People Ex Rel. Duryea v. . Wilber

Chase, J.: A public dancing academy as defined by the statute is a room! or place. It 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 a® a private house. Any room or place in the city of New York in which dancing is taught for a. consideration to all applicants, pursuant to public notice of any kind, comes within the statutory definition. The license required is for the academy. If the place is licensed the act does not prescribe any moral or other qualities or qualifications for the teacher or the persons to be taught, or otherwise prescribe any moral or other standard or guide in the conduct of the dance. It is apparent, therefore, that the police power has not been exercised to preserve the morals of the city. The purpose of the act so far as appears from an inspection of it is to protect persons, who are taught dancing from being taught in an unsafe, or unhealthy room or place. That clause of the statute which expressly prohibits a license being issued is as follows: “ No-license 'Shall be issued unless the place for which it is issued *335 complies with all laws, ordinances, rules and the provisions of any building -code applicable thereto, and is a safe and proper place for the purpose for which it shall be used, properly ventilated and supplied with sufficient toilet .conveniences.” The laws, ordinances, rules and provisions of the Building Code are compulsory apart from the provisions of the statute under consideration. The provisions, of the Building Code are ample to enforce the physical safety of any place as against fire or collapse, and we do not understand that the words “ proper place ” are intended to refer to anything other than physical conditions. The only other object expressly .stated in the statute, so far as we have referred to it, is to make sure that' the rooms or places where dancing is taught are properly ventilated and supplied with sufficient toilet conveniences. The charter of the city of Hew York provides that it shall “ be the duty of every owner . . . and person interested, and of every lessee, tenant, and occupant of, or in any place, . . . room, . . . building . . . and thing in said city, ... to keep, place and preserve the same and every part, and the sewerage, drainage and ventilation thereof in such condition and to conduct the same in such manner that it shall not ... he dangerous or prejudicial to life or health (Charter City of New York, section 1201 [L. 1901, ch. 466]; Ordinances of the City of New York [Sanitary Code, sec. 10]). “ Ho owner or lessee of any building or any part thereof shall lease, or let or hire out, or allow the same or any portion thereof to be occupied by any person . . . except when said building or such parts thereof are sufficiently lighted, ventilated, provided and accommodated, and are in all respects in that condition of cleanliness and wholesomeness for which this, code or any law of this State provides, or in which they or either of them require any such premises to be kept.” (Ordinances of the City of New York [Sanitary Code, sec. 17]). *336 It may be stated as a general principle that legislation is valid which has for its object the promotion of the public health, safety, morals, convenience and general welfare or the prevention of fraud or immorality. (People ex rel. Armstrong v. Warden, etc., 183 N. Y. 223; People ex rel. Wineburgh Adv. Co. v. Murphy, 195 N. Y. 126). An individual has the right to carry on any lawful business in a lawful way. The maintenance of a dancing school is a lawful business, and a person who teaches dancing can only be required to obtain a license for the place in which dancing is taught, when such license is required for the purpose of protecting the interests of the municipality in one of the ways recognized as within the lawful exercise of the police power. An examination of the city charter and the ordinances passed pursuant to such charter, some of which we have mentioned, shows beyond controversy that a license is not required for the rooms or places in which dancing is taught in the city of New York to preserve public health and safety. Ample provision having been made therefor by the general provisions in the charter and ordinances, the special exercise of the police power is unnecessary and unwarranted, so far as it seeks simply to carry out the general provisions thus enacted in both charter and ordinances, and which are therein made 'compulsory. The act under consideration, so far as we have referred to it, can only be justified, therefore, upon the grounds that are the basis for requiring licenses for theaters and places of public amusement. Licenses have been required for theaters- and places of public amusement in this State for nearly a century. (Wallack v. Mayor, etc. of N. Y., 3 Hun, 84). The tendency of such places is to attract a crowd, and it is said that they require more or less of governmental supervision and regulation. (Mayor, etc. of N. Y. v. Eden Musee American Co., 102 N. Y. 593). A statute or ordinance requiring a license for a place should *337 be sustained where the place and business conducted therein are such as tend to draw crowds that require or may require police surveillance; and where a recorded statement or list of such places is desirable to aid the police department in their duty to prevent the business therein being conducted in a manner injurious to the public welfare. Police regulations must not be unreasonable nor must they make unjust discrimination against individuals or classes. (Black’s Constitutional Law, sec. 371). By the act in question a room or place may be occupied for dancing on Monday without a license being required therefor, and on Tuesday, if the same persons are engaged in the same dance, in the same room or place, under the instruction of a teacher, such room or place must be licensed or the statute is violated. It is contended that a person who conducts a public dancing school for minors should be required to obtain a license therefor and that as a condition precedent to obtain the license he should satisfy the licensing authorities as to his good character. That is not the purpose of the act in question. The act in question relates to rooms and places where dancing is taught, and arbitrarily selects such places out of all the places where dancing is engaged in and separately classifies such rooms and places at such times as of a character requiring the exercise of the police power of the State, and leaves unaffected by the act all rooms and places where public dancing is indulged in without the aid of an instructor. It does not appear whether the patrons of dancing academies are minors or adults except that the information states that the relator at his academy taught children in the afternoon and adults in the forenoon and evening. Even if children are instructed at dancing academies or schools the rooms or places are not for that reason in greater danger of becoming the scene of disorder and a menace to the public wel *338 fare. If the act under consideration otherwise improperly discriminates against public dancing academies as therein defined,, then the fact that minors among others attend such academies does not make the act a proper exercise of the police power. We do not mean to deny that the police power can be exercised in a proper case by an act which discriminates against minors or places used wholly by minors, but the act under consideration should not be held valid simply because minors may attend in the rooms or places mentioned. If this act is to be sustained because minors among others attend public dancing academies, then ¡a special license can be required for any store or theater owned by persons whose designation is wholly arbitrary and which would otherwise amount to an illegal discrimination, if minors among others are to patronize it, and if perchance there is some alleged reason for the license that in some way, more or less remote, affects the health, morals or comfort of minors who may so patronize it. The act affects adults, as well as minors. It is general in its terms and does not purport to be intended as a protection to minors. The discrimination is based upon a ground that is without reason. There is nothing in the fact of teaching dancing as distinguished from dancing without a teacher that has any injurious effect upon or relation to the morals, health and good order of a community. A discrimination that is made in the exercise of the police power must be based upon some reason. It is true that the reason may not always be a satisfactory one, but it must be a plausible one and have some substantial basis on which to rest. There has not been presented to us a reason why a license should be required of a place or room where dancing is taught that does not apply with even greater force to rooms and places in which dancing is generally indulged in without the aid of a teacher. The act in our judgment is arbitrary, and unjustly discriminates against public dancing academies as defined therein and so far as it requires a license as therein provided is void. *339 The act is not a revenue measure and we have not in anyway considered the authority of the legislature to require a license for dancing academies as a means of obtaining revenue. The orders appealed from should be reversed and the relator discharged from custody.