179 A.D. 13 | N.Y. App. Div. | 1917
This is a suit in equity for a permanent injunction to the game effect as the temporary injunction contained in the injunction order from which the appeal is taken. The plaintiff shows by its complaint and affidavits, among other things, that it is engaged in manufacturing and producing motion picture films and in leasing and selling them; that it has manufactured and produced the motion picture film “ Birth Control ” and has arranged to produce the same at the Park
On the part of the defendant affidavits made by the deputy commissioner of licenses and by others who viewed the photo-play, known as “ Birth Control,” on the afternoon of May 5, 1917, the day before it was to be produced at the Park Theatre,
It is contended in behalf of the respondent that the purpose of the motion picture is to create public sentiment in favor of the repeal of the statute prohibiting the dissemination of information with respect to birth control, and that it has a constitutional right to agitate the repeal of a statute. We are not concerned with the freedom of speech guaranteed by the Constitution (Art. 1, § 8). We have to do with the question
“ The commissioner of licenses shall have cognizance and control of the granting, issuing, transferring, renewing, revoking, suspending and canceling: * * *
“ 4. Of all licenses in relation to theatres and concerts now issued under the provisions of sections fourteen hundred and seventy-three, fourteen hundred and seventy-four, fourteen hundred and seventy-five and fourteen hundred and eighty-three of the Greater New York charter, by the police commissioner. * * *
“ The commissioner, of licenses is hereby vested with all*19 the powers and functions now exercised in relation to licenses by (1) the mayor pursuant to the Code of Ordinances of the City; * * * (4) by the police commissioner in relation to theatres and concerts; * *
By section 31 of article 2 of chapter 3 of the Code of Ordinances of the City of New York, adopted during 1916, the commissioner of licenses was authorized, among other things, to regulate and control all motion-picture theatres, and he is directed to appoint such inspectors as may be necessary to enable him, to carry out the provisions of that article; and by section 41 the inspectors appointed by him are required, among other things, to investigate the character of exhibitions in motion-picture theatres, and to report to the commissioner any offense “ against morality, decency or public welfare committed in said exhibitions.” The form of license granted by the commissioner is not given in the record, but section 2 of article 1 of chapter 3 of the Code of Ordinances provides that said licenses “ shall be uniform and may, in the discretion of the commissioner, contain provisions and conditions which, in his judgment, may be essential for the welfare and benefit of the people of and visitors to the city.” (See Cosby’s Code Ord. [Anno. 1917] pp. 38, 41, 42, 32, 33.) These statutory provisions and ordinances, the validity of which are not and could not well be questioned, necessarily delegate to the commissioner authority to issue and to revoke licenses according to his judgment and discretion, to be exercised, of course, in good faith and impartially and conscientiously according to what he believes to be in the interest of morality or decency or public safety or public welfare. It is not the judgment and discretion of those who are interested in exploiting a film commercially, as is the plaintiff, or of citizens generally, or even the courts, but that of the commissioner only, that is called into action. The commissioner, however, must not abuse the discretion vested in him by acting capriciously or arbitrarily, or on false information and without reasonable ground for apprehending that the public morality or decency or safety or welfare will be endangered; but the extent of inquiry collaterally by the courts with respect to his action is whether there is reasonable ground upon which such apprehension may honestly rest- in the exercise of a fair and legal
It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Clarke, P. J., Smith, Page and Shearn, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.