-whether rinking to the accompaniment of music is in itself "dancing," within the meaning of the statute. The judges differed on this question, no decision being necessary.

So,

It is no defense to say that the company frequenting the performances was respectable. Green v. Botheroyd (1828) 3 Car. & P. 471, supra. also, it has been held that the statute applies to a room kept for public dancing or music without a license, though no disorderly or improper conduct is allowed in the room. Rex v. Wolfe (1849) 3 Cox, C. C. 578.

If a room be continually used for music and dancing, it will be for the jury to say whether it is not kept for those purposes. Gregory v. Tavernor (1833) 6 Car. & P. 281, supra. And where a public house is let to persons who sell tickets, and receive money for admission at the door, for the privilege of dancing therein, though there is no direct evidence that the owner has knowledge of the practice indulged in by lessees, it is for the jury to say whether the owner has knowledge of the practice, and, if so, whether it is not kept by him for that purpose. Marks v. Benjamin (1839) 5 Mees. & W. 565, 151 Eng. Reprint, 239, supra. In this case, it was said by Parke, B., that a much less number of instances may be sufficient to render the owner of a public house liable for a keeping without a license than would be necessary in the case of the owner of a private house, in that a private house is kept for purposes of occupation, while a public house is kept for purposes of entertainment. As to who is person keeping room without a license, and therefore liable to the penalties of the statute, see also the cases of Rex v. Wolfe (1849) 3 Cox, C. C. 578 (holding, where A had his name over the door of the house as a "free vintner,” and B contracted to supply the place with provisions, both being occasionally seen there, that there was no evidence that they were persons having the management, etc., of the place); Jacobs v. Bryer (1851) 17 L. T. 203 (holding, where A appeared publicly as the sole pro prietor, and B was the superintendent 48 A.L.R.-12.

of the decorations, and C was the musical director, and D and E superintended other departments, that B, C, D, and E were not liable to the penalties imposed by the statute, unless, besides such superintendence of the different departments, they or any of them appeared, acted, or behaved as master, or as the persons having the care or management of the house).

i. Cases unclassified.

Where a license to conduct a house or room for public dancing, etc., contains no limitation as to time, but the licensee, understanding it to be for a year, comes at the end of the year and takes out another license for a year, he must be taken to have surrendered the first, and it is no longer in force. Hoffman v. Bond (1875) 32 L. T. N. S. 775 (holding defendant properly convicted where second license, which was for one year, had terminated, and a renewal thereof had been refused for sufficient reasons).

For construction of statute as limiting authority of town council to licensing for single performance, and not for a whole year, see Standard Athletic Club v. Cushing (1909) 30 R. I. 208, 74 Atl. 719.

XI. Sunday laws, with respect to dancing, etc.

a. Validity.

1. Generally; in exercise of police

power.

A statute making any person guilty of a misdemeanor, "who on Sunday, keeps open or maintains, or who aids in opening and maintaining, any dance hall, dance house, provided, however, that the provisions of this section shall not apply to such dancing halls or pavilions as are maintained or conducted in public parks or playgrounds where no admission is charged, and where good order is maintained, and where no intoxicating liquors are sold," is within the police power of the state. Re Klune (1925) 74 Mont. 332, 240 Pac. 286 (in which the point of constitutionality was neither raised nor discussed, however); State v. Loomis (1925) 75 Mont. 88, 242 Pac. 344 (in which the

constitutionality of the statute was raised and fully considered).

An ordinance making it unlawful to keep open any public dance hall on Sunday is a valid exercise of the police power delegated to cities by the California Constitution. Re Sumida (1918) 177 Cal. 388, 170 Pac. 823.

See also, in support of the rule that, in the exercise of the police power of the state, public dance halls may be forbidden to open and public dancing prohibited on Sunday, the following cases: Siddons v. Edmonston (1914) 42 App. D. C. 459; Re Hull (1910) 18 Idaho, 475, 30 L.R.A. (N.S.) 465, 110 Pac. 256; State v. Penny (1910) 42 Mont. 118, 31 L.R.A. (N.S.) 1155, 111 Pac. 727.

The state, in the exercise of its police power, may forbid the operation and maintenance of dance halls and dance houses on Sunday, though the particular dance hall in question is patronized by some of the best people in the community, good order is maintained at all times, objectionable characters are excluded, and no intoxicating liquors are sold, since the police. power is not restricted to the regulation or supervision of what is offensive, disorderly, or unsanitary, but embraces regulation designed to promote the public convenience and the peace and good order of society. State v. Loomis (Mont.) supra.

The state may prescribe the territorial limits within which dance houses or dance halls may be opened on Sunday, it being elementary that the police power may be exerted by restricting the territorial limits within which certain businesses may be conducted or certain privileges enjoyed. Ibid.

In permitting the operation on Sunday of "such dancing halls or pavilions as are maintained or conducted in public parks or playgrounds where no admission is charged, and where good order is maintained, and where no intoxicating liquors are sold," while forbidding their operation and maintenance elsewhere, on Sunday, it was competent for the legislature to require that admission be free, to the end that the public generally, or such

portion as chose to take advantage of the privilege, might have the opportunity to observe the conduct of those engaged in the pastime, and exert a restraining influence upon any attempt at disorder. Ibid. (dicta).

2. Due process.

An ordinance making it unlawful to keep open any public dance hall on Sunday cannot be condemned as invalid on the ground that it is an unlawful or unauthorized invasion of the right of property, or upon the ground that it is a taking of property without due process of law. Re Sumida (1918) 177 Cal. 388, 170 Pac. 823.

In Montreal v. Maloney (1922) 39 Can. Crim. Cas. 91, 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 was held invalid, as being in violation of acquired rights. (The decision, in this respect, 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.)

3. Equal protection; classification.

Generally, for constitutionality of discrimination by Sunday law or ordinance as between different kinds of business, see annotation in 46 A.L.R. 290 [Sunday, § 3], and annotation therein referred to in 8 A.L.R. 566.

The state may prescribe the territorial limits within which dance houses or dance halls may be opened on Sunday, it being elementary that the police power may be exerted by restricting the territorial limits within which certain businesses may be conducted or certain privileges enjoyed. State v. Loomis (1925) 75 Mont. 88, 242 Pac. 344.

A statute forbidding the operation. and maintenance of dance halls or dance houses on Sunday, but excepting from the operation of the statute "such dancing halls and pavilions as are maintained or conducted in public parks or playgrounds where no ad

mission is charged, and where good order is maintained, and where no intoxicating liquors are sold," does not discriminate between subjects of the same class, but creates two distinct classes, based upon location, the legislature having before it presumably ample evidence to justify the distinction made. Ibid.

An ordinance making it unlawful to keep open any public dance hall on Sunday, while excepting from the operation of the ordinance bona fide hotels, boarding houses, lodging houses, restaurants, etc., is not invalid as being special, discriminatory, or class legislation, or as depriving persons of the equal protection of the law. Re Sumida (1918) 177 Cal. 388, 170 Pac. 823.

The mere fact that a statute forbidding the operation of dance halls or dance houses on Sunday, except as otherwise provided, discriminates between theaters and playhouses, on the one hand, and dance halls or dance houses, on the other, will not condemn it, since discrimination is the very essence of classification, and is not objectionable unless founded on distinctions which the courts are compelled to pronounce unreasonable or purely fictitious. State v. Loomis (Mont.) supra.

Whether the classification made by the act is reasonable was a matter for legislative determination in the first instance, and every reasonable presumption will be indulged in favor of the validity of the act; in other words, it will be presumed that the classification is reasonable, and defendant, in a prosecution for violation of the statute, must assume the burden of showing that there is not any admissible hypothesis upon which it can be justified. Ibid.

That theaters, playhouses, and dance houses have been previously grouped in one class by the legislature, the operation and maintenance of all having been forbidden on Sunday, does not bind successive legislative assemblies; assuming that at an earlier period the surrounding circumstances justified fully the association of theaters and playhouses with dance houses, if, in

fact, the character of entertainments given in theaters and playhouses on Sundays at such earlier period, or the manner in which those places were conducted, have changed to such an extent that the evil sought to be remedied in the first instance has disappeared altogether, or has been mitigated, whereas no such change has occurred in the manner in which dance houses or dance halls are conducted, this would justify the classification, and the existence of facts sufficient to warrant the change will be presumed. Ibid. Said the court: "It is always competent for the legislature to recognize different degrees of the possible evil tendencies inherent in different forms of amusement or entertainment, and to give effect thereto in classifying the subjects for the purpose of appropriate regulation, without being open to the charge that the act is arbitrary and unwarranted. . . A very wide latitude is permitted in making selections for classification, and necessarily so, for it is obvious that things may have diverse qualities and belong to the same class, or they may have many characteristics in common and be cast into different classes."

Although theaters and playhouses are still proper subjects of police regulation, the fact that the state no longer sees fit to exert its authority in that respect does not militate against its right to regulate other subjects clearly within the range of its police. power, as by forbidding the operation. and maintenance of dance houses, halls, etc., on Sunday, it being a principle that the equal protection clause of the 14th Amendment does not require that state laws shall be perfect, nor that the entire field of appropriate legislation shall be covered in a single enactment. Ibid.

Since laws are not judged by theoretical standards, but by concrete conditions which induce them, before defendant, in a prosecution for violation of the statute, can insist that the act is unconstitutional, he must be able to demonstrate that there are not any valid reasons for the application of Sunday-observance regulations to

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dance houses and dance halls which do not apply equally to theaters and playhouses; failing in this, or failing to satisfy beyond a reasonable doubt that that statute is arbitrary and unreasonable, the test by which the validity of the act must be determined, -the statute will not be declared unconstitutional on those grounds. Ibid.

4. Authority of municipality; statute, etc., construed, as authorizing municipality to legislate.

Generally, for power of municipal corporation to legislate as to Sunday in 29 observance, see annotations A.L.R. 397, and 37 A.L.R. 575 [Sunday, § 3].

Provision in city ordinance providing that no dancing shall be permitted on Sunday at any public dancing school 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 Geyer v. Buck (1919) 175 N. Y. Supp. 613, in which the court said that it fully concurred with the decision in that case.

Under statutes authorizing cities to prevent and suppress breaches of the peace and disorderly assemblages, to preserve public peace and good order, and to make such ordinances as are necessary for the good government, order, etc., of the municipality and its inhabitants, a city may pass an ordinance making it unlawful to maintain any dancing hall or pavilion on Sunday. Schumacker v. Little Falls Twp. (1918) 92 N. J. L. 106, 108 Atl. 113.

So, also, it has been held that an ordinance making it unlawful to keep open any public dance hall on Sunday is a valid exercise of the police power delegated to cities by the California Constitution. Re Sumida (1918) 177 Cal. 388, 170 Pac. 823.

The Parliament of Canada having lawfully assumed to legislate on the

5. Other cases.

b. Construction and application.

Generally, for sports, games, or amusements as work, labor, avocation, business, or the like, within Sunday laws, see annotation in 4 A.L.R. 382 [Sunday, § 11].

A statute making any person guilty of a misdemeanor, "who on Sunday keeps open or maintains, or who aids in opening or maintaining, any dance hall, dance house, or any other place of amusement where any intoxicating liquors are . . provided, sold or dispensed however, that the provisions of this section shall not apply to such dancing halls or pavilions as are maintained or conducted in public parks or playno admission is grounds where charged, and where good order is maintained, and where no intoxicating liquors are sold," has been held to

prohibit the operation on Sunday of a dance hall not of the character of those mentioned in the proviso, regardless of the fact that no intoxicating liquors are sold there, in view of the history of Sunday observance laws in that state. Re Klune (1925) 74 Mont. 332, 240 Pac. 286. Stating that the use of the word "other" was unhappy, and that the statute was clumsily worded, it was said that, in view of the history of the act, whereby succeeding statutes had long forbidden the operation of dance houses on Sunday, it could not be believed that by the use of the word "other" the legislature intended to change so materially the long-existing policy underlying the Sunday observance law.

It seems that the letting of a dance hall or ballroom on Sundays to a private club, etc., not open to the public and to which no admission fee is charged, is not in violation of a statute prohibiting public sports, exercises, and shows on Sunday. See Suesskind v. Bingham (1908) 125 App. Div. 787, 110 N. Y. Supp. 213.

Dancing on Sunday to the accompaniment of a piano and two violins, or permitting others to dance, in a hall hired for that purpose, not as an exhibition or performance, but merely for the amusement of the dancers, is not a violation of the statute which, under the heading "Theatricals and Other Performances," forbids the "performance of any tragedy, comedy, opera, ballet, farce, negro minstrelsy, negro or other dancing, wrestling, boxing with or without gloves, sparring contest, trial of strength or any part or parts thereof, or any circus, equestrian, or dramatic performance or exercise, or any performance or exercise of jugglers, acrobats, club performances, or rope dancers." Re Allen (1901) 34 Misc. 698, 70 N. Y. Supp. 1017, 15 N. Y. Crim. Rep. 453. Said the court: "The heading of the section is "Theatrical and Other Performances,' which indicates what the legislature considered to be the subject-matter of the section. The only reference to dancing in the section is in the words 'negro or other dancing,' which evidently does not refer to a

case where persons dance for their own amusement, but to an exhibition or performance of dancing. Moreover, all the acts forbidden by the section are those which invariably, or from their nature, are performed only for the purposes of an exhibition or performance, and which require a stage of some kind, and are usually performed for the entertainment of other persons, and for pay. If dancing of every kind were covered by the statute, it would be unlawful for persons to dance in their own houses for their own amusement on Sunday." It was further said that the severe penalties imposed by the same section for a violation thereof indicated that the legislature could not have intended that the section should apply to the case of persons dancing for their own amusement, and that the provision for the revocation of the license of the owner of the premises is certainly not applicable to those cases in which persons dance for their own amusement in places for which no license is required.

Entertainments consisting of music, dancing, and feats of a professional contortionist, are not "sporting," or "common labor," within the meaning of a statute prohibiting the doing of certain things on Sunday. Wirth v. Calhoun (1902) 64 Neb. 316, 89 N. W. 785. This case involved the validity of a contract to perform each day of the week, including Sunday; in addition to holding that the performances were not forbidden by the Sunday law, so as to invalidate the contract upon that ground, the court refused to entertain the suggestion that the contract should be held invalid as being contrary to public policy, saying that by the statute the state had defined its policy in regard to the proper observance of Sunday, and that it was not within the province of the court to add to the restrictions thus imposed.

XII. Miscellaneous.

An ordinance for the regulation of public dance halls is not invalid because it confers power upon a police officer (of designated rank) to stop a dance and cause the place where it is