215 F. 138 | N.D. Ohio | 1914
The ultimate question in these cases is whether a state has power to regulate the public exhibition of motion pictures. The statement of the question would seem to present a simple problem, and yet it is earnestly contended that the General Assembly of Ohio has through its enactment violated grave constitutional guaranties. The contention is not that persons displaying improper pictures may not be punished after the fact; but it is that the display itself cannot be prevented. This is not a denial of the existence of evil practices growing out of this class of public exhibitions; it is a challenge of the power of the state to avoid such practices through the exercise of any measures of prevention. The issue then is one of remedy, and its nature is seen in the difference between the avoidance and the practical endurance of such evils as may exist.
The complainant in each case is a corporation, one having been organized under the laws of Ohio and the other under the laws of Virginia, and each is engaged in business as a distributor of moving picture films. The defendants in each case are the same; the Industrial Commission of Ohio, and the board of censors of motion picture films, with their respective members. The former board was created under an act approved March 18, 1913 (103 Ohio Daws, 95-110), and the latter under an act entitled “An act providing a board to censor motion picture films and prescribing the duties and powers of the same,” approved May 3, 1913 (103 Ohio Laws, 399-401). The first act is not directly involved, except a single section to which we shall later have occasion to allude; and the body of the second act is hereinafter set out. The complainants seek to enjoin the enforcement of the second act, and this accounts for the presence of three judges (Judicial Code, § 266; Act March 3, 1911, c. 231, 36 Stat. 1162 [U. S. Comp. St. Supp. 1911, p. 236]). The bills are in the usual form and substantially alike. They will be sufficiently understood by setting out the substance of their pertinent averments, in connection with our consideration of the objections urged against the validity of the second act.
“A court is not authorized to adjudge a statute unconstitutional whore the question of its constitutionality is at all doubtful.” Board of Health v. Green-ville, supra, 86 Ohio St. at page 20, 98 N. K. at page 1021 (Ann. Cas. 19181), 52).
Having these principles in mind, we shall consider as briefly as we may the objections urged against the constitutional validity of the statute.
“That the first eight articles of the amendments to the Constitution have reference to powers exercised by the government of the United States and not to those of the states.”
And see Lloyd v. Dollison, 194 U. S. 445, 447, 24 Sup. Ct. 703, 48 L. Ed. 1062. Recognizing the controlling force of this rule, complainants associate the first amendment with the clause of the fourteenth amendment, providing:
“No state shall make or enforce any law which shall abridge the privileges or-immunities of citizens of the United States.”
“Every citizen may freely speak, write, and publish Ms sentiments on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press. * * * ”
It is claimed, as before pointed out, that this provision contemplates legislation providing for punishment after an act forbidden is committed, but that such an act cannot be prevented. Thus decisions which establish the right simply to punish—such, for instance, as People v. Most, 171 N. Y. 423, 64 N. E. 175, 58 L. R. A. 509, or Tyomies Pub. Co. v. U. S. of America, 211 Fed. 385, decided March 3, 1914 (C. C. A. 6th Cir.)—are not questioned. It is urged on behalf of'the state that the question so presented is met by the rule that the corporate complainants are not citizens within the true meaning of the guaranties contained either in the clause of the fourteenth amendment or of the Ohio Constitution, before quoted. Blake v. McClung, 172 U. S. 239, 259, 19 Sup. Ct. 165, 43 L. Ed. 432; Western Turf Ass’n v. Greenberg, 204 U. S. 359, 363, 27 Sup. Ct. 384, 51 L. Ed. 520; Selover, Bates & Co. v. Walsh, 226 U. S. 112, 126, 33 Sup. Ct. 69, 57 L. Ed. 146; Orient Insurance Co. v. Daggs, 172 U. S. 557, 566, 19 Sup. Ct. 281, 43 L. Ed. 552. But since these decisions did not involve the Ohio guaranty, we prefer to consider the statute upon its merits.
It is averred in thé bills:
“That the motion pictures, the films for which are purchased, sold and leased by complainant, depict dramatizations of standard novels and short stories and the performance of standard dramas. * * * That they also exMbit many subjects of scientific interest, such as showing the various uses that may be made of electricity, showing the manner of development and growth of various forms of animal and plant life, giving pictures of trips of exploration * * * and pictures of other subjects covering a range as wide as life itself, which are educational, instructive, and amusing. That one of the most important classes of subjects exhibited in complainant’s motion picture films is the depicting of events * * * described in words and by photographs in newspapers, weekly periodicals, magazines, and other publications; * * * this regular furnishing and publishing of news through the medium of motion pictures being done under the name of the ‘Mutual Weekly.’ ”
It is contended that thq Mutual Weekly, so described, is as .much a press enterprise as are any of the standard magazines, periodicals, and newspapers; and that, unless it can be safely affirmed that the state may provide for the censoring of newspapers and magazines, the present statute cannot be sustained. We cannot believe that this question is in reality involved. Counsel overlook a broad distinction between the things they describe in their bills and the objects with which they make comparison. Analysis of the bills and affidavits, not to speak of familiar knowledge, serves to show that an exhibition of these motion picture films, with its inclosure, surroundings, and attendance, has all the material attributes of an ordinary theater. The state of Ohio had prior to the enactment in question made detailed statutory provisions respecting the construction and maintenance of buildings in which mov
If this interpretation of the statute is at all admissible, it is a mistake to ascribe to the Legislature a purpose to do anything inimical to the principle of freedom of the press. It was seeking to accomplish a totally different object. It was apparently providing that the most salutary principles of a public license system should be applied to the use of this new instrumentality in places of amusement. It can make no difference what its use achieves or constitutes, whether it be a drama, a publication, or even more. It is the manner and the place of such use that must concern the lawmaker. It is to be remembered, too, that the guaranty here invoked, like other guaranteed rights and privileges, is to be reasonably restricted and so reconciled with the exercise of the fundamental powers and duties of the state in relation to the public at large. Counsel’s argument assumes a degree of repugnancy between such privileges and powers which in logical effect would unnecessarily sacrifice the latter; for it denies to the state the right simply to protect the public against immoral and harmful acts. As Mr. Justice Field said, in Crowley v. Christensen, 137 U. S. 86, 89, 11 Sup. Ct. 13, 15 (34 L. Ed. 620):
“Even liberty itself, the greatest of all rights, Is not unrestricted license to act according to one’s own will.”
And see Board of Health v. Greenville, supra, 86 Ohio St. at page 22, 98 N. E. at page 1022 (Aun. Cas. 1913D, 52). It was never supposed there was any repugnancy between the legislative power to regulate theaters and the guaranty of freedom of the press. Complainants’ counsel place special reliance upon a decision, which, when read in connection with a later decision of the same court, presents a good illustration of this. We allude to Dailey v. Superior Court, 112 Cal. 94, 44 Pac. 458, 32 L. R. A. 273, 53 Am. St. Rep. 160, where it was
“Tlie state, in the exercise of its police power, has the unquestioned right to regulate these places of public amusement, and it is in the exercise of this power, and not at all as having to do with civil rights, that the act in question was upheld in 140 Oal. (and 73 Pac.), and its constitutionality is here again affirmed.”
And in Laurelle v. Bush, 17 Cal. App. 409, 119 Pac. 953, an ordinance regulating moving pictures, and making it unlawful for any person to conduct or carry on a moving picture exhibition, without first applying for and receiving a permit, was sustained; and the appellate court, like the Supreme Court in the Greenberg Case, did not find it necessary even to cite the decision in Dailey v. Superior Court. The reason for this, no doubt, was that the judiciary does not, while the Legislature does, possess authority to regulate theaters; it is not meant by this either to signify approval or disapproval of the decision in Dailey v. Superior Court. Commonwealth v. McGann, 213 Mass. 213, 215, 100 N. E. 355; Patterson v. Colorado, 205 U. S. 454, 462, 27 Sup. Ct. 556, 51 L. Ed. 879, 10 Anri. Cas. 689. We need not dwell upon the familiar power of a state to provide for the granting or withholding of licenses as a means of regulating theatrical performances; it is sufficient to say that any reasonable exaction or denial of such licenses is universally regarded as a proper exercise of the police power. Marmet v. State, 45 Ohio St. 63, 72, 73, 12 N. E. 463; Baker v. Cincinnati, 11 Ohio St. 534; Commonwealth v. McGann, supra, 213 Mass. 213, 216, 100 N. E. 355 ; People v. Steele, 231 Ill. 340, 344, 345;
‘"The act was to protect the people ot: Baltimore City against .the consequences resulting from the work of incompetent moving picture machine operators and was passed in the exercise ot' the police power of the state, and does nor, in our opinion, violate either the federal or state Constitution.”
In Block v. City of Chicago, 239 Ill. 251, 87 N. E. 1011, 130 Am. St. Rep. 219, an ordinance was upheld, which required those engaged in exhibiting moving pictures to secure a permit for the exhibition of such pictures, and forbade the chief of police to issue such a permit for the exhibition of any obscene or immoral pictures, though it required him to issue a permit without fee or charge respecting pictures not of that character. To the same effect are the decisions in Laurelle v. Bush, supra; Higgins v. Lacroix, 119 Minn. 145, 150, 151, 137 N. W. 417, 41 L. R. A. (N. S.) 737; Dreyfus v. City of Montgomery, 4 Ala. App. 270, 58 South. 730, 732. See, also, State v. Morris, 1 Boyce (Del.) 330, 76 Atl. 479; People v. Gaynor, 77 Misc. Rep. 576, 137 N. Y. Supp. 196, 199; McKenzie v. McClellan, 62 Misc. Rep. 342, 116 N. Y. Supp. 645, 646. It results that so far as the foregoing constitutional provisions, either federal or state, are concerned, the statute is sustainable as a, license measure, and so, as to the claims thus far considered, is not an undue interference with any right of complainants.
3. It is said the statute is not sustainable as an inspection law under section 10, art. 1, of the federal Constitution. It is to be observed that this provision forbids a state, without the consent of Congress, to lay imposts or duties on imports or exports except as may be absolutely necessary for executing its inspection laws, and the net produce of such duties and imposts shall be for the use of the federal treasury. The objection is aimed against the fees authorized by the present statute and the requirement that they shall be paid into the state treasury. This does not seem to be important. In the first place, the word “imports,” as used in the Constitution, does not apply to property brought from one state into another, but only to imports from foreign countries. Brown v. Houston, 114 U. S. 622, 628, 5 Sup. Ct. 1091, 29 L. Ed. 257; Woodruff v Parham, 8 Wall. 123,-136, 19 L. Ed. 382. _ In the next place, if films should be imported from foreign countries into Ohio, it could not now be presumed that the authorized fees would be more than are absolutely necessary for executing the law. And, as Mr. Chief Justice Fuller said in Patapsco Guano Co. v. North Carolina, supra, 171 U. S. at page 354, 18 Sup. Ct. at page 865 (43 L. Ed. 191):
“If the receipts are found to average largely more than enough to pay the expenses, the presumption would 'be that the Legislature would moderate the charge.”
See, also, Red “C” Oil Co. v. North Carolina, 222 U. S. 380, 393, 32 Sup. Ct. 152, 56 L. Ed. 240.
4. It is argued that the statute delegates legislative power to the hoard of censors in violation of section 1, art. 2, of the Ohio Constitution. The theory is that the statute fixes no definite standard for determining what films shall be approved or disapproved by the board; but that this is left to its judgment and discretion and so in its essence is legislative. The language of section 4, supra, is:
“Only such, films as are in the Judgment and discretion of the board of censors of a moral, educational or amusing and harmless character shall be passed and approved by such board.”
It may be conceded that this language might have been extended by descriptive and illustrative words, and yet it is not ^at all certain that the act would have been any more intelligible than it is now. It would probably have been more restrictive, and its purposes more easily thwarted. In view of the range of subjects which complainants claim to have already compassed, not to speak of the natural development that will ensue, it would be next to impossible to devise language that would be at once comprehensive and automatic. Is it correct, then, to say that the enacted standard is insufficient? It seems to us to find analogy in many subjects of approved legislation. Thus, boards of health have been accustomed to prosecute inquiries into and to determine the facts of the existence or not of nuisances and other local conditions injurious to health. Boards and officers are frequently employed to inspect and pass upon private buildings with a view of having changes made as respects sanitary objects, fire prevention, and the like. These are but some of the illustrations that are adducible to show not only the necessity but the practice of lodging discretion in subordinate agencies in the interest and for the protection of the public. Government administration and regulation could not be adequately carried on, or even rationally exist, if everything of a subordinate and yet injurious character had to be passed upon by the legislative bodies themselves. Inevitably, then, some discretion must be lodged somewhere ; and where could it be more appropriately placed than in the administrative boards created and selected for the execution of such laws? It was said by Chief Justice Cartwright, in Block v. City of Chicago, supra, 239 Ill. at page 258, 263, 87 N. E. at page 1013, 1015 (130 Am. St. Rep. 219), when considering an ordinance which prohibited the exhibition of “immoral or obscene” moving pictures:
“Tlie purpose of the ordinance is to secure decency and morality in the moving picture business, and that purpose falls within the police power. It is designed as a precautionary measure to prevent exhibitions criminal in their .nature and forbidden by the laws. * * * The audiences include those classes whose age, education, and situation in life specially entitle them to protection against the evil influence of obscene and immoral representations.”
“Manifestly it would be impossible to specify in an ordinance every picture or particular variety of picture wMeli would be considered immoral or obscene, and no definition could be formulated which would afford a better standard than the words of the ordinance.”
We think the present question is in principle resolved unfavorably to complainants by the decision in Board of Health v. Greenville, supra. There the State Board of Health was authorized to determine whether the contamination of any stream amounted to a “public nuisance detrimental to public health or comfort”; and upon the board’s affirmative finding, after approval by the Governor and Attorney General, a municipality or person could be required to install works “satisfactory to the State Board of Health for purifying” any such stream. See, also, Fairview v. Giffee, 73 Ohio St. 183, 189, 190, 76 N. E. 865; Rose v. Baxter, 7 Ohio N. P. (N. S.) 132, affirmed without report, 81-Ohio St. 522, 91 N. E. 1138; Theobald v. State, 30 Ohio Cir. Ct. R. 336, 338, 339. In this latter case the court upheld the law as amended, which, in its original form, had been condemned by the Supreme Court in Harmon v. State, 66 Ohio St. 249, 64 N. E. 117, 58 L. R. A. 618. We think the standard fixed by the statute now under consideration will bear favorable comparison with that prescribed by the amended act passed upon in the Theobald Case, and that the instant cases are distinguishable from Harmon v. State for that reason. We are thus constrained to believe that, under the present rule of decision of Ohio alone, the primary standard here prescribed is sufficient to avoid the charge that legislative power is delegated. C. W. & Z. Railroad Co. v. Commissioners of Clinton County, 1 Ohio St. 77, 88, 89, per Ranney, J. And our views as to the sufficiency of the primary standard are strengthened by decisions of the Supreme Court of the United States. Red “C” Oil Co. v. North Carolina, supra, 222 U. S. 394, 32 Sup. Ct. 152, 56 L. Ed. 240; Monongahela Bridge v. United States, 216 U. S. 177, 192, 193, 30 Sup. Ct. 356, 54 L. Ed. 435; Int. Com. Comm. v. Goodrich Transit Co., 224 U. S. 194, 214, 32 Sup. Ct. 436, 56 L. Ed. 729; Jacobson v. Massachusetts, 197 U. S. 11, 27, 25 Sup. Ct. 358, 49 L. Ed. 643, 3 Ann. Cas. 765; Union Bridge Co. v. United States, 204 U. S. 364, 382, 27 Sup. Ct. 367, 51 L. Ed. 523.
As to the suggestion that the board of censors is invested with arbitrary power, it is sufficient to say that under section 8 of the act, supra, provision is made for reviewing any order of the board in the Supreme Court of the state. This remedy was given by creating in any dissatisfied person in interest the same right of review that is given in respect of orders of the Industrial Commission. Section 38 of the act creating that body authorizes an action to be commenced in the Supreme Court of the state to set aside, vacate, or amend an order that is either unreasonable or unlawful; and the Supreme Court is invested with “such revisory jurisdiction of the proceedings of administrative officers as may be conferred by law.” Article 4, § 2, Ohio Const.
“Section 1. There is created under the authority and supervision of the industrial commission of Ohio a board of censors of motion picture films. * * *
“Sec. 2. * * * Each member of th'e board of censors shall receive an annual salary of one thousand five hundred dollars per year. Such salary and expenses shall in no case exceed the fees paid to the Ohio board of censors for examination and approval of motion picture films. The members of the board shall be considered as employes of the industrial commission and shall be paid as other employes of such commission are paid. The industrial commission shall appoint such other assistants as may be necessary to carry on the work of the board.
“Sec. 3. It shall be the duty of the board of censors to examine and censor as herein provided, all motion picture films to be publicly exhibited and displayed in the state of Ohio. Such films shall be submitted to the board before they shall be delivered to the exhibitor for exhibition. The board shall charge a fee of one ($1.00) dollar for each reel of film to be censored which does not exceed one thousand (1,000) lineal feet; for any reel of film exceeding one thousand (1,000) lineal feet, the sum of two ($2.00) dollars shall be charged. All moneys so received shall be paid each week into the state treasury to the credit of the general revenue fund.
“Sec. 4. Only such films as are in the judgment and discretion of the board of censors of a moral, educational or amusing and harmless character shall be passed and approved by such board. They shall be stamped or designated in an appropriate manner and consecutively numbered. Before any motion picture film shall be publicly exhibited, there shall be projected upon the screen the words ‘Approved by the Ohio Board of Censors,’ and the number of the film.
“Sec. 5. The board of censors may work in conjunction with any censor board or boards of legal status of other states as a censor congress and the action of such congress in approving or rejecting films shall be considered as the action of the board and all films passed, approved, stamped and numbered by such congress, when the fees therefor have been paid to the Ohio board, shall be considered approved by such board.
“Sec. 6. Ninety days after this act shall take effect no films may be publicly shown or exhibited within the state of Ohio unless they have been passed and approved by the board or the censor congress and stamped and numbered by such board, or congress, as provided for herein.
“Sec. 7. Any person, firm or corporation who shall publicly exhibit or show any motion picture within the state of Ohio unless it shall have been passed, approved and stamped by the Ohio board of censors or the congress of censors shall upon conviction thereof, be fined not less than twenty-five ($25.00) dollars nor more than three hundred ($300.00) dollars, or imprisoned not less than thirty days nor more than one year, or both, for each offense.
“Sec. 8. Any person in interest being dissatisfied with any order of such board shall have the same rights and remedies as to filing a petition for hearing on the reasonableness and lawfulness of any order of such board or to set aside, vacate or amend any order of such board, as is provided in the case of persons dissátisfied with the orders of the industrial commission.”
83 N. E. 236, 14 L. R. A. (N. S.) 361, 121 Am. St. Rep. 321.
