and the like, and unless there is some specific limitation on the legislature, such provisions are constitutional: 1 Dillon on Mun. Corp., 3d ed., secs. 357, 360, and cases there cited. Under proper provisions in the charter, cities may require theaters and places of amusement to obtain a license before giving performances, and the restrictions under which such licenses are granted are not confined to fixing the time and place of exhibitions, or other ordinary police regulations, but the municipality may exercise the taxing power as a means to effect the object of regulating such places of amusement: Hodges v. Mayor, 2 Humph. 61; Boston v. Schaffer, 9 Pick. 415; and the exercise of such power, it is said in the latter case, is peculiarly proper in these cases, as towns are put to the expense of preserving order in such places, and should be indemnified therefor. The fact that money realized by a license, or fine for failure to pay the license, is disposed of by payment to a society for the reformation of juvenile offenders does not render the ordinance levying the license void, on the ground that it is a tax of an ordinary occupation for the benefit of a private society; the municipality has power to require the license fee, which becomes its property, and it may dispose thereof as seems proper: Wallack v. Mayor, 5 Thomp. & C. 310. A statute requiring a license for public shows does not apply to dancing-schools, though an admission fee is charged: Commonwealth v. Gee, 6 Cush. 174; nor will a license to keep a theater protect an exhibition of feats of legerdemain, or sleight of hand: Jacko v. State, 22 Ala. 73. RIGHTS OF SPECTATORS OR PERSONS ATTENDING THEATERS OR PLACES OF AMUSEMENT.-This head may be considered with regard to the rights of persons to admission, and being admitted, as to their right to a seat, or to a par ticular seat; and secondly, with regard to the conduct of the audience. Rights to Admission and to Seat-Rights of Ticket-holders.-The right of a ticket-holder at a place of amusement or theater is generally held to be a simple license to be present and to witness the performance, and though the question has not often come into court for adjudication, the result of the decisions seems to be that the license is revocable, and subject to the control of the proprietor. The earliest case, Tayler v. Waters, 7 Taunt. 373, does not seem to have so held. This was an action against the door-keeper of an opera-house for denying admission to plaintiff, who was the holder of a ticket purporting to give him entrance for twenty-one years. Plaintiff became the holder of the ticket in 1799, and was not interrupted in his right of entrance till 1814, when he was denied admission. The court held that the ticket was a license irrevocable to permit the plaintiff to enjoy certain privileges, and that he was entitled to exercise the license, and to maintain the action for damages arising from his exclusion from the opera-house. But the doctrine above set out was supplanted, and the decision in Tayler v. Waters overruled by Wood v. Leadbitter, 13 Mee. & W. 387. In the latter case the owner of land on which was a stand for the spectators at a horse-race sold a ticket to plaintiff to enter and witness the race. Before the race was over, without misconduct on the part of the plaintiff, or tendering him back the admissionfee, the owner ordered him to leave the premises, and afterwards removed aim; it was held that his ticket was a mere license which was revocable, the court being of opinion that although a license founded upon and necessary to the enjoyment of a grant would be sustained by the interest given, yet this was only true where there was a valid grant, and did not apply to an oral license, which would be equivalent, if executed, to an estate or easement in the land to which it related; that as the right which the ticket purported to give, of entering on the race-course and remaining there during the con tinuance of the races, was virtually an easement which could not be granted without a deed, the license was not sustained by an interest, and might consequently be revoked at any time. The principal case follows and is based on this decision, as is also the case of Burton v. Sherpf, 1 Allen, 133, where the principal case is cited. The court, in the latter case, say that "the sale of a ticket of admission to a concert is only a revocable license to the purchaser to enter the building in which it is given, and to attend the perform. ance, and if revoked before the performance has commenced, and before he has taken his seat to which the ticket entitled him, and he remains therein after notice of the revocation, and refuses to depart upon request, he becomes a trespasser, and may be removed by the use of force necessary for that purpose; and his only remedy therefor is by an action upon the contract." In the case of Drew v. Peer, 93 Pa. St. 236, a negro and his wife, who had purchased tickets of admission, and reserved seats in defendant's theater, were refused admission, and forcibly ejected. Having thereafter brought an action on the case for damages, it was held that such action was in the proper form to recover the price of the tickets, and the loss occasioned the plaintiff by his wife's illness, including all expenses which he was put to in consequence thereof. In McGoverny v. Staples, 7 Alb. L. J. 219, however; it was held that an action for assault and battery would lie for expulsion from fairgrounds. The plaintiff had paid the regular entrance-fee to the grounds, and had then taken a seat on a platform which had been reserved, and on which an extra charge had been made. The evidence showed that plaintiff did not know of the extra charge, and failed to show a demand on him therefor; and the court held the plaintiff was rightfully in such place if he did not know of such charge, and until demand made of him he could not be removed. 1. Seats. If the proprietor of a theater advertises the price of reserved seats for certain performances, and then refuses to sell certain seats demanded, though not already sold, he is not liable to an action therefor: Pearce v. Spaulding, 12 Mo. App. 141. A visitor at a theater or other place of amusement is entitled to a seat. His right, however, depends to some extent on the character of his ticket. If for a reserved seat, he has a right to that particular seat. If not reserved, then to any one he may find unoccupied, and which had not previously been sold to another: Commonwealth v. Powell, 30 Leg. Int. 100; S. C., 10 Phila. 180. So in Drew v. Peer, 93 Pa. St. 238, it is held that persons, as purchasers and holders of tickets for particular seats, have more than a mere revocable license; "their right being more in the nature of a lease, entitling them to peaceable ingress and egress, and exclusive possession of the designated seats during the performance" for which the tickets call. The neglect of the proprietor of a theater to mark a seat "taken" can give a stranger no right to a seat which had already been purchased by a third party; and if one taking a seat so sold is informed that it has been sold, and is offered a seat equally good, which he refuses to take, force in removing him from the reserved seat is not an assault or battery: Commonwealth v. Powell, supra. An act passed by the legislative assembly of the District of Columbia, providing, in substance, "that no theater proprietor shall, after the theater is open for reception of spectators, sell tickets so as to reserve particular seats, or to mark or describe as reserved or taken any seats which have not been reserved by sale of the tickets therefor previous to the opening of the exhibition or commencement of the performance," is unconstitutional, and amounts to vexatious and unlawful interference with property rights: District of Columbia v. Saville, 1 McArthur, 581. If persons are told on entering a theater there is room, when in fact there is not, their proper course is to Nov. 1858.] MCCREA V. MARSH. 749 leave the theater and demand a return of their money; and such persons are not justified in getting into a private box in the theater therefor, and if they do, the proprietor may remove them, using necessary force therefor: Lewis v. Arnold, 4 Car. & P. 354. Civil Rights Bill.-Congress attempted to regulate, among other things, the right of equal enjoyment by all persons, of theaters and places of amusement, and in pursuance of the thirteenth and fourteenth amendments to the federal constitution passed the civil rights bill, which provided "that all persons shall be entitled to full and equal enjoyment of the accommodations, advantages, and facilities and privileges of inns, public conveyances, theaters, and applicable alike to citizens and other places of public amusement, of every race and color, regardless of any previous condition of servitude: But The states might pass such laws, but if a ticket to a theater is but a revocable license, they would be of little effect; as, if the theater proprietor desired to exclude colored persons he might do so merely by revoking the license, and it would be impossible to determine whether it was revoked by reason of "race, color, or previous condition of servitude:" See Civil Rights Bill, 1 Hughes, 541, Drew v. Peer, 93 Pa. St. 238; and the principal case. A similar rule is Conduct of Audience.-Chief Justice Tindal said, in Gregory v. Brunswick, 1 Car. & K. 23: "The law on this subject lies in a narrow compass. There is no doubt that the public who go to a theater have the right to express their free and unbiased opinions of the merits of the performers who appear upon the stage. At the same time, parties have no right to go to the theater by a preconcerted plan, to make such a noise that an actor, without any judgment being formed on his performance, should be driven from the stage by such a scheme, probably concocted for an unworthy purpose." mentioned in Bishop's Criminal Law, vol. 2, 7th ed., sec. 308, and notes; where the language of Bushe, C. J., in Rex v. Forbes, Craw. & D. 157, is quoted as follows: "The rights of an audience at a theater are perfectly well defined. They may cry down a play or other performance which they dislike, or they may hoot or hiss the actors who depend upon their approbation or their caprice. Even that privilege, however, is confined within its limits. They must not break the peace or act in such a manner as has a tendency to excite terror or disturbance; their censure or approbation, although it may be noisy, must not be riotous. That censure or approbation must be the expression of the feelings of the moment; for if it is premeditated by a number of persons confederated beforehand to cry down even a performance or an actor, it becomes criminal. Such are the limits of the privilege of an audience, even as to actors and authors." In Clifford v. Brandon, 2 Camp. 358, it was held that spectators had no right to create a disturbance because the prices of admission are exorbitant, and in this regard Lord Mansfield "Theaters are not absolute necessaries of life, and any person may says: stay away who does not approve of the manner in which they are managed. People If the prices of admission are unreasonable, the evil will cure itself. will not go; and the proprietors will be ruined unless they lower their demands. But the proprietors of a theater have a right to manage their property in their own way, and to fix what prices of admission they think most to their own advantage." There does not seem to have been any decision of the American courts upon this subject. CONTRACTS BETWEEN ACTORS AND MANAGERS, EFFECT AND ENFORCEMENT or.-The question has often come before the courts as to how far an actor can be compelled to perform his contract to play for a season. Story says that equity will not indirectly enforce specific performance of a contract for per sonal services, but that a suit at law for damages on a broken contract to perform will lie: 2 Story's Eq. Jur., 12th ed., sec. 153, and notes. It was formerly held that in cases of contracts for theatrical or operatic performances a court of equity, having no power to compel performance of acts required, would not interfere by injunction; Sanquirico v. Beneditti, 1 Barb. 315; Burton v. Marshall, 4 Gill, 487. The English authorities seem to hold that where there is a contract to perform, which contains a negative stipulation not to perform elsewhere, the courts will restrain an actor from performing at another theater during the existence of the first engagement. Kemble v. Kean, 6 Sim. 333, and Kimberly v. Jennys, Id. 340, decide to the contrary; but these cases have been overruled. A leading English case is Lumley v. Wagner, 1 De G. M. & G. 604. Defendant having entered into a contract to sing for a period of three months, engaging "not to use her talents at any other theater" without plaintiff's consent, broke the contract, and engaged to sing at another theater. An injunction to restrain her from singing at the latter theater was asked for and granted. The case of Montague v. Flockton, L. R. 16 Eq. 189, is a much stronger case. An actor accepted an engagement to perform at plaintiff's theater. The contract contained no negative stipula tion, but the court granted an injunction to restrain the actor from performing at another theater, saying "an engagement to perform for nine months at theater A, is a contract not to perform at theater B, or at any other theater whatever." Fechter v. Montgomery, 33 Beav. 22, was a case in which there was a negative stipulation, but as the manager had by contract agreed to cast defendant for a play, and in failing to do so had broken his contract, the court refused, of course, to enforce it against the actor. From the case of Montague v. Flockton, supra, it seems that the courts will even allow relief though the contract of service or employment contains no negative or restrictive clause, if such negative element may be fairly presumed or implied. Lord St. Leonard, in Lumley v. Wagner, supra, says: "These cases consist, not of two correlative acts to be done, one by the plaintiff, and the other by the defendant, but of an act to be done by the defendant alone, to which is superadded a negative stipulation on her part to abstain from the commission of any act which will break in upon her affirmative covenant, the one being ancillary to, concurrent and operating together with, the other. The agreement to sing for the plaintiff during three months at his theater, and during that time not to sing for anybody else, is not a correlative, it is in effect one contract. The engagement to perform for three months at one theater must necessarily exclude the right to perform at the same time at another theater." See also Webster v. Dillon, 3 Jur., N. S., 432. The earlier American cases held that under a contract for theatrical or operatic performances a court of equity, having no power to compel the performance of the acts, would not interfere by injunction: Sanquirico v. Beneditti, 1 Barb. 315; Burton v. Marshall, 4 Gill, 487; Hamblin v. Dinneford, 2 Edw. Ch. 529. The cases are conflicting, but the latter cases hold to the doctrine that where the contract contains a negative clause, the relief by injunction should be granted: 2 High on Injunctions, 2d ed., secs. 1163, 1164. Where damages can be obtained, which will be adequate, such relief will of course be denied; but, as we said in Willis v. Hayes, 11 Abb. Pr., N. S., 167, "where a manager is deserted in the middle of a season, a resort to an action at law for damages must often fail to afford adequate compensation." Where an actor breaks an engagement at one theater and goes over to the rival establishment in the same city, an injunction ought to be granted: Daly v. Smith, 38 N. Y. Super. Ct. 158; Hayes v. Willis, 11 Abb. Pr., N. S. 167; but in Caldwell v. Cline, 8 Mart., N. S., 684, where there was no negative stipulation, an injunction was denied. In Butler v. Galleth, 21 How. Pr. 165, which was an application for an injunction, the agreement being simply to dance at plaintiff's theater, or where he should prescribe, and the contract contained no negative clauses, the court in denying an injunction said: “I am unwilling to hold, and do not think I am bound to hold, where there are no clear and absolute negative stipulations on the part of the party upon the subject, involving in part the exercise of intellectual qualities, and a special case of the impossibility or great difficulty of measuring damages is presented, that the jurisdiction to forbid the violation of such covenants does not exist; but the present case is not one of such a character, and an injunction should be refused." Where no apparent damage could result from performances at another theater, as where that of the contracting manager was not yet built, and would not be for some time, an injunction was refused: De Polo v. Sohlke, 7 Robt. 280. So where an opera-singer had engaged to sing at a certain theater, and not elsewhere, and before the time of performance made an engagement to go to Havana to perform, and intended to violate the contract, the court would not interfere, because there had been no breach of contract, the time for performance of the contract not having arrived: Da Rivafindi ▼. Corsetti, 4 Paige, 264. Breach of Contract by Theatrical Manager.—In Lacy v. Henck, 12 Cin. L. Bul. 209, the following points are ruled: "A mandatory injunction will not be granted to enforce the performance by the lessees and managers of a theater, of a contract for the use of such theater and the services of such manager and subordinates, for the period of one week, in and about the production of a play contracted to be given, for the reason that the supervision of such personal services by the officers of the court would be impracticable. But in such case, where the contract is plain and the proposed breach not disputed, the court will enjoin the defendants from assisting, advertising, or managing any other play, or from putting their theater to any other use than the production of plaintiff's play, during the period covered by the contract." In an action to recover damages for wrongful dismissal of an actress, where the facts were that the plaintiff had agreed to play in a new piece about to be produced, to commence on a certain day and continue for three months, but before the time of performance became ill and was unable to appear on the opening night, and thereafter for some time, it was held that the plaintiff's Inability to perform on the opening and early performances went to the root of the contract, and justified the defendants in rescinding it: Poussard v. Spiers, L. R. 1 Q. B. Div. 410. LITERARY PROPERTY IN PLAYS AND LAW FOR PLAYWRIGHTS.-For a full discussion of the law concerning literary property, and rights under copyright, see Morgan on Literature, and Drone on Copyright. The space for this note will only permit a general discussion of the law concerning play |