In England, it has been held that a license to conduct a house or room for public dancing, etc., may not be transferred without the consent of the licensing authorities. Hoffman V. Bond (1875) 32 L. T. N. S. (Eng.) 775 (further holding that, if transferred without their consent, a renewal of the license may be refused).

g. Forfeiture or revocation.

1. Right of; constitutional objections. It has been held that the legislature may delegate to a municipality the power not only to license and regulate dance halls, but also, in the interest of public morals, to provide for the revocation of such licenses. State v. Vanhook (1921) 182 N. C. 831, 109 S. E. 65.

The license of a public dance hall, issued subject to revocation or forfeiture if immoral or disorderly conduct be habitually permitted upon the premises, being not transferable property, is not within the constitutional protection of property rights. People ex rel. Ritter v. Wallace (1914) 160 App. Div. 787, 145 N. Y. Supp. 1041 (further holding that, for this reason, the revocation may be purely administrative, rather than judicial).

Provision in city ordinance, that the license of any public dance hall shall be forfeited or revoked for disorderly or immoral conduct on the premises, or for violation of any of the valid rules, regulations, ordinances, and laws governing or applying to public dance halls or public dances, is not unreasonable, as going beyond reasonable boundaries of conservation of the right to use property and to indulge in the amusement incident to public dances. Mehlos v. Milwaukee (1914) 156 Wis. 591, 51 L.R.A. (N.S.) 1009, 145 N. W. 882, Ann. Cas. 1915C, 1102. (See this case, as also set out in subd. X. b, 1, supra.)

It has been held, however, that the amendment of a city by-law for licensing public dance halls, by which it was attempted to compel licensees whose licenses previously granted would not expire until the end of the year, to close on Sundays, is invalid, as being in violation of acquired rights. Mont

real v. Maloney (1922) 39 Can. Crim. Cas. 91. (The decision in this case was unnecessary, however, as the court held that cities had no power to legislate on the subject of Sunday observance, the Parliament of Canada having assumed to legislate on the whole subject.)

It has been held that a dance hall is a "pubiic place of amusement," within the meaning of act of Congress providing that any license issued by the assessor of the District of Columbia to the proprietor of a theater or other public place of amusement in the District of Columbia may be terminated by the commissioners thereof whenever it shall appear to them that, after due notice, the person holding such license shall have failed to comply with such regulations as may be prescribed by the commissioners for the public decency. Richards v. Davison (1916) 45 App. D. C. 395.

2. Necessity for notice, hearing, or conviction.

Compare Richards v. Davison (1916) 45 App. D. C. 395, as set out in subd. X. b, 5, supra.

Since the license to conduct a public dance hall, issued subject to revocation or forfeiture if immoral or disorderly conduct be habitually permitted upon the premises, is not within the constitutional protection of property rights, being not transferable property, the licensing authority, when such conduct appears, need not wait until the licensee has been actually convicted of keeping a disorderly house before revocation of the license, but the revocation may be purely administrative, rather than judicial. People ex rel. Ritter v. Wallace (1914) 160 App. Div. 787, 145 N. Y. Supp. 1041. The court observed that, in making revocation administrative, without a hearing with the administration of an oath to witnesses, the legislature did not intend to leave the morals of a neighborhood subject to be imperiled while a protracted hearing should hold in abeyance the proper administrative action to terminate or recall a license used to cover immoral or disorderly conduct.

3. Recovery of portion of fee upon. Conceding that a city, in the exercise of its police power, has the right to prohibit as a nuisance public dances conducted in connection with a saloon (which question was not raised), where it has issued a license for a year to conduct such dances, it is bound, upon the going into effect of an ordinance prohibiting such dances as a nuisance, thereby virtually revoking the license by its own act, to repay the unearned portion of the money paid as a license fee. Pearson v. Seattle (1896) 14 Wash. 438, 44 Pac. 884.

That licensee's claim presented to the city council was not verified as required by the city charter cannot be set up as a defense to an action against the city for the unearned portion of the license fee, where the claim was rejected solely upon the ground that the city was not liable, and there is no provision in the city charter that an action shall not be maintained on an unverified claim. Ibid.

Where licensee conducted public dances in connection with his saloon for nearly a year, with the knowledge and acquiescence of the city authorities, the city, having received and retained the license fee, cannot claim, upon revocation of the license, that it was invalid in that it did not specify the kind of amusement and the particular place licensed, as required by ordinance, or even that the license, which simply authorized licensee to "run a place of amusement," did not authorize the carrying on of the business in which licensee was engaged, and that, therefore, the license fee was voluntarily paid and cannot be reclaimed. Ibid.

4. Reissuance or renewal after. In People ex rel. Ritter v. Wallace (1914) 160 App. Div. 787, 145 N. Y. Supp. 1041, it was said with respect to the reissue of licenses after revocation: "The revocation of a license implies that it is in force until it is recalled; apparently under this statute a revoked license may be considered as suspended, to be reissued on compliance with the proper con

ditions, since § 1493 [Greater New York Charter] speaks of the case where a license has been revoked twice within six months."

For a case in which it was held that a permit to conduct a dance hall was properly denied, for sufficient reasons, to one whose license to conduct the hall had been revoked some years before, see United States ex rel. Russell v. District of Columbia (1921) 50 App. D. C. 296, 271 Fed. 370, as set out in subd. X. b, 4, supra.

h. Statute or ordinance as requiring in particular case.

1. Generally; American cases. For definition of terms, generally, see subd. I. and cross references therefrom.

For statute construed, as authorizing municipality to require license or permit, see subd. X. a, 4, supra; and for legislation construed, as conferring discretion upon administrative body or officer, with respect to licenses and permits, see subd. X. b, 2, supra.

A dance hall to which the public is admitted upon payment of a small fee is a "public amusement," within the meaning of a statute prohibiting the setting up or maintenance, without a license, of a public show, public amusement, or exhibition. Com. v. Quinn (1895) 164 Mass. 11, 40 N. E. 1043. In the earlier case of Com. v. Gee (1850) 6 Cush. (Mass.) 174, this question was left open, the court expressing no opinion. And a public dance is a "public amusement," within the meaning of an ordinance imposing a license fee on every theater, opera, concert, show, exhibition, or other public amusement that is given in or adjoining to or connected with any saloon, drinking house, or other place where intoxicating liquors are sold or disposed of. Pearson v. Seattle (1896) 14 Wash. 438, 44 Pac. 884.

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, the word "amusement" being synonymous with diversion, entertainment, recreation, pastime, or

sport. Chicago v. Green Mill Gardens (1922) 305 Ill. 87, 137 N. E. 126 (further holding that, dancing being permitted, it is immaterial that only food and soft drinks are served in the restaurant, or that by the term "amusement" the legislature did not intend to include places where food and soft drinks, only, are served). Again, it has been held that a statute providing that public amusements may be licensed by mayor is broad enough in its scope to include public dances and dance halls. Whitcomb v. Vigeant (1922) 240 Mass. 359, 19 A.L.R. 1439, 134 N. E. 241.

However, a mere school for instruction in dancing, although admittance to such school is paid for on each evening, is not a "public amusement," etc., within the meaning of a statute prohibiting the setting up or maintaining, without a license, of a public show, public amusement, or exhibition. Com. v. Gee (Mass.) supra. It was said, however, that this view of the statute would not protect a party setting up places of "public amusement," admission to which is conditioned upon the payment of money, under the color or pretense of schools for teaching dancing.

Under a statute requiring that all dancing academies shall be licensed, and defining a dancing academy to be a "room or place" in which dancing is taught for a consideration to all applicants, pursuant to public notice of any kind, the "room or place" may be a small room or a large place; it includes a room in a school building and the parlors of a building otherwise used as a private house. People ex rel. Duryea v. Wilber (1910) 198 N. Y. 1, 27 L.R.A. (N.S.) 357, 90 N. E. 1140, 19 Ann. Cas. 626, reversing order in (1909) 134 App. Div. 965, 119 N. Y. Supp. 1140.

A dance hall where soft drinks are sold has been held a "saloon," within the meaning of a statute authorizing the board of county commissioners, upon application for licenses to keep saloons or groceries, to reject or grant the same in their discretion. Downes v. McClellan (1922) 72 Colo. 204, 210 Pac. 397. In this case it was ap

parently assumed that the board was authorized to require a license for keeping such a place, under a statute providing that they "may "may grant licenses to keep saloons, hotels, public houses, or groceries."

A house kept for public dancing, merely, is not a "hurdy-gurdy" house within the meaning of a statute entitled "An Act to Regulate HurdyGurdy Dance Houses," and providing that no person "shall be allowed to keep any house for the public dancing commonly called hurdy-gurdies, unless licensed to do so, as provided by this title." State v. Tilley (1881) 9 Or. 125. The court did not attempt to define the term, considering it unnecessary to do so in the decision of the case before it.

An ordinance making it a criminal offense to keep a "public dance house within the limits of the city which shall be open promiscuously to the public, either upon the payment of an admission fee or otherwise, without a written permit issued therefor by the chief of police and the humane officer," has been held to be aimed at houses or halls devoted to public dancing, or where such dancing is a substantial feature of the business, and not to apply to a restaurant and confectionery business having in connection therewith and therein a place to dance free of charge, as a mere incident of the real business carried on, and solely to promote such business. St. Joseph v. Safris (1926) – Mo. App., 282 S. W. 1032. (Compare English cases hereinafter set out in subd. X. h, 2, infra.)

Of course, defendant (proprietor of restaurant and confectionery business) could not evade the ordinance by appearing to carry on as a mere subterfuge some other business than that of a public dance house. Ibid. The court observed, however, that there was nothing of that kind present in this case.

uncommon dexterity and agility of the body, . . and any person having possession or care of any building . . . who shall permit any performance of any kind in such building," without first having procured a license for that purpose, shall be liable to a fine of $50 for every offense, has been held to apply to an individual performer (a dancer in that case) who may be hired to help make up an exhibition, and not solely to the proprietor of the place of the performance. Elizabeth v. Lytton (1912) 83 N. J. L. 371, 85 Atl. 341. In this case, the court said that no doubt, under the statute, a license obtained by the proprietor of the place for the entire performance would protect any individual performer, but that a decision with respect to this question was not called for, since no license was applied for by any person for the performance either in whole or in part.

Attention may be called to the case' of People ex rel. Pershing Palace v. Dever (1925) 237 Ill. App. 65, supra, VIII. in which it was held that premises intended to be used as a restaurant, having a total space of 16,000 square feet, but in which dancing is to be permitted as an incident to the restaurant business, the space to be used for dancing in the central portion of the main floor being only 1,500 square feet, is not a "dance hall," within the meaning of clause in Municipal Code of the City of Chicago requiring places to be used as dance halls to comply with certain building regulations as a condition to granting a license, and that the city authorities are not justified in refusing a license to operate the premises as a public place of amusement solely upon the ground that they do not comply with the requirements for dance halls.

2. Cases arising under English statute. The English Statute of 25 Geo. II. chap. 36, § 2, provided that "any house, room, garden, or other place kept for public dancing, music, or other public entertainment of the like kind," in the cities of London and Westminster, or within 20 miles thereof, without a license had for that purpose, should be

deemed a disorderly house or place; and that every person "keeping" such house, etc., without a license therefor, should forfeit the sum of £100 to such person as would sue for the same, and be otherwise punishable as the law directs in the case of disorderly houses. (A more complete statement of the statute may be found in a footnote to Garrett v. Messenger (1867) as reported in L. R. 2 C. P. 583.)

The statute extends to licensed taverns and hotels. Green v. Botheroyd (1828) 3 Car. & P. 471.

A room above the bar of a public house, used for music and dancing every night by those who choose to resort to it, is within the statute, though there is no public invitation to the room. Frailing v. Messenger (1867) 16 L. T. N. S. 494, affirming (1867) 16 L. T. N. S. 332. As observed by M. Smith, J., if the entertainment had been only for the family and friends of the landlord, the decision of the court might have been different.

A room regularly used for public dancing and music is within the statute, although it is not exclusively used for those purposes. Bellis v. Beale (1798) 2 Esp. 592 (music and dancing in tea room at tavern); Gregory v. Tuffs (1833) 6 Car. & P. 271; Gregory v. Tavernor (1833) 6 Car. & P. 281 (music and dancing in room at one end of which a bar was maintained); Marks v. Benjamin (1839) 5 Mees. & W. 565, 151 Eng. Reprint, 239 (music) and dancing in public house). See also Green v. Botheroyd, supra, and Hall v. Green (1853) 9 Exch. 247, 156 Eng. Reprint, 106.

But the mere accidental or оссаsional use of a room for either dancing or music, or both, is not within the statute. Gregory v. Tuffs (1833) 6 Car. & P. 271, supra; Gregory v. Tavernor (1833) 6 Car. & P. 281, supra; Marks v. Benjamin (1839) 5 Mees. & W. 565, 151 Eng. Reprint, 239, supra. (Compare the following cases, as set out infra: Quaglieni Matthews, and Fay v. Bignell.)

V.

And the temporary use of a room in a public house for the purpose of dancing, on a particular festival or occasion (such as the Jewish Pass