conduct, or hold any dance, or conduct or maintain any dance hall, within the city, for which a charge shall be made to those attending, either in the form of admission or entrance fees, without first having obtained the consent of the board of aldermen. State v. Vanhook (1921) 182 N. C. 831, 109 S. E. 65.

Dancing in a restaurant to the music of an orchestra is an "amusement," within the meaning of a statute authorizing cities to license amusements and places of amusement. Chicago v. Green Mill Gardens (1922) 305 Ill. 87, 137 N. E. 126.

. .

Power to require a license to conduct a public dance hall is conferred. upon a municipal corporation by charter authority to pass ordinances "for the government and good order of the city for the suppression of vice, for the prevention of crime as they shall deem expedient, and to declare and impose penalties and to enforce the same." Mehlos v. Milwaukee (1914) 156 Wis. 591, 51 L.R.A. (N.S.) 1009, 146 N. W. 882, Ann. Cas. 1915C, 1102. It was said that the term "for the government and good order" of the city, by itself, is amply broad to cover the regulation of public places of amusement such as dance halls.

So, also, the passage of an ordinance requiring those engaged in the business of conducting a public dancing school to take out a license has been held to be authorized by legislative authority conferred upon the common council of a city to enact any ordinance that "shall be deemed expedient for the good government of the city, the protection of its property, the preservation of peace and good order, the suppression of vice, the benefit of trade and commerce, and the preservation of health." Conley v. Buffalo (1909) 65 Misc. 100, 119 N. Y. Supp. 87. See also the case of Geyer v. Buck (1919) 175 N. Y. Supp. 613, in which the court said that it fully concurred with the decision in that case.

An act giving to cities the power to license and regulate "traveling and other shows, circuses, and menageries, also athletic and scientific exhibitions, also theatrical and variety per

formances and plays, also plays, singing, or performances of any kind in any place where liquors are sold," has been held not to authorize a city to pass an ordinance forbidding any person or persons to hold in any place where liquors are sold, any ball or dance, either with or without music, without first obtaining a license for that purpose from the board of aldermen. Loertscher v. Jersey City (1913) 84 N. J. L. 537, 87 Atl. 68. The court in this case, while holding the ordinance not within the power of the city as laid down in the statute, freely admitted the advisability of licensing and regulating places where liquors are sold, and of supervising dances held therein. Construing the statute, the court said: "We are quite clear that the statute did not confer power on Jersey City to enact this ordinance. As has been already pointed out, . . the act speaks of shows, circuses, and athletic exhibitions. Plainly, a ball or dance is not seriously a circus or athletic exhibition; and quite as plainly, we think, it is not a show, which necessarily implies something to be shown, and spectators to look at it. . . . The legislature, no doubt, intended to use the word in a sense broad enough to include theatrical and vaudeville entertainments, but on the principle of noscitur a sociis dancing parties were not meant to be included."

By the Philippine Municipal Law (the applicable provisions of which are set out in the opinion), a municipality is authorized to enact an ordinance providing for a license tax for the maintenance and operation of public dance halls, and penalizing the violation of such ordinance. United States v. Rodriguez (1918) 38 Philippine, 759.

b. Administrative features.

1. Validity of legislation (statute, ordinance, or police regulation) as conferring discretion upon administrative body or officer.

Section 495 of the Revised Ordinances of the City and County of Honolulu, prescribing that, upon the application for a license to conduct a public dancing hall, "if the place for

the dance house or hall be approved as a fit and proper place for keeping or conducting a public dance house or hall in the opinion of the majority of the dance hall inspectors," a license may issue, is unconstitutional and void in that it lays down no standard by which the fitness of the premises for the purpose contemplated may be determined, but leaves such determination to the uncontrolled opinion of the dance hall inspectors. Territory v. Ontai (1925) 28 Haw. 534.

Arbitrary power sufficient to render an ordinance invalid is not conferred upon the mayor with respect to the granting or refusing of a license for a public dance hall, where the ordinance fixes the standard of fitness for the place where it is to be conducted, and requires the mayor to act upon the report of four city officials (chief of police, building inspector, commissioner of health, and chief of the fire department) as to whether or not the standard has been met. Mehlos v. Milwaukee (1914) 156 Wis. 591, 51 L.R.A. (N.S.) 1009, 146 N. W. 882, Ann. Cas. 1915C, 1102. Said the court: "In view of the foregoing, what foundation is there for the claim that the ordinance clothes the mayor with arbitrary power in the matter of passing upon an application for a license, affording him opportunity, irremediably, to act upon his personal prejudice or mere caprice or some unworthy motive? It provides for a most careful, impartial, intelligent investigation by four city officials of high station, and contemplates that the mayor will honestly apply his judgment to the result. If he should refuse a license without doing so in the particular manner suggested, or refuse, under such circumstances as to clearly indicate the existence of some improper motive therefor, judicial remedies would be found ample to redress the wrong."

Nor is arbitrary power conferred upon the mayor with respect to the forfeiture or revocation of licenses, though that power is lodged in him by the ordinance, where the grounds of revocation are clearly specified, and just as clearly, by implication, it is

provided that he shall proceed in the performance of his duties as a quasi judicial tribunal. Ibid.

An ordinance forbidding any person, etc., to give, conduct, or hold any dance, or conduct or maintain any dance hall, within the city, for which a charge shall be made to those attending, either in the form of admission of entrance fees, without first having obtained the consent of the board of aldermen, is not invalid as conferring upon the board of aldermen unlimited discretion in granting or refusing licenses, and as prescribing no uniform rule by which the board shall be guided, permitting the board to pass upon each application according to its own pleasure. State v. Vanhook (1921) 182 N. C. 831, 109 S. E. 65. Said the court: "But the board is not clothed with arbitrary or unlimited discretion. Whether a license shall be granted upon application is a matter within the limited legal discretion of the board. It is true that, in the absence of abuse, such discretion cannot be controlled by the courts, but the ordinance is not for that reason void. . . . Of course uniformity of operation upon all alike. is essential, but this requirement is met by the express language of the ordinance."

Police regulation providing that permits to conduct dances or entertainments of any kind in halls or other places may be refused by the commissioners of the District of Columbia whenever such places, from the character of the applicant “or the nature of the surroundings, are likely to become the scene of disorder" or other violation of law, and providing that any person protesting shall be entitled to a public hearing before the assessor, who shall ascertain and report the facts, together with his advice thereon, to the commissioners, is not subject to the criticism that it is void for indefiniteness, on the theory that it furnishes no uniform standard by which the meaning of the term "nature of the surroundings" can be ascertained, but leaves the whole matter to the opinion of the commissioners, hence subjecting the rights of the citi

zen to their absolute, uncontrolled, and arbitrary action. United States ex rel. Russell v. District of Columbia (1921) 50 App. D. C. 296, 271 Fed. 370. Said the court: "The standard is: Do the character of the applicant and the nature of the surroundings show that the place would likely become the scene of disorder or other violation of law if the permit were issued? We think it is definite and easily understood. The question calls for a determination of fact which is to be made by the triers of fact-the commissioners-after a public hearing. The norm is certainly as definite as where the question of negligence is involved in a law action. In such a case the court defines negligence as the failure to do that which a reasonably prudent man would do under similar circumstances. What would he do? The jury must answer, and then determine whether the evidence discloses that the person's conduct which is under analysis conforms to the answer. So, here the commissioners must determine from the evidence whether or not the place in question would likely become the scene of unlawfulness if a permit were granted. The standard in the one case is just as definite as in the other."

The regulation is not rendered invalid because the determination of the nature of the surroundings and the likelihood that the place would become the scene of disorder is confided to the judgment of the commissioners, since every question of fact in the administration of justice, as well as in the executive department of the government, must be resolved in harmony with the judgment of someone. Ibid. As the court added: "The judgment of the commissioners, however, cannot be capricious or arbitrary. There must be, as we have seen, some competent evidence to support it."

The regulation is not subject to the criticism that it is void for indefiniteness, on the theory that no one can safely use his property for a public dance hall, because he is unable to determine what is the "nature of the surroundings" which will render his hall unfit for that purpose. Ibid. Said

the court: "As well may a person say he could not use his property for an industrial plant, because he could not tell what a jury might hold to be negligence on his part in case of injury to his employees. But reasonable men, we think, would have no difficulty in determining whether or not the surroundings of a given place were likely to lead to disorder."

A rather extreme case is that of Rowland v. State (1922) 104 Ohio St. 366, 135 N. E. 622, in which the validity and constitutionality of a statute making it a criminal offense for any person to give or permit a public dance in any building, etc., in a city or village without having previously obtained a permit from the mayor thereof, was upheld, as against the contention that the legislature is without power "to grant to a mayor of a municipal corporation the authority to arbitrarily determine that a man shall not use the premises which he owns in that corporation for the purpose of giving upon his premises a public dance." Said the court: "What principle of the Constitution, state or Federal, is violated by a denial of such permit, it is difficult to comprehend. It is not sought to restrain the use of property as to all dancing, but only as to public dances, where all classes of people, regardless of morals, health, peace, or safety, are permitted to assemble, hodgepodge, and associate together." The decision may be taken, therefore, as authority for the proposition that the legislature may prohibit public dancing, or delegate the power to prohibit public dancing to the judgment and discretion of a city official. In fact, the court says: “It should be observed that the statute in a general way outlaws 'a public dance.'

The legislature declared public policy to be against public dances in cities and villages, unless the one giving such dance should secure a permit from the mayor, who, in the preservation of the public peace and good order, is the people's representative in affairs of government. In short it was left to the judgment and discretion of the mayor, having regard to the local conditions in the city or village, to de

termine whether or not public dances might be allowed notwithstanding the statute.. . The act here under consideration clearly vested in the mayor full power and authority to issue a permit, which likewise involves the power and authority to refuse to issue the permit. . . . The legislature wisely determined that this is a proper matter for the head of the local government, the mayor, to determine. He is the proper representative of the people, chosen by the people, responsible to the people, and is no doubt representative of the people so far as the public morals, peace, safety, and welfare are concerned,-at least so far as they may be affected by public dancing."

For decisions upholding the validity of legislation, as against the contention that unlimited or arbitrary discretion was conferred upon administrative body or officer, see subd. X. b, 1, supra.

It has been held that mayor was justified in refusing license to conduct a dance hall in a building which had not yet been erected, where ordinance made examination, etc., a condition. precedent to the issuance of a license, thereby contemplating a building, etc., should be erected before license should issue. People ex rel. Blue Danube Co. v. Busse (1910) 248 Ill. 11, 93 N. E. 327.

And it has been held that under a statute enacted as a police, and not a revenue, measure, authorizing the board of county commissioners to grant licenses to keep saloons, hotels, public houses, or groceries, the power of the board to license dance halls includes the power to refuse a license, even where statutory or preliminary requirements are complied with, provided there is no arbitrary exercise of the board's discretion. Downes v. McClellan (1922) 72 Colo. 204, 210 Pac. 397. In this case, wherein complainant contended that the commissioners had discretion only where a license was sought for a saloon or grocery,

since the next following section of the statute, authorizing the board of county commissioners to grant licenses, provided that, "upon application for licenses to keep saloons or groceries, the board may reject or grant the same in their discretion," it was held that complainant, who proposed to sell soft drinks in connection with the dance hall, was in no better position, conceding this to be true, "for a dance hall where soft drinks are sold is a saloon."

In Ohio, it has been held that a statute making it a criminal offense for any person to give or permit a public dance in any building, hall, room, or rink in a city or village, without previously having obtained a permit from the mayor thereof, vests in the mayor full power and authority either to issue or refuse to issue a permit to any and all persons and places within a city or village, without giving any reasons therefor; and that the exercise of such power is not an arbitrary abuse of the statutory or constitutional power, Rowland v. State (1922) 104 Ohio St. 366, 135 N. E. 622. As the mayor testified in this case, his only reason in refusing a permit to defendant was that he would not have issued a permit to any person whomsoever to give a public dance in the village of which he was mayor.

3. Compelling issuance or renewal of license or permit; mandamus, when allowed.

It has been held that, since the statutory authority of the board of county commissioners to grant licenses to dance halls includes the power to refuse a license (even where statutory or preliminary requirements are complied with), mandamus will not lie to compel the granting of a license where it is not alleged and shown that there was an arbitrary exercise of the board's discretion. Downes v. McClellan (1922) 72 Colo. 204, 210 Pac. 397.

And it has been said that commissioner of licenses, having full power to decide whether or not a license should be granted, cannot be compelled by mandamus to issue a license

to conduct a dance hall. Raner v. Goldberg (1926) 215 App. Div. 355, 213 N. Y. Supp. 345.

In the District of Columbia, it has been provided by the Police Regulations (art. 6, § 25): "Permits to conduct dances or entertainments of any kind in halls or other places may be refused by the commissioners of the District of Columbia whenever such places, from the character of the applicant or the nature of the surroundings, are likely to become the scene of disorder or other violation of law, or may be revoked at any time whenever such places become the scene of disorder, or other violation of law. Any person protesting, or the applicant or permittee, shall be entitled to a public hearing before the assessor, who shall ascertain and report the facts, together with his advice thereon, to the commissioners." (Such a regulation was authorized by act of Congress.) Where the commissioners, acting under authority of the above regulation, refuse to issue or renew, after public hearing as provided, a permit for conducting a dance hall, their decision will not be disturbed by the court, as by granting a writ of mandamus, unless the commissioners, in the exercise of their jurisdiction, acted arbitrarily or capriciously, they being administrative officers and permitted to exercise a sound discretion in all matters which come within their jurisdiction; the question is not whether they erred in the determination of a question of fact, but rather whether there was sufficient evidence to warrant the exercise of their judgment and discretion. Richards v. Davison (1916) 45 App. D. C. 395; United States ex rel. Russell v. District of Columbia (1921) 50 App. D. C. 296, 271 Fed. 370.

See also the case of State v. Vanhook (1921) 182 N. C. 831, 109 S. E. 65, as set out in subd. X. b, 1, supra, in which it was said that, the matter of granting a license being a matter within the limited legal discretion of the board of aldermen, their discretion cannot be controlled by the courts, in the absence of abuse.

In order to obtain a writ of mandamus commanding the mayor to issue a

license to conduct a dance hall, it must appear from the petition, not only that the ground upon which refusal of a license was based was not a legal excuse, but that the petitioner has complied with all the valid requirements of ordinances requiring a permit and license. People ex rel. Blue Danube Co. v. Busse (1910) 248 Ill. 11, 93 N. E. 327.

Demurrer to petition for mandamus to compel issuance of license by tax collector, and permit by board of police commissioners, to continue the conduct of a dancing pavilion in certain premises, was improperly sustained, where, from the allegations of the petition, it appeared that the board, in refusing to renew permit, acted in an an arbitrary and capricious manner, forcing plaintiff out of a lawful and profitable business upon premises leased and fitted up for that purpose upon the faith of the permit theretofore granted, and conducted in a manner above criticism, while others in like situation and condition were permitted by the same authority to continue. Pavilion Ice Rink v. Bryant (1922) 58 Cal. App. 584, 209 Pac. 76. Said the court: "From the allegations of the petition, it appears that, without any legal cause, but arbitrarily, oppressively, and capriciously, the board suddenly terminated plaintiff's right to conduct a lawful and profitable business upon premises which were leased for that purpose upon the faith of the permit theretofore granted. It is not necessary to discuss the many constitutional questions argued by the parties. The right of the city to regulate a business of this nature may be conceded. The point of the case is that the petition alleges that the appellant was not subjected to regulation, but that it was arbitrarily and capriciously forced out of business, while others in like situation and condition were permitted by the same authority to continue. It is not necessary to cite authority to the point that a lawful business, properly conducted, and not injurious to persons, property, or public welfare, cannot be confiscated by the arbitrary and ca