Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1880-08-05
CHINESE THEArER CASE.
The Superior Court Sustains the Lower
Court-It is a Nuisance.

The Superior Court Sustains the Lowe
Court-It is a Nuisance.
The case in which the tumult in the Chimes
theater was declared by the Police Court t.
be nuisance, and which was appealed to tn.
Superior Court, was decided yesterday. The
decision fully sustains the Judgment of the
lower Court, and will no doubt put a fnal
much to the satisfaction of the denizens Of
that vicinity The following is the decision
in the case, delivered by Judge benson
The People Vs. All Tim and All Luck
This is an appeal from judgment of the Fo-
lice Court of the city Of Sacramento, impos-
ing fines upon said defendants upon verdict
finding them guilty of disturbing the peace.
The defendants are performers or actors in q
Chinese theater, situated upon Third street
| in said city, and the noises complained of as
constituting disturbance were those made
in the ordinary course of a performance in
such theater That the noises were loud and
| unusual and continued late into the night
cannot be denied, in view of the evidence
contained in the record in fact counsel up
on the argument virtually conceded that the
acts proven constituted a mIsdemeanor, I'M
less such a performance was legalizsd by the
State and county license held by the proprie-
| tor of the theater A license was duly issued
by the proper officer to the proprietor of
the Third street establishment to conduct
a theater, and the license tax paid
/ What was the effect of this license? To
what extent did it authorize the doing Of that
which without such license would have been
unlawful? Section 1859 of the Political
Code, among other things, provides that a
license must be procured before the COM
mencement of any business or occupation
| liable to license. tax from the Tax Collector
! of the county where the applicant desires to
I! transact the same, which license authorizes
the party obtaining the same in his town,
city or particular locality in the county to
| transact the business described in such IL
cense." In another section of the same Code
the conducting of a theater is mentioned in
the list of occupations to be licensed. 1t re-
| suits that to conduct theater without IL
cense is unlawful, while the holding of
| license to conduct the same business makes
it lawful. The word theater is one having
well-understood meaning, and almost any
person of ordinary intelligence would readily
| understand the implications of a permit to
have theater.
tits also well understood that theatrical per-
| formances are attended usually with more or
less noise No theater in this country is com.
plete without its orchestra. The comedy,
tragedy or farce represented upon the stage
is frequently accompanied by loud noises,
such as shouting, screaming, discharging fire.
arms, stage thunder, ETC., etc., and sometimes
an audience is moved to make loud noises by
way of applause. All these things, however,
are occasional only, and the noises only occur
at intervals, and during the greater portion of
| the time there is no considerable disturbance
Of the peace and quiet of the immediate
neighborhood of the theater. In this case
the evidence shows that the performance
complained of commenced at an early hour
in the evening and continued till about mid
night. and that during all that time there was
continual din and noise, composed of dis
cordant sounds, such as fell harshly upon the
ear and made uncomfortable all persons in
the immediate vicinity.
| For the defense it is claimed that since the
| license authorized the conducting of thea
ter, and as it is conceded that the defendants
did nothing on this occasion except what is
usual in Chinese theater, therefore their
acts were authorized and lawful. But the law
does not authorize the conducting of Chi
nese theater, but merely permits license for
q theater. And the general proposition aP-
plies here, Notwithstanding the license, that
| every person must so conduct his own bust
ness, whether it be licensed generally or
specially, as not to unnecessarily or unreason-
ably interfere with his neighbors, either in
the way of establishing a nuisance in the way
of offensive sound, sights or smells, or by i'm
moral or obscene exhibitions. Suppose, for
| instance, a manager takes out q license for
theatrical business and introduced his play
| ers upon the stage in a state of nudity would
proof that such was the usual mode of doing
| such business in some remote land of which
| the manager was native cause his license to
! be construed as a special dispensation to thus
shock and outrage moral sense and de-
cency? | am of opinion that license is
sued under the revenue laws of this State
is not intended, in any sense, as an indulgence.
The chief object il to obtain revenue certain
classes of business are required to pay q
| special license tax, and in order to secure
the prompt payment of the tax the law de-
clares any person who shall conduct such
| business without license guilty of INSIDE
meanor. But | do not understand that the
| law anywhere implies that in consideration of
payment of money any person may be au-
thorized to do any act that would be unlawful
in itself, or against public morals or decency.
! A theatrical performance may or may not
! shock public morals, and may or may not
disturb the peace.
A church bell rung at proper intervals and
for reasonable length of time is not only
innocent but it is even convenient and COM
mendable; but does any one doubt that the
ringing Of ponderous church bell for several
hours at a time would become not only dis
turbance OF the peace of the neighborhood,
but an intolerable nuisance?
| In short, what is and what is not a dis
! turbanca of the public peace, is very largely
question of fact to he determined from the
circumstances OF each particular case, and
| depends almost entirely upon the manners
customs and civilization of the people making
and enforcing the laws.
Under our civilization theater is not
understood to be an institution so noisy as to
disturb the neighborhoed, and license to
conduct theater does not imply that the
! licensee is granted the privilege of commit
ting any unlawful act. The evidence here
clearly shows serious disturbance of the
peace, and since l find no error in the record,
the Clerk of this Court will file this opinion
and enter up judgment affirming the judg
ment of the Police Court.
benson, Judge.
NEXT TERM TRIAL JURoRs.-The following
are the names Of persons drawn as trial
! Jurors in the Superior Court for the next
session, and are required to appear in Court
ON the 7th day of September at 10 A. NJ. ::
James Coal, Benjamin Easterbrook, T. G.
Salisbury, Hiram +. Dixon, G. w. Siddal,
Richard Dale, Henry Echhardt, r. H. Petit,
George Peters, David Osborn, j. V. Sims,
Samuel Gottleib, L. J. Scott, J.. S. Stewart,
r. A Billy. j. 81. Henderson, J. w. Keat-
ing, David Strauch, Herman Holzinger, +.
+. Tebbetts, Jacob Miller, John B. Deseve,
J. W. Richmond, Edward +. ingalls,, Royal
Preston, N. w. Brooks, w. w. Paddock, L.
p. Smith, J. II. Castillo, John Hanlan, Pc
ter Trope, R. 4. Goggins William Almond,
/ J. B. Michel, c. H. Stevens, A. F. Core,
Thomas O'Toole, A. w. Robbins, Thomas
O'Brien. William Bartels, Michael Picket,
A. S. Hopkins, Daniel Reagan, George G..
Custer, Bernard Raft, Fred Newman, e. G..
Morton, Charles Clemmons, Leonard Kel-
logg, James c. Devine, Jules p. Colla
George NJ Parker, Bradford w. Grif6ths,
Martin Arenz, Frank Hasness Amariah
johnson, NJ. NJ. Odell, Anthony Egl, Charles
A. Everett, C. q. Barnes.
New RECLAMATION DIsTRIor-The appli-
cation of Frederick Meyers ct al. to have a
new reclamation district set off from Grand
Island, or Reclamation District No. 8, is be-
fore the Board of Supervisors. Yesterday
testimony was being taken in the matter be-
fore Win J. Davis as Notary Public, which
is to be read to the Board when tbs case is
considered General Williams appeared in
opposition to the petition, and Judge Welty
for the applicants.
BEHIND TrME.-The Stockton train was
an hour behind time yesterday afternoon,