247 F. 231 | N.D. Ill. | 1917
The second deputy, Mr. Funkhouser, has very frankly, fully, and presumably fairly stated in his affidavit, which has been filed, what he found with reference to this film. If he had found that it was immoral, that it was obscene of otherwise objectionable under the ordinance, I should be very slow to disturb his conclusion upon that proposition. I would not. feel that it was the function of the court to substitute its judgment for the judgment of the functionary created by law to pass thereon; but yet I may, in making that statement, be according to him a larger power and a greater conclusiveness of his finding than is warranted by law; but, if he had so found, I would, as at present advised, be very slow to disturb this finding, in the absence of evidence that arbitrarily, fraudulently, or corruptly, or with absolute want of reason, he had refused a permit. But he frankly says that the motion picture film is not of a character which would be regarded ás immoral or obscene or otherwise objectionable under said ordinance, if exhibited to adults only. That conclusion he supplements by stating more fully in his affidavit the nature of the picture. While he concludes that it would be objectionable under the ordinance if it were exhibited to children under the age of 21 years, yet he does not stop with that. He'states wherein the impropriety exists, and very frankly points out what are the facts from which he concludes that as to children it does violate the ordinance.
From a perusal of his affidavit I find and conclude there is nothing that he stated there which, under the ordinance, would be considered immoral, obscene, or unlawful, or otherwise objectionable, but that the objection consists wholly in the horrifying nature of the tortures which are portrayed as inflicted upon the hero of the play, and his ultimate shooting by a firing squad. Now, I do not believe that from, his own portrayal of the play, on his own depicting in his affidavit of the facts, upon which he bases his conclusion, his action is within the authority of the ordinance.
I do not know how far the court, in passing upon a preliminary motion of this kind, can rely on a mere statement, not made in the form of affidavits, and I do not consider them in passing upon this motion for preliminary injunction. I am satisfied, from the showing here, that the statement made in the affidavit is a truthful and sincere statement of Mr. Funkhouser, and on the facts of which as there stated he recommended refusal of the permit, and that accordingly the chief of police refused the permit upon grounds wholly outside of those enumerated in the ordinance, as grounds on which alone there is any power or right to refuse the permit.
Under these circumstances, I believe the preliminary injunction prayed for should be granted.