public are required to pay higher prices for Cities and Villages Act given authority "to the same accommodations than others, is an invasion of rights guaranteed by the state and federal Constitutions. [1] It was said in Cecil v. Green, 161 Ill. 265, 43 N. E. 1105, 32 L. R. A. 566, that theaters have from the earliest history of the state been subject to police regulation, and the power to license and regulate them has been conferred upon cities subject to no other limitations than those imposed by the Constitution upon the General Assembly itself, so that unless the Constitution forbids the regulation imposed by the city of Chicago the ordinance is a valid exercise of legislative power. In Metropolis Theater Co. v. City of Chicago, 246 Ill. 20, 92 N. E. 597, the doctrine of Cecil v. Green was repeated, and it was held that the whole legislative power for the regulation of theaters had been conferred upon municipalities; and this was the doctrine of Block v. City of Chicago, 239 Ill. 251, 87 N. E. 1011, 130 Am. St. Rep. 219, and Nahser v. City of Chicago, 271 Ill. 288, 111 N. E. 119, L. R. A. 1916D, 95. Police power was defined by Chief Justice Shaw in Commonwealth v. Alger, 7 Cush. (Mass.) 84, as: license, tax, regulate, suppress and prohibit hawkers, peddlers, pawnbrokers, keepers of ordinaries, theatricals and other exhibitions, shows and amusements, and to revoke such license at pleasure." Under that provision the city of Chicago could exercise the entire legislative authority of the state, and unless the relator is protected by the Constitution in the injurious, fraudulent, and discriminatory practice prohibited by the ordinance, the demurrer was improperly sustained. [2-4] Counsel for the appellee object to the ordinance because they say that it is not aimed at the prevention of fraud and misrepresentation, but is an attempt to destroy the business of ticket brokers, while at the same time they complain that the ordinance will interfere with the arrangements which they claim a constitutional right to make. No ticket broker or scalper is concerned with this suit, and none is represented by the appellee, and if the ordinance merely prohibits the innocent business of ticket brokers the appellee will not be harmed. The argument, however, concerning the rights of ticket brokers to buy and sell tickets and the right of appellee to sell to them is an effort to raise a false issue in no manner involved in the question whether the court erred in sustaining the demurrer to the answer. The answer alleged that the license was refused because appellee would not agree to obey the requirement of the ordinance for impartial treatment of ticket buyers and to stop the prac There is noth "The power vested in the Legislature by the Constitution to make, ordain or establish all manner of wholesome, reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the Constitution, as they shall judge to be for the good and welfare of the commonwealth, and of the subjects of the same." It extends to the prohibition of anything which in the reasonable exercise of the leg-tices set forth in the answer. islative judgment can be regarded as hurtful to the community, and there can be no question that the plan by which patrons of the theater, because of arrangements between the managers and ticket brokers or scalpers, are required to pay more than the advertis-It is so interpreted by counsel for the appeled prices of admission, in which the manager of a theater shares, is unfair and injurious to the public and contrary to the public welfare. In Cooley on Torts (2d Ed.) 336, it is said: ing in the answer about purchasers of tickets, whether brokers or not, or their right to resell tickets at a profit. The manifest object of the ordinance is to compel impartial treatment of all buyers of tickets by the licensee. lants. The corporation counsel in his brief and argument says: "The purchaser of such tickets, so far as this ordinance is concerned, may resell them at an advanced price or do anything else with them which he may desire to do." "Theaters and other places of public amuseConsidering the whole ordinance with its ment exist wholly under the authority and pro- evident purpose, it does not prohibit sales tection of state law and their managers are entirely licensed by the state, and in conferring to brokers or any other class of persons, but a license it is no doubt competent for the state is designed to prevent theater owners from to impose the condition that the proprietor shall entering into such arrangements as are statadmit or accommodate all persons impartially." ed in the ordinance. The real and substanAnd this is stated as a general principle tial argument for appellee is that the legisla and not with reference to civil rights acts tive power does not extend to compelling a passed under amendments to the federal theater owner to treat the public impartially Constitution, aimed against discrimination in the sale of its tickets, and in the argument because of race, color, or previous condition it is contended from first to last that that of servitude. To give it a meaning that a question was decided in the consolidated municipality may make a condition that the cases of People v. Steele and People v. Altlicensee shall not violate civil rights acts, schul, 231 Ill. 340, 83 N. E. 236, 14 L. R. A. which carry their own sanction without re- (N. S.) 361, 121 Am. St. Rep. 321, and the gard to municipal regulation, would be ridic- four cases decided in City of Chicago v. ulous. The General Assembly having legis- Powers, 231 Ill. 560, 83 N. E. 240, and that lative authority to license and regulate theaters, and to exercise the police power, has by the forty-first paragraph of article 5 of the the doctrine of stare decisis requires the court to affirm the judgment of the superior court. This is a total misapprehension of es. the questions decided in either of those casWhat was decided in a particular case is to be determined by the facts and the question involved. Brown v. Coon, 36 Ill. 243, 85 Am. Dec. 402. There was no question related to the one here involved in either of those cases, and the only similarity is that the suits concerned theater owners and ticket brokers or scalpers, and it is only by contending that this ordinance is designed to break up the legitimate business of ticket brokers that any resemblance is found. supra, because the people of the city of Chicago attempted to do by an ordinance what the General Assembly could not do by a statute. The decisions in those cases were in accordance with the weight of authority that the constitutional liberty of the ticket broker is violated when he is prohibited altogether from carrying on his business. Tiedemann on Limitation of Police Power, 293. They were, in effect, the same as the decision of the Supreme Court of the United States in Adams v. Tanner, 244 U. S. 590, 37 Sup. Ct. 662, 61 L. Ed. 1336, L. R. A. 1917F, 1163, Ann. Cas. 1917D, 973, in which it was held that the statute making it a criminal offense to collect fees from workers for furnishing them with employment was a violation of In 1907 the General Assembly passed an act prohibiting the sale of tickets for theaters, circuses, and places of public amusement for more than the price printed thereon. That was the sole purpose of the act and the only subject expressed in the title. Laws constitutional rights, because it was not a 1907, p. 269. To make the prohibition effect- proper regulation of employment agencies ive it required the owner to print on the tick- for the public welfare, but was destructive et the price, with the following words: “This of the lawful and useful calling even if it ticket cannot be resold for more than the was carried on in an upright way. The case price printed hereon." That was the only of People v. Weiner, 271 Ill. 74, 110 N. E. requirement of the theater owner and the 870, L. R. A. 1916C, 775, Ann. Cas. 1917C, only connection he had with the act. Ed-1065, was decided on the same principle as ward W. Steele, manager of the Colonial the other cases, because the ordinance was Theater, sold a ticket of admission to Philip entirely destructive of the business of mak J. Altschul for $1.50, which was printed on ing mattresses from secondhand material, the face of the ticket and was the price of which might be absolutely pure, healthful, admission, and Altschul sold the ticket to and free from any objection, and that ordiJames Bell, a policeman, for $2 at a desk | nance cannot be likened in any particular to in the Morrison Hotel, where he conducted an ordinance to prevent discrimination and the business of selling theater tickets. practices hurtful to the public. In every Steele and Altschul were each convicted in case the right of regulation has been recogthe municipal court for violation of the act.nized, but the power to destroy a legitimate The charge against Steele was that he had business, which was attempted by the statute not made it a part of his contract by print- and ordinance held void in the Steele and ing on the face of the ticket that it should Powers Cases, has been denied. not be resold for more than $1.50, and the Much is said by counsel for appellee about charge against Altschul was that he sold the the quotation in the Steele Case from Collisticket which he had bought and paid for, for ter v. Hayman, 183 N. Y. 250, 76 N. E. 20, 1 more than he paid for it. The only question L. R. A. (N. S.) 1188, 111 Am. St. Rep. 740, involved that was decided or could have been 5 Ann. Cas. 344, and other statements of the decided was whether the statute was an in- same character about the nature of the busivasion of the constitutional right of Altschul ness of running a theater. The meaning and to sell a ticket for more than he had paid effect of the quotation and its utter and absofor it, and the right of Steele to sell the tick-lute inapplicability to this case will be apet without making it a part of the contract parent when the facts are stated. The dethat Altschul should not sell it for more fendants were managers of the Knickerbockthan he paid. The decision was that the act, er Theater, and the plaintiff Collister brought which prohibited the manager of the theater the action to restrain them from interfering from selling tickets to brokers at the regular with his business of selling on the sidewalk price charged to everybody, with absolute and outside of the prohibited limits tickets impartiality to all patrons of the theater so of admission to the theater, which was his far as he was concerned, unless he made it a business and from which he derived an inpart of his contract that the purchaser should come of $4,000 a year. On the tickets there not resell it for a greater price, and that was printed, "Tickets purchased on the sidethe purchaser should not sell it for more than walk will positively be refused at the door." he paid for it, was contrary to constitution- The court said the business was a private al right. The correctness of that decision is one clothed with a public interest, and the not in question in this case, and has nothing owner had a right to regulate the terms of whatever to do with it. In the case of City admission in any reasonable way, and had a of Chicago v. Powers, supra, the city passed right to prohibit ticket scalping by the notice an ordinance having the same provisions and on the ticket that if bought from a ticket the same object as the statute, and four scalper it would be refused at the door. cases were consolidated in this court. The Surely neither the Court of Appeals nor this decision followed that of People v. Steele, court intended an affront to ordinary intel ligence by holding that because the owners of the Knickerbocker Theater could prohibit ticket scalping the city of New York or a municipality of this state could not. The quotation and similar statements in the Steele Case were evidently for the purpose of making clear that the business was a pri vate one. The business of the theater owner or manager is private in the sense that no franchise from the state is required, but it is no more private than the business of hawkers, peddlers, pawnbrokers, keepers of ordinaries, circuses, or other shows and amusements which invite the public generally to attend and exist entirely by the public. A place of amusement to which the public are generally invited upon no condition but the payment of a fixed charge is public in a general sense, and it differs radically from accommodations offered by a merchant or professional man, who, while he invites every one to enter, does so only for the purpose of selling to each individual services or The recent case of Woollcott v. Shubert, 217 N. Y. 212, 111 N. E. 829, L. R. A. 1916E, 248, Ann. Cas. 1916B, 726, was a suit against the proprietor of the theater for excluding a dramatic critic who had written an objectionable criticism, and the question was whether a theater proprietor could, under the Civil Rights Act of New York of 1913 (Laws 1913, c. 265), exclude from it a per- merchandise. Jones v. Roller Skating Rink, son upon any other ground than race, creed, or color. The court decided that at common law the proprietor of a theater might admit or exclude persons at his pleasure, and the State Civil Rights Act did not destroy that common-law right where the exclusion applied alike to all persons, and was not based on race, creed, or color. That question has no relation, however remote, to the question here involved. 136 Wis. 595, 118 N. W. 170, 19 L. R. A. (N. S.) 907. In Greenberg v. Western Turf Ass'n, 140 Cal. 357, 73 Pac. 1050, the statute was sustained which provided that it should be unlawful for the proprietor of any public place of amusement or entertainment to refuse admittance to any person over the age of 21 years who presented a ticket of admission acquired by purchase, provided that any person under the influence of liquor In Ex parte Quarg, 149 Cal. 79, 84 Pac. or guilty of boisterous conduct or any per766, 5 L. R. A. (N. S.) 183, 117 Am. St. Rep. son of lewd or immoral character might be 115, 9 Ann. Cas. 747, the statute under which excluded. The Supreme Court of the United Quarg was convicted provided that every States upheld the validity of the statute as person who offered for sale or sold any tick- free from objection under the federal Constiets to theaters or any other public place of tution in Western Turf Ass'n v. Greenberg, amusement at a price in excess of that charg- 204 U. S. 363, 27 Sup. Ct. 384, 51 L. Ed. 520. ed originally by the management of such Greenberg's suit was for being unlawfully theater or place of amusement should be excluded from defendant's race course, and guilty of a misdemeanor, and the decision the court said that the act was not a violathat the statute infringed upon constitution- tion of constitutional rights, as it was apal rights of property is of the same charac- plicable alike to all persons, corporations, or ter as the decision in the Steele Case and associations conducting places of public other cases where the purpose was to de- amusement or entertainment, and of still stroy a business not injurious to the public less merit was the claim that the statute welfare by prohibiting a broker from mak- abridged the rights of citizens or deprived ing profit. The statement in the Steele the defendant of his rights without due Case that the manager of a theater may fix process of law, and that the statute was only the price arbitrarily and raise or lower it a regulation of places of entertainment and at his will, and having advertised a per- amusement upon terms of equal and exact formance is not bound to give it, and hav- justice to every one holding a ticket of ading advertised the price he is not bound to mission who was not at the time under the sell tickets at that price, has no possible re- influence of liquor, boisterous of conduct, lation to the question whether under the or of lewd or immoral character, and was police power the manager of a place of pub- valid. The court said that a place of public lic entertainment may be compelled to treat entertainment and amusement is so far afpatrons impartially by putting an end to an fected with the public interest that the state existing system by which theater owners may, in the interest of good order and fair and ticket scalpers are confederated together dealing, require the owner to perform its to compel a portion of the public to pay a engagement to the public and recognize its different price from others. The question own tickets of admission. It is true that inhere is whether the Constitution protects a dividuals are not forced to buy tickets from theater owner in a scheme by which an ap- scalpers, and are acting upon their own voliplicant for a ticket is told that the house is tion, but they are making their choice besold out, and upon going to the ticket scalp-tween paying the higher price and not witer is permitted to select the part of the nessing the performance to which the public house where he desires to sit and the ticket are invited. Witnessing a theatrical performscalper turns to the telephone and directs the theater to send up a ticket, which is sent and sold at an advanced price. ance is not one of the necessaries of life, but that affords no reason why the legislative power should not be exerted to prevent mis representation and fraud in the sale of the- ment for plaintiff, and defendant brings cerater tickets by the theater owners themselves tiorari. Reversed and remanded. error. and to require fair and impartial treatment R. J. Goddard, of Sparta, and H. Clay of the public. That the business, although Horner, of Chester, for plaintiff in error. private, is clothed with a public interest was A. E. Crisler, of Chester, for defendant in recognized and stated in the Steele Case, and there is no provision of the statute which limits the legislative power to prohibit the unquestioned evils of the existing system. No provision of the state or federal Constitution prohibits the exercise of such power. The judgment is reversed and the cause remanded, with directions to overrule the demurrer, and for further proceedings not inconsistent with this opinion. Reversed and remanded, with directions. DUNN, J., dissenting. (283 Ill. 31) BEVERIDGE v. ILLINOIS FUEL CO. (No. 11692.) (Supreme Court of Illinois. Feb. 20, 1918. 1. MASTER AND SERVANT 351 - INJURIES A plea of general issue in action by servant for injuries traverses an allegation that the master had elected not to come under the Workmen's Compensation Act. To prove that a master has elected not to be bound by the Workmen's Compensation Act, the servant must not only show that the master had so notified the Industrial Board under section 2, but also that plaintiff had received a copy thereof, or a copy had been posted where he was employed. 4. MASTER AND SERVANT 401 GENCE CASE-PLEADING ISSUES. NEGLI DUNN, J. The Appellate Court for the Fourth District affirmed a judgment for $7,500 recovered by Hector Beveridge in the circuit court of Randolph county in an action on the case for personal injuries, against the Illinois Fuel Company, and the record has been certified to this court as a return to a writ of certiorari issued on the petition of the Illinois Fuel Company. [1] The declaration in four counts charged the plaintiff's injuries to have been received as the result of the defendant's willful failure to observe the requirements of the Mining act in the operation of its mine in which the plaintiff was employed. In each count it was alleged that the defendant had elected not to comply with or be bound by the Workmen's Compensation Act and was not operating under that act. This was a material allegation. The Workmen's Compensation Act of 1913, which was in force when the plaintiff was injured, provides that no common-law or statutory right to recover damages for an injury sustained by an employé while in the line of his duty, other than the compensation provided in the act, shall be available to any employé who is covered by the provisions of the act. It was essential, therefore, to the statement of a cause of action for a, negligent injury by an employé against his employer, that it should appear that the employé was not covered by the proA declaration which fails visions of the act. to state a fact whose existence is necessary to entitle the plaintiff to recover does not state a cause of action. Walters v. City of Ottawa, 240 Ill. 259, 88 N. E. 651. The act further provides that every employer engaged in mining shall be conclusively presumed to have elected to provide and pay compensation according to the provisions of the act unless and until notice in writing of his elec In a negligence case, where servant alleged the master had elected not to be bound by the Workmen's Compensation Act, the master could put such allegation in issue without filing a plea to the juris liction; such defense not being lack of jurisdiction, but want of cause of action to the contrary is filed with the Industion. 5. MASTER AND SERVANT 408-WAIVER OF PROOF-NEGLIGENCE. Where the question whether master had elected not to be bound by the Workmen's Compensation Act was an issue, the master did not waive proof of such issue by attempting to disprove the negligence alleged, because plaintiff must prove both, and master was not required to elect. Carter, C. J., dissenting. Error to Appellate Court, Fourth District, on Appeal from the Circuit Court, Randolph County; George A. Crow, Judge. Action by Hector Beveridge against the Illinois Fuel Company. There was a judgment of the Appellate Court, affirming a judg trial Board, and unless and until such em- [2, 3] No objection was made to the sufficiency of the allegation, but it is insisted that it was not proved. The only plea was the general issue, the effect of which is to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes counsel in open court. There is no such admission here. The judgments of the Appellate Court and Reversed and remanded. traverse every material allegation in the declaration. Curtiss v. Martin, 20 Ill. 557; Van Dusen v. Pomeroy, 24 Ill. 289. To sustain this allegation the plaintiff introduced the circuit court will be reversed, and the in evidence a notice signed by the president cause remanded to the circuit court of Ranand secretary of the defendant, addressed dolph county. to the Industrial Board, stating that it was given in conformity with the provisions of section 2 of the act, and that notice was thereby given that the defendant had elected not to accept the provisions of nor to pay compensation according to the provisions of the act, the title of which was set out. No evidence was offered to show that a copy of such notice was either furnished to the plaintiff or posted at the place where he was to be employed. There was therefore a failure to prove the allegation that the defendant was not operating under the Workmen's Compenstion Act, and the defendant's motions for a peremptory instruction for a verdict in its favor, asked at the close of the plaintiff's evidence and at the close of all the evidence, should have been given. [4, 5] The defendant in error argues that the statement filed with the Industrial Board that "notice is hereby given that the undersigned have elected not to accept the provisions of or pay compensation according to the provisions of" the Workmen's Compensation Act should be given effect as an admission of the plaintiff in error that it has also complied with the provisions of the act in regard to giving notice to its employés personally or posting such notice at the proper place. The statute, however, requires that both these acts shall be done, and the doing of one cannot be regarded as evidence of an admission that the other has been done. It was not necessary, and it was not proper, for the defendant to file a plea to the jurisdiction of the court. The circuit court has jurisdiction of all actions of trespass on the case, and the defense in this case was not lack of jurisdiction of the court, but the want of any cause of action in the plaintiff. That question was properly raised by a plea of the general issue. Neither was there any waiver of proof of this allegation by the introduction of evidence on behalf of the defendant to disprove the negligence charged in the declaration. It was incumbent on the plaintiff to prove both the negligence alleged in the declaration and the fact that defendant was not operating under the Workmen's Compensation Act. The defendant had the right to disprove either of these issues and was not obliged to make an election between them, but was entitled to introduce evidence on either or both. Counsel for defendant in error cites the case of Dietz v. Big Muddy Coal Co., 263 Ill. 480, 105 N. E. 289, but in that case the court accepted and acted upon the admission of CARTER, C. J. (dissenting). I think the judgments of the Appellate Court and the circuit court should be affirmed. I agree with the conclusion in the opinion that the allegations of the declaration required the plaintiff to prove that the defendant was not under the Workmen's Compensation Act, but I am strongly of the opinion that such proof can and should be held to be waived in this case. In Dietz v. Big Muddy Coal Co., 263 Ill. 480, 105 N. E. 289, this court held that where counsel for the coal company conceded in oral argument before this court that it never had been, and was not at the time of the accident, operating under the Workmen's Compensation Act we would assume that such was a fact. Of course, if counsel on the trial of this case in the circuit court had conceded that fact it would be held to be binding here, the same as when conceded in this court. There is an old maxim that "actions speak louder than words." I think the actions of the counsel for defendant on the trial of this case in the nisi prius court were such as to indicate that it was conceded on that trial that defendant had elected not to come under the Workmen's Compensation Act, for it offered proof and tried the case on a theory that would not have been proper had it been operating under that act. It attempted to prove certain conditions and surroundings at the time of the accident which tended to show that the company's negligence was not the proximate cause of the injury and that it was not guilty of willful failure to mark as dangerous the place where the injury occurred. If it is true that the defendant was operating under the Workmen's Compensation Act, then a liability would attach whether the defendant was negligent or not and whether or not its conduct was the proximate cause of the accident. Clearly, these defenses could not have been proved had the defendant been operating under the Workmen's Compensation Act. It must be assumed that counsel for the defendant, as well as the trial court, understood this to be the situation, or the court would not have permitted such proof to be presented for consideration. To permit counsel to raise this question in a court of review for the first time, when it was, in effect, waived in the trial court, seems to me entirely inconsistent, not only with justice, but with reasonable and correct principles of pleading and practice. |