This court has been specially constituted in accordance with section 266 of the Judicial Code of the United States (Comp. St. § 1243). That section makes it necessary, when the question is presented whether an injunction shall issue restraining the enforcement of any statute of a state by a* state officer, upon the ground of the uneonstitutionality of the statute, that the question raised shall be determined by a court of three judges, of whom at least one shall be a Justice of the Supreme Court or a Judge of the Circuit Court of Appeals.
The court in this case is asked to enjoin the enforcement of an act passed by the General Assembly of the state of Connecticut at its last session, upon the ground that it constitutes an unlawful restraint and burden upon interstate commerce, that its enforcement would abridge the privileges and immunities of citizens of the United States, *717 and would deprive plaintiffs of their property -without due process of law, and deny to plaintiff the equal protection of the laws, all contrary to the provisions of the Constitution of the United States. (
The act complained of is entitled “An act providing for the imposition of a tax on films from which motion pictures are to be exhibited within the state.” It was passed by the General Assembly of Connecticut at its biennial session in 1925. It was approved by the Governor on June 24, 1925, and is chapter 177 of the Laws of 1925. It went into effect on July 1,1925.
Section 1 of the act complained of is as follows: “No person, firm, corporation or other association shall deliver any motion picture film or copy therof for the purpose of exhibiting in this state any motion picture therefrom without having registered the same and paid the tax thereon as required by the provisions of this act. The amount of such tax including tho fee for registration of each such reel of film or copy thereof of one thousand feet or less, shall be ten dollars, and, for each one hundred feet of film in addition to one thousand feet contained in any reel, fifty cents, which amount shall he paid to the tax commissioner at tho time of such registration.”
Section 2 provides in part as follows:
“The provisions hereof shall not be construed to require registration or payment of any tax on reels commonly called news reels and which portray current e.vents. On application, to be made on forms to be preseribed and furnished by the commissioner, he may issue permits for the delivery of, to exhibitors, without payment of any tax, reels of films from which may he shown pictures of a strictly scientific character and intended for the use of the learned professions, and reels for tho exhibition of pictures for tho promotion of educational, charitable, religious and patriotic purposes and for the instruction of employees by employers of labor. ' Each such reel shall bear a seal showing that permission for delivery thereof and exhibition of pictures therefrom ha,s been granted by the state, but any permit so granted may be canceled within the discretion of the commissioner, and, in case of such cancellation, the tax duo thereon shall be paid by the exhibitor thereof. «i The commissioner may require exhibitors to keep such records and render such reports as may he necessary to ascertain whether films from which pictures are or have been exhibited by them respectively have been registered and the tax thereon duly paid. The tax commissioner, by himself or by any person whom he may designate for such purpose, may enter tho place of business of any exhibitor of motion pictures for the purpose of ascertaining whether the provisions of this act have been complied with.”
And section 4 provides in part as follows : “Any person, by himself or as agent or employee of any corporation, company or association, who shall deliver any film or copy thereof in violation of the provisions of this act shall be fined not more than one hundred dollars or imprisoned not more than sixty days or both. Any motion picture operator or exhibitor who shall fail to comply with the regulations of the commissioner authorized by the provisions hereof shall forfeit his license to operate a moving picture machine within this state for a period not exceeding six months. Any motion picture operator who shall exhibit any picture from any film required to be registered as provided herein which has not been so registered- and the tax thereon paid shall be fined not more than one hundred dollars or imprisoned not more than thirty days or both. In ease of a second conviction of any licensed operator for violation of any provision of this act, the license of such operator shall be suspended for a period not exceeding one year.”
The Fox Film Corporation is a New York corporation, with its principal place of business in the city of New York. It appears that all the photoplay negative and positive films produced by it are made in the states of New York and California and are copyrighted. None is made in Connecticut. The plaintiff solicits, through its agents in Connecticut, contracts to exhibit its positive films under contracts which are signed in Connecticut and sent to New York for acceptance by plaintiff, and, when accepted there, returned to the exhibitor in Connecticut. Films sent for exhibition pursuant to these contracts are forwarded from points outside of the state of Connecticut to the branch office of the plaintiff at New Haven, Conn., whence they are delivered to the exhibitor pursuant to such contracts.
The Connecticut act herein involved prohibits the delivery of a film to the exhibitor who has the contract for the first run until the film has been registered and the tax paid.
The American Feature Film Corporation is a Massachusetts corporation, with its principal place of business in the city of Boston. Its business consists in the renting or *718 leasing of photoplays and films from which motion' pictures are to be exhibited. These photoplays and films are not produced by the plaintiff. The plaintiff has a contract with Universal Pictures Corporation, a New York corporation, whose principal office is in New York City, under which contract plaintiff has acquired a franehisé or right to distribute and lease to exhibitors, owners, or operators of theaters, in certain parts of New England, the photoplays produced by the Universal Pictures Corporation. Positive prints of the photoplays covered by this contract are shipped to the plaintiff at Boston, Mass., by the Universal Pictures Corporation from the points of production or laboratories of the Universal Corporation, which points are located outside the states of New England.
The plaintiff asserts it is also engaged in the business of distributing, renting, and leasing to exhibitprs throughout the state of Connecticut motion picture films produced by other than the Universal Pictures Corporation, and has been so engaged during the past 12 years. The business so carried on has been conducted in the manned herein-above described, respecting the pictures produced by the Universal Pictures Corporation and leased by the plaintiff to exhibitors in Connecticut east of the Connecticut river. It is and has been the practice of the plaintiff to enter into contracts with exhibitors operating theaters in the state of Connecticut. Salesmen of the plaintiff solicit in Connecticut contracts with the exhibitors there located. After an exhibitor signs a contract for pictures offered by salesmen of the plaintiff, the contract is mailed to the office of the plaintiff at Boston, Mass., for approval and signature by an officer of the plaintiff at Boston, after which it is mailed from Boston to the exhibitor in Connecticut. In many instances Connecticut exhibitors come to the office of the plaintiff in Boston, see screenings of plaintiff’s pictures in the Boston Office, and Sign in Boston contracts for the exhibition of pictures in their theaters located in Connecticut. In such eases, after signature by the plaintiff, the contract may be handed to the exhibitor in Boston, or it may be mailed subsequently to the exhibitor in Connecticut.
Positive prints of the films contracted to be leased as hereinabove described axe shipped by the plaintiff by express or parcel post from the office of the plaintiff in Boston, Mass., to the exhibitor at his exhibition address in Connecticut. The contracts of the plaintiff provide that the delivery to any common carrier in due time, to be transported to its destination before the showing time and date, shall constitute full delivery by the plaintiff. ■ After the exhibition period has been completed by the exhibitor in Connecticut, the film is shipped by express or parcel post to the plaintiff at its Boston office. The contract which the plaintiff has with its Connecticut exhibitors provides that the exhibitor shall return the film to the plaintiff’s place of business immediately after the exhibition of the film, by first express.
Plaintiff does not carry any stock of films in the state of Connecticut, either positive or negative films, and hás never carried any stock of films at any place in Connecticut. All motion picture films .are and have been shipped by the plaintiff as hereinabove described directly from Boston, for delivery to exhibitors for the purpose of exhibiting motion pictures therefrom in Connecticut, and as above stated immediately after exhibition the motion pictures are and have been returned to the plaintiff at Boston. The foregoing description of the manner in which contracts are negotiated and films are delivered pursuant to such contracts is an accurate description of the manner in which the plaintiff has leased films to exhibitors in Connecticut during the past 12 years.
The above statement as to the manner in which the American Feature Film Company carries on its business in Connecticut is verified by its treasurer. The facts as alleged by the plaintiffs are admitted by the defendants with an exception now to be mentioned. The deputy tax commissioner of the state of Connecticut, in an affidavit filed on behalf of defendants, and he is one of them, says: “Generally speaking, the plaintiff will direct an exhibitor in Connecticut to ship the film after the term of exhibition to another exhibitor within the state in the vicinity, where a like process is gone through.”
This is in flat contradiction to the statement of the treasurer of the American Feature Film Company, and we are of the opinion that the treasurer of the company is better informed as to the manner in which the business is conducted than is the deputy tax commissioner of the state. The treasurer of the company had been connected with the motion picture business for about 12 years, and for the last 7 years had been and still was its treasurer. It may fairly be assumed that he was familiar with the manner in which its business was carried on.
The New York corporation, the Fox Film *719 Corporation, in its bill, states that its contracts with exhibitors in Connecticut are obtained by its salesmen or agents who solicit in that state contracts with exhibitors. After the exhibitor has signed the printed contract in which he agrees to exhibit the copyrighted photoplay at his theater and to pay the specified rental, the contract is forwarded from Connecticut to New York, where, if it is approved, it is signed by an officer of the film corporation. The contract contains a provision stating that it is an application for a contract only, is not to become binding until it has been accepted in writing by an officer of the film corporation, and notice of acceptance has been sent to tlie exhibitor by mail or telegraph.
Pursuant to contracts made as above described, plaintiff either ships from New York directly to the exhibitor in the state of Connecticut the positive prints of the. photo-plays to be exhibited pursuant to said agreements, such shipment being made either by parcel post, by express, or by truck, or such shipment is made by parcel post or express to a branch office of the film corporation in the eify of New Haven, Conn., known as its New Haven exchange, which receives said positive prints from the carrier and makes delivery of the same to the exhibitor, to be exhibited pursuant to the agreement made as aforesaid. In some instances films are delivered at the plaintiff’s branch office in New Haven a few days in advance of the date when the same are to be exhibited, but all films belonging to plaintiff at any time in its branch office at New Haven are films which are on their way from the film corporation’s laboratories outside of the state of Connecticut to the exhibitor in Connecticut, or are films which have been returned by an exhibitor to the branch office for the purpose of either being returned to the film corporation in New York or elsewhere outside the state of Connecticut, or of being delivered by the branch office to another exhibitor.
The complainants’ property rights in their films include the right to use and lease them for lawful purposes, and the Constitution protects these essential attributes of property. No state can make or enforce any law which shall deprive any person of property without duo process of law. A law which deprives the owner of property of the' power to make proper contracts respecting it, and to lease it, is obnoxious and invalid under the Fourteenth Amendment, unless the restrictions imposed are such as the state may lawfully impose in the exercise of its police powers. Holden v. Hardy,
It is said that the statute imposes an arbitrary and unjust tax and is therefore illegal. If, for the purpose of the argument, it be assumed to be illegal, and the illegality of the tax is all that is involved in the case, the complainants would have no right to invoke the equitable jurisdiction of this court. If the tax is invalid, they wonld have a complete and ample remedy at law. They might pay the amount of the tax under protest and at once sue for and recover it back in an action at law. An injunction bill cannot be maintained in equity to restrain the collection of a tax on the sole ground of its illegality. It must present a case which falls within some recognized head of the equity jurisdiction. This was decided as early as the days of Chancellor Kent in Mooers v. Smedley (N. Y.)
But that is not all there is in tMs ease, inasmuch as it is provided in section 4 that any person who delivers any film or copy thereof, in violation of the provisions of the act, “shall be fined not more than one hundred dollars or imprisoned not more than sixty days or both.” As a general rule, a court of chancery has no power to restrain criminal proceedings, unless they are instituted by a party to a suit already pending before it, and to try the same right that is in issue there. In re Sawyer,
The question whether a law which exacts money from one conducting a business is enacted in the exercise of the taxing power of the state or of the police power does not depend upon whether it is called a “tax” or a license fee. It depends upon whether the primary purpose is to raise revenue or to regulate an industry. If the primary purpose is regulation, it is enacted under the police power, whether it is called a license or a tax. A “tax” may be imposed to discourage or to regulate a business, and when so imposed it involves an exercise of the police power.
In Cooley on Taxation (3d Ed.) vol. 2, p. 1127, it is said: “If, by the common understanding and general custom of the country, a particular duty is regarded as being imposed upon certain individuals, not as their, proportionate share in the burdens oi government, but because of some special relation to property peculiarly located, or to business peculiarly troublesome or dangerous, so that a requirement that the duty shall be performed by such individuals is usually regarded as only in the nature of regulation of relative obligations and duties through the neighborhood or the municipality, there is no sufficient reason why this may not be considered a mere police regulation, though the proceedings assume the form of taxation, and are even designated by that name.”
It is not a valid objection that a law enacted in the exercise of the police power imposes a tax for revenue. That it fulfills two functions — that of a. police regulation and that of raising revenue — makes it none the less legal. • The business is more easily regulated where a license is imposed upon those who conduct it. Gundling v. Chicago,
In general it may be said that each state may determine for itself, in the exercise of its police power, regulations respecting the carrying on of a lawful trade or business or occupation within its boundaries, and, “unless the regulations are so utterly unreasonable and extravagant in their nature and purpose that the property and personal rights of the citizen are unnecessarily, and in a manner wholly arbitrary, interfered with or destroyed without due process of law, they do not extend beyond the power of the state to pass, and they form no subject for federal interference.” Gundling v. Chicago, supra.
The question here raised is a serious and important one. The motion picture industry is understood to be one of the most highly organized and best financed industries in the United States. The motion picture business is of recent origin, and its capacity for good, as well as for evil, is immense. It is an instrument of education, and the public welfare demands that it shall be kept clean and its influence tend to promote what is good and not what is evil. It may be an inestimable asset for human improvement or deterioration as the case may be. This has led certain states, • in the exercise of the police power, to legislate on this subject by passing laws to control or supervise the exhibition of moving pictures. New York, Pennsylvania, Ohio, Maryland, Kansas, Florida, Virginia, and Connecticut have passed statutes with this end 'in view. The power is inherent in the state governments, within constitutional limits to legislate to promote the order, safety, health, morals, and general welfare of society. It is an attribute of sovereignty, and corresponds to the right of self-preservation in the individual. The power is so essential to government that it cannot be abdicated or bargained away, being inalienable even by express grant, and all contract and property rights are held subject to its fair exercise. Atlantic Coast Line R. Co. v. Goldsboro,
And the Supreme Court, in Barbier v. Connolly,
There is no 'doubt that the police power of a state extends to the protection of the public morals by regulating or preventing such acts, practices, and occupations as are immoral or indecent, or which have a tendency to promote immorality or indecency. In Cooley’s Constitutional Limitations, that eminent jurist stated the law as follows: “The state has also a right to determine what employments shall be permitted, and to .forbid those which are deemed prejudicial to the public good. Under this right it forbids the keeping of gambling houses, and other places where games of chance or skill are played for money, the keeping for sale of indecent books and pictures, the keeping of houses of prostitution and the resort thereto, and in some states the sale of intoxicating drinks as a beverage. These several kinds of business have a tendency which is injurious and demoralizing; and this tendency is recognized even in states where they are not forbidden, and they are subjected to regulations with a view to reducing their evils to a minimum.”
That the Connecticut statute is enacted in the exercise of the police power is made clear by the provisions found in section 2, hereinbefore set forth, and which authorizes the commissioner to issue permits for the delivery of certain classes of films without the payment of any fee or tax, and which confers power upon him to cancel permits issued for any film which he finds “to be immoral or of a character to offend the racial or religious sensibilities of any element of society.”
The unconstitutionality of a state law is not of itself ground for equitable relief in the courts of the United States. But it is unquestionable that the jurisdiction of this court can and will be exercised to enjoin the enforcement of a law enacted by the General Assembly of the state of Connecticut in any ease in which it appeal's that the law violates the Constitution of the United States, and its enforcement would work irremediable injuries for which there is no adequate and complete remedy at law. Terrace v. Thompson,
The right to enjoin state officers from enforcing a state statute, enacted in violation of the Constitution of the United States, was determined a hundred years ago in Osborn v. United States Bank,
Whether the statute complained of does violate the Constitution of the United States is the serious question which the court must determine. And in deciding that question it is to be kept in mind that a statute will be upheld by the courts unless it is clearly shown to be unconstitutional. The statute is regarded as prima facie valid, and the burden to prove the contrary rests on those who challenge its constitutionality. Ex parte Young,
The business in which the plaintiffs in these two suits are engaged is clearly interstate commerce. That is determined for us by the decision in Binderup v. Pathé Exchange,
Interstate commerce begins when the articles to be carried are committed to a carrier for transportation to the state of its destination or started on their ultimate passage (Coe v. Errol,
The Constitution gives to Congress the right to regulate commerce between the states. It does not, however, define what the term “commerce” means or includes, but, as used, it comprehends intercourse for purposes of trade, and includes among other incidents the transportation of commodities from one state into another state; and the general rule is that goods coming into a state from a foreign state are free from state interference so long as they remain in the original unbroken package. May v. New Orleans,
In Brown v. Maryland,
Notwithstanding the Chief Justice’s opinion that the principles laid down in that case applied equally to importations from foreign countries and those coming from a state, the Supreme Court in subsequent decisions has departed therefrom.
In Peirce v. New Hampshire,
The Supreme Court affirmed tho ease, and Chief Justice Taney, in his separate opinion, said: “Upon tho whole, therefore, the law of New Hampshire is, in my judgment, a valid one. For, although the gin sold was an import; from another state, and Congress has clearly the power to regulate such importations, under the grant of power to regulate commerce among the several states, yet, as Congress has made no regulation on the subject, the traffic in the article may be lawfully regulated by the state as soon as it is landed in its territory, and a tax imposed upon it, or a license required, or the sale altogether prohibited, according to the policy which the state may suppose to be its interest or duty to pursue.”
Peirce v. New Hampshire was overruled in Leisy v. Hardin, hereinafter referred to.
In Woodruff v. Parham,
In 1890, in Leisy v. Hardin,
We are satisfied that the Connecticut statute is not void as constituting a regulation of interstate commerce within the implied prohibition of the Constitution of the United States. The statute does not in terms legislate respecting importations into Connecticut of films brought from outside the state. It operates alike on films-brought into the state and those produced in the state. It does not prohibit the bring *724 ing into the state of such films or prohibit or regulate the sale of such films. It is concerned only with the public exhibition of moving pictures within the state. Whatever burden or restriction the law imposes is purely incidental in so far as interstate commerce is concerned.
It is undoubtedly true that a state cannot, under cover of exercising its police power, directly regulate or burden interstate commerce. But a police regulation which has real relation to the proper protection of the people, and is reasonable in its terms, and does not conflict with legislation enacted by Congress pursuant to its constitutional authority, is not to be held unconstitutional because it incidentally affects interstate commerce. Savage v. Jones,
The exercise by the states of the power to regulate moving picture exhibitions has been sustained'by the Supreme Court in a number of eases. Mutual Film Corporation v. Ohio Industrial Commission,
It is argued that the Connecticut statute is void because it constitutes an unlawful restraint upon interstate commerce. A state is without power to regulate, prohibit, or burden interstate commerce. It can no more interfere with commerce which is interstate than it ean with that which is foreign. Railroad Co. v. Husen,
But it is also settled that to bring the ease within the rule above stated the interference with interstate commerce must be direet and substantial and not merely incidental. An illustration of this is found in Hendrick v. Maryland,
In Mutual Film Corporation v. Industrial Commission of Ohio,
“It is claimed that the statute violates the commerce clause. Substantially all the films supplied by complainants are manufactured outside the state of Ohio. The films are brought into the state in. shipping packages containing one or more tin boxes in each of which is a film wrapped on a core. When the packages reach their destination in the state, they are opened and the films *725 taken off the shipping cores and put on reels, and then placed in the stock of an exchange. The reels are then distributed among the exhibitors and passed from one to another for purposes of public exhibition. Some of these films circulate wholly within Ohio until worn out, while some remain there only for brief periods. It is to the films so placed on reels that the statute applies. The statute in terms limits the duty of the hoard of censors to examination of ‘all motion picture films to be publicly exhibited and displayed in the state of Ohio.’ They must he submitted to the board before they are delivered to exhibitors for exhibition, and the fees charged are fixed by uniform rates according to the length of ‘each reel of film.’ Section 3 of act, supra. We are therefore not concerned with shipping packages which pass into and out of the state in their original form. It cannot bo said that the act imposes any sort of burden upon .the original shipping packages; for, when the packages are broken and their contents placed upon reels, the films have lost their distinctive character as articles of interstate commerce. May v. New Orleans,378 U. S. 496 , 508,20 S. Ct. 976 ,44 L. Ed. 1165 . * * Above all, the films that are open to action of the board are subject to uniform treatment and charge, no matter in what state they originated or who may own or supply or use them in Ohio and whether such persons be resident therein or not. It is in vain then to urge that the statute violates the commerce clause.”
The case went to the Supreme Court of the United Stales, whore it was affirmed in
In the instant ease, films are shipped from Massachusetts and New York into Connecticut to exhibitors in that state, and, after the expiration of the exhibition period agreed upon, are shipped back by the exhibitor, by express or parcel post, to Boston or New York as the case may be and, if the Ohio statute did not constitute a restraint on interstate commerce, it is difficult to maintain that the Connecticut statute is void on the same ground that was unsuccessfully urged upon the court in the Ohio case.
In Robbins v. Shelby County Taxing District,
He added: “Interstate commerce cannot be taxed at all, even though the same amount of tax should be laid on domestic commerce, or that which is carried on solely within the state.”
The court in that ease held that a Tennessee statute was void which enacted that all drummers and all persons not having a regular licensed house of business in the taxing district of Shelby county, offering for sale, or selling goods, wares, or merchandise therein by sample, should be required to pay $10 per week or $25 per month for such privilege.
It must bo admitted that, if Connecticut had exacted a license fee from the agents sent by the plaintiffs into the state to solicit contracts with exhibitors in that state for the exhibition of their photoplays, exaction would be invalid. It would be a direct burden upon interstate commerce, which the state clearly could not impose. Ozark Pipe Line Corporation v. Monier,
Whether the statute be regarded as a revenue measure, a police regulation, or both, we regard it as constitutional. It does not prohibit the bringing of moving picture -films into Connecticut, and it only incidentally affects commerce between the states.
Licenses are used for purposes of taxation, regulation, or prohibition. 2 Cooley on Taxation (3d Ed.) 1133. Whether in a particular ease they are resorted to in the exercise of the taxing or the police power of the state depends upon the dominant purpose of the Legislature in enacting the law. State v. Murphy,
But we are told that the censorship provisions in the act go beyond anything as yet upheld by the courts, vest arbitrary and uncontrolled power in the commissioner, and are void under the .Fourteenth Amendment of the United States.
Does the statute invest the commissioner with arbitrary power? Does it fail to establish a standard by which his duty or discretion is defined? Is his power to revoke registration and to cancel the permit unlimited?
The act does not require either registration of the film or the payment of a tax in all cases, but only in certain specified eases. The provisions of the act in section 2 declare that the act shall not be construed to require registration or payment of a tax on certain specified reels — reels which portray current events, or those of a strictly scientific character and intended for the use of the learned professions, and reels for the promotion of educational, charitable, religious, and patriotic purposes, and for the instruction of employees by the employers of labor. On application made to the commissioner, he is to issue permits for the delivery of such films without the payment of any tax. Then it is' provided that “any permit so granted may be canceled within the discretion of the commissioner, and, in case of such cancellation, the tax due thereon shall be paid by the exhibitor.” The meaning of *727 this provision seems perfectly clear. It is that, if a permit is' issued without the payment of the tax, and upon the understanding that the particular film is of the class exempt from the tax, and the commissioner ascertains later that it is not within the exempt class, he may cancel the permit, and then the tax due thereon is to be paid by ihe exhibitor. This does not clothe the commissioner with arbitrary power. One is clothed with r rbitrary power only when the law invests him with power to act according to his own will or pleasure, capriciously, and without adequate determining principle. The act involved herein does not permit such action, but adequately indicates the determining principle by which his action is to be controlled.
The use of the words “within the discretion of the commission” does not import absolute and capricious discretion. It is an administrative discretion, and it requires him to satisfy himself that such a state of facts exists that under the statute a reel is of “strictly scientific character” or is “for the promotion of educational, charitable, religious, and patriotic purposes and for the instruction of employees by employers o£ labor.” In deciding that question, he necessarily exercises discretion, and judgment. It can be decided in no other way. And in doing so he does not have unlimited license to act, irrespective of restraint. He musí act in conformity with the intent and provisions of the statute.
Discretion is defined in the Standard .Dictionary as follows: “(3) Law. The act or the liberty of deciding according’ to the principles of justice and one’s ideas of what is right and proper under the circumstances, without willfulness or favor.”
The discretion given to the commissioner only relates to the execution of the act which is complete in all its parts. The act is specific as to the kind of reels which must be registered and upon which a tax must be paid. /Whether a film belongs or not to the class of films which must be registered, and must pay the tax, is a question of fact.^The function of the commissioner is limited to determining whether a film comes within the class that must be registered and must pay the tax. In determining that question, he must of course exercise his discretion or his judgment. It would seem that a Legislature may consistently with the federal Constitution delegate to an administrative officer or officers the determination of such a question. Douglas v. Noble,
In Red C. Oil Mfg. Co. v. Board of Agriculture of North Carolina,
If, however, wo are mistaken in thinking the above portion of the act valid, it would not impair the rest of the act. For the law is well established that any independent provision may be eliminated if that which is left is fully operative as a law, unless it appears from a consideration of the sections that the Legislature would not have enacted that which is within independently of that beyond its power. Reagan v. Farmers’ Loan & Trust Co.,
The act contains one other provision on this subject which must he considered. It states: “In the event that any film shall have been registered which the commissioner may find to be immoral or of a character to offend the racial or religious sensibilities of any element of society, he may revoke such registration by notice in writing to any exhibitor, and in case of such revocation the amount of tax paid thereon shall be forfeited to the state.”
Under this provision the commissioner certainly is not clothed with arbitrary power. His authority to revoke exists only if the film is immoral or of a character to offend the “racial or religious sensibilities of any
*728
element o£ society,” and not otherwise. If the” commissioner, acting under either provision of section 2, abuses his discretion, and acts in an arbitrary and capricious manner, and contrary to the plain intent of the statute, there remains the right to appeal to the courts which exists under the general principles of jurisprudence. As was said in Bradley v. Richmond,
In our opinion the statute does not invest the commissioner with arbitrary power. But, if we were of the contrary opinion, and thought that the discretion with which the commissioner is invested under the provision authorizing the cancellation of permits issued for the exhibition of scientific, educational, charitable, religious, and patriotic films, did invest him with arbitrary power, we do not think the plaintiffs herein are in a position to raise 'the question in these suits. There is no allegation in the bills that permits have been issued to plaintiffs for the exhibition of films of the class above mentioned, which permits the commissioner has canceled or is now threatening to cancel in the exercise of the discretion with which he is invested. And there is not even an allegation that plaintiffs have produced or have in their possession films of the class above described, and which they desire to bring into the state of Connecticut. As the plaintiffs do not show that they are in any wise affected by the provision cited, the objection raised as to its unconstitutionality is really not before the court and would not ordinarily now be determined. Chicago Board of Trade v. Olsen,
Eor the reasons stated, the prayers of the bill that an injunction issue restraining the defendants from enforcing or attempting to enforce the statute of Connecticut enacted in 1925, “providing for the imposition of a tax on films from which motion pictures are to be exhibited within the state,” is denied in each case, and the bills are dismissed.