40 Pa. Super. 50 | Pa. Super. Ct. | 1909
Opinion by
This case involves the validity of an ordinance of the borough of Mahanoy City, ordaining “That no theatrical exhibition, concert, show, circus, jugglery, or other exhibition shall be held, exhibited or given, without a license first had and obtained from the chief burgess.” The second section of the ordinance authorizes the chief burgess to issue licenses for such theatrical and other exhibitions, upon the payment to him of a license fee, which in case of theatrical exhibitions is fixed at $3.00 per day. It was admitted at the trial in the court below that the defendant had given various theatrical exhibitions, but she based her defense upon the ground that the ordinance was invalid. The borough recovered a judgment and the defendant appeals.
The defendant offered evidence as to the number of theatrical performances given in her theater in each year, and the number of such performances given in the entire borough in each year, and, in connection with this offer of evidence, offered to prove that the borough expended no money in the exercise of its police power, in or about the conduct of such exhibitions or the supervision thereof, and that the amount of the license fee, under the ordinance, is out of all proportion to the amount expended by the borough in the exercise of any lawful police power in relation to the said business. The offer of this evidence was made in various forms, and the rejection thereof is the foundation of the several specifications of error. The contention of the appellant is that the power of a borough to impose a license fee is limited to the amount which will reimburse it for the cost of reasonable police supervision of the various theatrical performances, and in support of this contention she cites the decisions in those cases in which the power of a borough to impose a charge upon telegraph and telephone poles in the streets has been considered and defined.
The general borough law of April 3, 1851, P. L. 320, sec. 2, granted to boroughs the power “to regulate and prohibit the exhibition of plays, shows, montebanks, juggleries and all other exhibitions within the same.” The Act of May 5, 1876, P. L. 112, expressly conferred upon boroughs “the right and author
The power of a borough to enact ordinances relating to theatrical entertainments bears a much closer relation to that which it possesses over hawking and peddling, than to that which it may exercise over the poles of a telegraph company. The act of April 3,1851, conferred upon boroughs authority to "make all needful regulations respecting, .... the hawking and peddling of market produce and other articles in the borough.” Under this provision it was held that an ordinance which fixed the price of a license for hawking and peddling so high as to make, as it was evidently intended to make, the ordinance amount to prohibition, might be sustained as a police regulation, intended to destroy a business that was regarded as injurious, if it bore upon all persons impartially: Sayre Borough v. Phillips, 148 Pa. 482. The grant to the various boroughs of
The judgment is affirmed.