Bostick v. Purdy , 5 Stew. & P. 105 ( 1833 )

TAYLOR, J.

This is a qui tám action, brought by the plaintiff in error, against the defendants, under the sixth section of the act passed in January, 1827, entitled an “ act to raise a revenue for the .support of government, until otherwise altered by law.”

The sixth section is as follows: “ That every person who shall exhibit or cause to be exhibited, for hire or emolument, any museum, wax-works, feats of activity, slight of hand or plays, shall first obtain from the clerk of the County Court of the County where the same may be exhibited, a license, authoris-ing the same; for which the party applying shall pay to the clerk, twenty dollars, for the use of the State, together with one dollar, as a fee to the clerk, for issuing the same : and any person who shall exhibit as aforesaid, without first obtaining sugh license, .shall forfeit and pay the sum of two hundred dollars, to be recovered,” &c.

The declaration charges, that “ the said Evenharfc Purdy, James Wright and Ira Olmstead, did exhibit, at the house and dwelling of the said Thomas Bradford, at the County aforesaid, for hire, fees and emolument, a museum of living animals, without having obtained a license.” &c.

To this declaration there was a demurrer, which was sustained; and the question submitted for our ' determination, is, can a “ museum," within the meaning of the statute, be constituted of “living animals” 1

The philological discussion, which has been produced by this question, was both amusing and interesting ; and I feel much indebted to the counsel, for the light which their researches have thrown upon the subject.

By tracing the Greek word, from which “ museum” is derived, to its root, it is found to signify amusement, or to .amuse: and thus, the term “ museum,” would appear to embrace not only collections, of curiosities, for the entertainment of the sight, but also such as would interest, amuse and instruct the mind. Accordingly the first museum of which we read, was ■the celebrated library of Alexandria in Egypt.— •This establishment was afterwards extended, so as to embrace many things, besides books; but, in the beginning, they constituted its sole, as they always did its richest, treasure.

Rees, in his Encyclopedia, informs us of a museum at Paris, exclusively dedicated to natural history, called the “Museum d' Histonl Naturelle” also known by the name of “ Jardín des Plantes,” which was instituted in 1663. The national, assembly, by a decree, passed in 1793, changed the name of this institution, to that of “ Museum National cVHistorie Natu-relle.”

“ The upper story of the building,” says Dr. Rees, “ is set apart for zoology. Here we find not only the systematic and trivial names affixed to all the species, but also tickets, descriptive of the families and orders into which the animals are distributed.” He also informs us that the great saloon, adjoining the mammalia room, contains the remaining animals, all of them systematically arranged, and ticketted in the same manner as the mammalia. The number of birds, he says, is very considerable. The amphibious animals are classed after Lacepede’s system, as are the fishes, &e. The menagerie of this museum is also said to be in a good state, and very rich in scarce and curious animals.

It thus appears, that “ living animals may form a part of a museum, but can there be a museum, consisting of nothing else 7

Were we to be informed that a collection had been made with great care, by some zoologist, of all the animalcula, small birds and small animals, known to natural history, we should at once fix the name and idea of a museum to this collection; and, from the pleadings, we are not informed, but that such was the collection, for the exhibition of which this suit was brought. The presumption is, it is true, that this was what is termed a menagerie of large foreign animals; but, does the circumstance, that one appel-. lation is usually given to this kind of collection, prevent its being embraced in another. The word “ museum ” is a comprehensive term, and may embrace within it a menagerie, as well as many other things; and such is the fact, as respects the museum of Paris above noticed.

If we say that a collection of large animals can not constitute a museum, what is to be the line of de-marlcation between the large and small 1

■ From the view which I have taken of the subject, I conclude that a museum, in the correct and proper meaning of the word, may be composed of “ living animals” only, whether they be large or small, or a mixture of both.

Let us now examine whether the general assembly intended to embrace a collection of this kind within the meaning of the statute.

I do not understand the intention, in passing the law, to have been the suppression of all those exhibitions upon which a tax is imposed. The small amount of the tax forbids this idea. The object appears to have been simply the improvement of the revenue, by a moderate imposition upon persons who often make large sums of money, by this kind of exhibitions, among our citizens.

There is nothing peculiarly deleterious to morals in the exhibitions which are particularly specified in the act, and it was well known, when the statute was passed, that the exhibition of living animals was as frequent, and probably more so, than of waxwork, feats of activity, &c. Why should those who carry about these animals, be exempt from taxation, who probably profit as much by their employment as any of the others, and those who exhibit wax figures, the making of which is certainly a work of ingenuity and art, be subject to it'? I can see no good reason for the distinction, myself, nor can I think the legislature intended to make any.

In addition to the reasons which thus present themselves, to induce us to believe that the act does include a collection of “ living animals,” we have a plain expression of the opinion of the body who passed it, in a private act, passed at the same session at which the law was enacted, under which this suit was brought. It is entitled “ an act to compensate Reuben Chapman, for certain services therein mentioned.” It recites, that “ whereas a qui tam action was-instituted, in the County of Morgan, against a certain Eleazer Baldwin, for having exhibited a museum of living animals, without having obtained a license, au-thoi'ising such exhibition; and whereas, also, through the instrumentality of Reuben Chapman, (attorney at law,) who managed and conducted said suit for' the State, a judgment was had and obtained against the said Eleazer Baldwin, for the sum of two hundred dollars, one half of which sum has been paid into the treasury of the State.” The act then proceeds to make an allowance of twenty-five dollars to Mr. Chapman, for his services.

Here is a plain declaration by the general assembly, that they did intend to include a collection of living animals, within the term “museum.”

We certainly would not be authorised to resort to a distinct act, particularly a private one, to ascertain the meaning of the legislature, when the statute under consideration, imported, within itself,-a different meaning. But, when it is insisted, that a term is intended to be understood in a restricted, instead, of the enlarged meaning which properly and correctly belongs to it, I feel justified in resorting to any other law, passed by the same body, in which the word is used, in a manner calculated plainly to show in what sense it was understood by those who used it.

The judgment is reversed; and the cause remanded, that the defendants may have the pifivilege of withdrawing their demurrer, and pleading to the declaration, if they choose to do so.