but that they were not bound to do so unless the circumstances of the case appeared to require it.

The case was argued by Messrs. John S. Hamilton and Robert Woods, for the petitioners, and by C. Shaler & Co., for the appellees.

PER CURIAM.-It is well settled, that the power to appoint reviewers of a road laid out by State Commissioners is discretionary with the Court of Quarter Sessions. That it must be exercised whenever demanded, is a proposition much harder to prove, than it would be to show on original principles that it does not exist at all. But being discretionary we have no right to review an order which depends on it. Order affirmed.

In the District Court of Allegheny County.

ROWLAND v. Kleber.

(Vol. I., p. 129, 1853.)

The 5th section of an Act of May 15, 1850, declares "That hereafter the price of a theatre or circus license, or museum, or any other place for theatrical representations, shall be, in the city of Philadelphia, five hundred dollars, and in the county of Allegheny, two hundred dollars, &c.: Held, that an opera company could not be taxed a license fee under this Act.

CASE STATED. This is an action brought by the Treasurer of Allegheny County, for the use of the Commonwealth of Pennsylvania, to recover of the New York "Italian Opera Company" two hundred dollars, the price of a license fixed by the Act of 10th April, 1849 (Dunlop 1050), which provides:

"Hereafter the price of a theatre or circus license in the city or county of Philadelphia shall be five hundred dollars, and in the county of Allegheny two hundred dollars; and for every theatre or circus in any other county in this commonwealth, eighty dollars."

As also Act of 16th April, 1848 (Dunlop 936), and the 15th May, 1850 (Dunlop 1120): "That hereafter the price of a theatre, or any other place for theatrical representations, shall

be, in the county of Allegheny, two hundred dollars." Sect. 5th, and the 12th sect. of 1851 (Dunlop 1138).

It is admitted that this Opera Company have given a series of operatic representations at the Athenæum, a house fitted up for performances of this description, and for theatrical representations, owned by Mr. Alex. M'Clurg. They having rented said premises for eight nights from said M'Clurg, and have performed on four nights, and intended to perform on four other nights, all the representations to be given within three weeks.

The question intended to be raised in this case is, "Whether this company are liable to pay the tax demanded?" Should the Court be of opinion that they are, judgment is to be entered for the plaintiff for $200; should they hold otherwise, judgment to be entered for defendant, and costs according to said judgment.

J. H. Sewell, for plaintiff.

C. Shaler & Co., for defendant.

The opinion of the Court was delivered by

SHANNON, P. J.-By the Act of 1845, referred to, the treasurer of any county has authority to grant licenses on the payment of the following sums, to wit:

For every theatre or circus in the city or county of Philadelphia, the sum of two hundred dollars; and for every theatre or circus in the county of Allegheny, the sum of one hundred dollars; and for every theatre or circus in any other county in this Commonwealth, the sum of fifty dollars; for every menagerie the sum of forty dollars. In the second section of that act, and in the provisoes thereto, there are just three distinct terms made use of, namely: circus, theatre, menagerie.

There is a penal part annexed, in which the offence is made in dictable and punishable by a fine of not less than one hundred dollars nor greater than one thousand dollars.

The 24th section of the Act of 10th of April, 1849 (specially quoted in the case stated), is in the following language: "That hereafter the price of a theatre or circus license in the city or county of Philadelphia, shall be five hundred dollars, and in the county of Allegheny, two hundred dollars; and for every theatre.

or circus in any other county in this Commonwealth, eighty dollars."

The fifth section of the Act of 15th of May, 1850, declares "That hereafter the price of a theatre or circus license, or museum, or any other place for theatrical representations, shall be in the city and county of Philadelphia, five hundred dollars, and in the county of Allegheny, two hundred dollars, and for each and every other county of this Commonwealth, within the bounds of which such theatre or circus may be shown, held or exhibited, the sum of fifty dollars; and the price of a menagerie license shall be in the city and county of Philadelphia two hundred dollars, in the county of Allegheny one hundred dollars, and for each and every other county of this Commonwealth, within the bounds of which such menagerie may be exhibited or shown, the sum of thirty dollars; such licenses shall be granted according to the provisions of the second section of the Act of the sixteenth day of April, 1845, by the treasurer of the proper county, upon receiving the price of the same; but no such license shall entitle the party who shall receive it to make any such exhibition, except within the county for which the same shall be granted; and if any person or persons shall attempt to show, hold or exhibit any such theatre, circus or menagerie within any city or county of this Commonwealth, without such license as aforesaid, he or they so offending shall be liable to indictment, and on conviction thereof, shall pay for every such offence a fine not less than two hundred dollars, nor greater than one thousand dollars, at the discretion of the Court trying the said offence."

The 12th section of the Act of the 14th day of April, 1851, enacts that the proprietor, or manager of a theatre, circus or menagerie, may obtain a license for the whole state for one year, upon the payment of one thousand dollars.

The foregoing are the statutes referred to in the case stated, upon the construction of which this matter is to be decided. There are, then, four kinds of public performances or exhibitions for which a tax must be paid, upon the receipt of which the treasurer of the county is authorized to grant a license. They are a theatre, a circus, a menagerie, and a museum.

Shall this Opera Company be required to pay the tax of two

hundred dollars? It will be conceded that this performance does not come under the head of any of the last three enumerated classes. It is neither a circus, a menagerie, nor a museum.

If it is to be taxed at all, it must come under the head of a theatre. Is it, then, a theatre ?

A theatre is defined to be a house for the exhibition of dramatic performances, as tragedies, comedies, and farces; a play house, comprehending the stage, the pit, the boxes, galleries and orchestra. Amongst the ancients, indeed, it signified an edifice in which spectacles or shows were exhibited for the amusement of spectators, as its derivation from the Greek verb "to see," plainly shows. But in modern times its meaning has been restricted as above. And there is such a distinction between the words theatre and circus, that in order to tax the latter, the Legislature were constrained to name it expressly in the statutes. For a circus, anciently, was also an edifice or enclosure used for the exhibition of games and shows to the people; such was the Circus Maximus, which was nearly a mile in circumference. Although now it means a circular enclosure for the exhibition of feats of horsemanship.

An opera, on the other hand, is a composition of a dramatic kind, but set to music and sung, accompanied with musical instruments, and enriched with appropriate costumes, scenery, &c. The house in which operas are represented, is termed an operahouse.

A theatre is, therefore, the house in which dramatic compositions are spoken or recited, by persons called actors—as, for instance, the plays of Shakspeare, Knowles and Bulwer.

An opera-company are persons who sing compositions set to music—such as the operas of Mozart, Handel, Rossini, Verdi, &c.

There is, in fact, about the same distinction between them, as there is betwixt a declaiming or debating society and a singingschool.

In the construction of statutes there are certain rules laid down which must not be departed from. They should be construed according to the intent of the legislature that passed the act. If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound the words

in their natural and ordinary sense. The words themselves alone do, in such case, best declare the intention of the lawgiver. An Act of Assembly shall be read according to the ordinary and grammatical sense of the words, unless being so read, it would be absurd or inconsistent with the declared intention of the legislalature, to be collected from the rest of the act, or unless an uniform series of decisions has already established a particular construction. Consequently, the best exponents of the legislative mind are the words of the statute, where they are free from ambiguity. But where they are not, we must resort to legislation on kindred subjects, the spirit of our institutions, and the habits of the community, to discover the intent of the legislature. What was really the intention of the legislature in this particular case? Did they or did they not intend to impose a tax upon singing and music?

These musical compositions, very little known in Pennsylvania until of late, are the productions of persons of great genius, who have become almost world-renowned, who possess wonderful power in the arrangement and combination of concords of sweet sounds.

Mozart, whose ring was once thought by an incredulous populace to be talismanic, so extraordinary was his power,-produced a number of operas, which all rank among the noblest triumphs of musical genius.

Handel, who was placed, in England, at the head of the Royal Academy of Music, and in whose commemoration, a century after his birth, Westminster Abbey was filled with a musical display such as perhaps was never witnessed in any country-also enriched the department of music by the production of operas. Then we have Bellini, Donizetti, and other illustrious names. Their productions, it is believed, have not been charged with impurities of thought or sentiment.

It will not avail to urge that the legislature meant to tax all public exhibitions of pleasure or amusement, where large assemblages gather, paying a price for admission. For there is one class of performances which it has never been contended, fall within the scope of these statutes, namely, those which are commonly called concerts. Jenny Lind, Parodi, or Kate Hays, might