts have every
where agreed that taxes can lawfully be imposed for
public purposes only. An important opinion cited
that Chief Justice Black in the case OF Sharpless
against Philadelphia In 2l Pennsylyania Statutes 1i,
which was the groundwork OF considerable argument
nv Mr. Eyarts after Mr. Hall had concluded The Judge
in that case said The Legislature has consttu-
tional right to create public DEBT or authorize any
municipal corporation to do 1t In order TO raise funds
for a mere private purpose. Taxation Is mode OF
raising revenue for puOic purposes"
The counsel argued that the Juvenile Delinquents
Society was entirely u private charitable organization
by virtue OF s corporation statute, passed March 20.
1924 aud many times amended. Even the inmates
received gisraes and It's private corpo
rators have exclusive discretion for pardon. There
are no State municipal officers ofnco In Its
ngement One OF its boasts has long been that because
t private correctional Institution it better
than the public one under municipal control In New
York City IT, In due, such legislation to DO permit
ted, each humane legislature might have some pet
charity nourlsh aud might select some distinctive
branch OF private Industry to pay license fee for tho
OF his pet thereby real taxation would become
yerted
Mr.. Eyarts, in reply. began This charity, by which
corporation has been used by the State 10 execute Grim
nal Justice In the form of humane guardianship rather
IL public reprOJatl0u aud stigma boon enforced