dissenting:
We assume without discussion, as the opinion of the court assumes, that public dancing is an amusement the right to license, tax, regulate, suppress and prohibit which the legislature has attempted to confer on the city council. In the judgment of the city council the tendency of unregulated public dancing in restaurants and public places of refreshment is vicious and inimical to the public morals, therefore the council enacted that public dancing should not be permitted in restaurants and public places of refreshment conducted elsewhere than in a licensed dance hall. Is the tendency of unregulated public dancing toward the corruption of morals? Does the prohibition of public dancing in unlicensed places tend to prevent the injury to pub-lie morals ? The city council’s affirmative answer to these questions is the basis of the ordinance in controversy. Perhaps there may be men who would arrive at a different conclusion, but it cannot be said that this decision by the legislative authority, of a question clearly within its police power, is so manifestly unreasonable that the judicial authority should set it aside. It may be reasonably assumed that no one doubts that the regulation of public dancing is within the legitimate exercise of the police power. It seems equally clear that the ordinance in question is adapted to secure proper supervision of public dancing by prohibiting it unless licensed. The ordinance must therefore be held valid unless it unreasonably interferes with private rights.
It is true that there is nothing necessarily harmful in permitting the patrons of a restaurant to dance while the restaurant is open to the general public. It is equally true that such dancing is not necessarily a harmless method of amusement. It may be conducted in such a way as to be offensive to public morals. Though dancing as conducted in restaurants and places of amusement in Chicago fortunately has always been “orderly, dignified, quiet, respectable, decent and peaceful,” as testified by the witnesses and certified in the statement of facts, it is not necessarily so. It merely happens that the vicious element has not yet obtained a foothold in the restaurants and places of amusement of that city. It is said on the authority of Village of DesPlaines v. Poyer, 123 Ill. 348, because the privilege may be abused is no reason why it shall be denied. It is, however, a very good reason why it should be regulated, and even denied, except upon conditions which will prevent the abuse, and there is nothing in Village of DesPlaines v. Poyer to the contrary. The ordinance there simply prohibited open-air dances.
It may be conceded that the city has no power to compel the owner of a restaurant to charge a fee for the privilege of dancing extended to its patrons. This ordinance attempts no such compulsion. It prohibits the extension of the privilege of public dancing, whether free or for pay, in restaurants not conducted in licensed dance halls. An ordinance of the city provides for the licensing of dances in any hall, structure or building. Although this ordinance relates only to amusements “offered, operated, presented or exhibited for gain, or for admission to which the public is required to pay a fee,” there is nothing to prevent the defendant in error from obtaining a license for a dance hall. Whether it charges all persons or some persons, only, much of little or nothing for dancing in such hall, or charges some persons more and others less, is a matter with which the city does not concern itself. Dancing in such licensed hall is regulated, and that is the object of the ordinance in question. It seeks to regulate public dancing in restaurants and public places of refreshment by requiring the observance in such places of the regulations prevailing in the case of licensed dance halls.
An act not in itself harmful, immoral or illegal may be declared illegal by a legislative enactment. In the exercise of the police power an act hurtful to the comfort, safety or welfare of society may be prohibited by law even though the prohibition invades the right of liberty or property of an individual. A statute or ordinance having this effect must have a reasonable relation, and be appropriate, to the prevention of something injurious or the promotion of something beneficial to the public welfare. Such an enactment does not violate the constitutional provision which protects against deprivation of property without due process of law though it prohibits and makes criminal an act not in itself immoral. Particular acts may not themselves be immoral, but the tendency of what is often done in the performance of those acts may be towards what is immoral. If the law-making power, considering -the circumstances which frequently attend the doing of such acts, thinks that certain admitted evils cannot be prevented unless these acts are prohibited, the courts cannot interfere unless, looking through mere forms and at the substance of the matter, they can say that the enactment made to protect the public morals has no right or substantial relation to that object but is a clear, unmistakable infringement of rights secured by the fundamental law. (Booth v. People, 184 U. S. 425 ; 186 Ill. 43.) The individual must often surrender natural rights for the general good. The constitutional right to bear arms does not justify the carrying of a concealed weapon in violation of a statute, however justifiable such an act might otherwise be. The right of a woman to eafn a living and of another to employ her does not justify her employment, contrary to the provisions of a municipal ordinance, to serve customers in a place where intoxicating liquors are sold, however orderly the place and virtuous the woman. (Bergman v. Cleveland, 39 Ohio St. 651.) Nor does such right justify her employment beyond the number of hours limited by statute for certain occupations, however able and desirous to work she may be. (People v. Blending, 254 Ill. 579.) Cotton in the seed is property, but a statute prohibiting its -sale and forbidding its transportation after sunset and before sunrise has been held valid. (Davis v. State, 68 Ala. 58.) The possession of certain game later than five days after the expiration of the open season for such game, though killed in another State where such killing was lawful and shipped to a purchaser in this State, may lawfully be prohibited. (Magner v. People, 97 Ill. 320.) So the prohibition of the sale of certain kinds of fish, though caught without the State where such taking was lawful, was held within the legislative power as a means of enforcing the prohibition of the taking of such fish within the State otherwise than by hook and line. (People v. Booth Fisheries Co. 253 Ill. 423.) In Kettering v. City of Jacksonville, 50 Ill. 39, in a prosecution for the violation of an ordinance prohibiting the sale of liquor and beer, it was insisted that the beer sold must be shown to be intoxieating, but the court held otherwise, saying: “The city did not see proper to confine the prohibition to beer of an intoxicating quality, and we have no right to interpolate such a qualification. The city council may have supposed it important to prevent the establishment of any species of beer shops in view of the fact that intoxicating drinks are so often sold in places which openly deal only in harmless beverages.” The same principle applies to the ordinance in question. The city council, for the suppression of the evils arising from suggestive and immoral dancing, may have thought it necessary to prevent all public dancing in restaurants and public places of refreshment not conducted in licensed dance halls. If the ordinance tends to the suppression of immoral dancing, the fact that it may interfere in some cases with dancing which is not immoral does not render it invalid.