Opinion
21328.
ARGUED SEPTEMBER 13, 1961.
DECIDED NOVEMBER 9, 1961. REHEARING DENIED NOVEMBER 21, 1961.
Injunction, etc. Fulton Superior Court. Before Judge Alverson.
J. C. Savage, Edwin L. Sterne, Robert F. Lyle, for plaintiffs in error.
Heyman, Abram Young, Maurice N. Maloof, contra.
1. From the petition it appears that the plaintiff chose to procure a decision from the Atlanta Board of Censors; having made such choice, thereafter it must question such decision by writ of certiorari to the superior court, and may not invoke the aid of equity by a petition for injunction.
(a) The reason the board gave for their decision is reviewable by writ of certiorari.
2. The remedy of a declaratory judgment is available where there is a justiciable issue, and is not to be employed to test the validity of determinations having the force of solemn judgments to which no exceptions have been taken.
3. Since the general demurrers should have been sustained, all subsequent proceedings were nugatory.
ARGUED SEPTEMBER 13, 1961 — DECIDED NOVEMBER 9, 1961 — REHEARING DENIED NOVEMBER 21, 1961.
Lopert Pictures Corporation, a Delaware corporation, hereinafter referred to as Lopert, brought a proceeding for declaratory and injunctive relief in the Fulton Superior Court against the City of Atlanta and its officers and agents, William F. Floyd, Jr., Sherwood L. Astin, Mrs. Willis J. Davis, J. Coleman Budd, Sam F. Lowe, Jr., A. E. Lockerman, Aubrey Milam, Hix H. Green, Milton G. Farris, and William B. Hartsfield, in their capacity as members of the Board of Censors of the City of Atlanta, and against Christine S. Gilliam in her capacity as Motion Picture Censor of the City of Atlanta.
The petition alleged: that the Board of Censors, under the authority of the censorship laws of the City of Atlanta, denied to Lopert a permit for showing the movie "Never on Sunday" in the city; that the defendants claim the right to prohibit the showing of said motion picture by reason of the charter of the City of Atlanta as amended (Ga. L. 1915, pp. 480, 493), which purports to authorize and empower the Mayor and Board of Aldermen to regulate the showing of motion pictures in the City of Atlanta; and that, pursuant to the charter provision, the City of Atlanta adopted a certain ordinance establishing the Atlanta Public Library Board of Trustees as a Board of Censors, and creating the position of Motion Picture Censor (codified in the 1953 Code of the City of Atlanta as Sections 56.42 through 56.55).
The petition further alleged that the Censor viewed the film "Never on Sunday" prior to its proposed showing in the City of Atlanta; that she advised Lopert by letter that the film would not be given a permit for showing unless certain cuts were made, that Lopert appealed the decision of the Atlanta Censor to the Board of Censors pursuant to the provisions of City of Atlanta Code § 56.50 within the time required; that said Board reviewed the decision of the Censor and ruled that said film would not be given a permit for showing in the City of Atlanta, with or without cuts.
The petition attacked the charter, the sections of the ordinance and their application on constitutional grounds, alleging that: the provision in the Atlanta charter which allows the Board of Censors to reject a motion picture on the ground that it would affect "the peace, health, morals, and good order of the City," is invalid because it violates the free-speech provisions of the Constitutions of Georgia (Article I, Section I, Paragraph XV) and the United States (First Amendment); the provision gives the Board the power to impose a prior restraint upon the exhibition of motion pictures and violates the due-process and equal-protection clause of the Fourteenth Amendment of the United States Constitution and Article I, Section I, Paragraph III of the Georgia Constitution; the charter provision fails to set up a sufficient standard to judge motion pictures; the language utilized in the charter is too broad to constitute any basis for action by the Board of Censors; Sections 56.44, 56.45, 56.46 and 56.48 are invalid for the same reasons that the charter is invalid; the ordinance violates the due-process clause of the Georgia and the United States Constitutions by investing arbitrary discretion in the Censor, by failing to set up a sufficient standard to judge motion pictures and by failing to define the duties of the Censor and the duty of the Board; the position of Motion Picture Censor was not authorized by the charter provision, and that portion of the ordinance was void; since the charter provision was void, the sections of the ordinance are void; the action taken by the Board prohibiting the exhibition of the film was unconstitutional for the same reasons that the charter provision and the ordinance were void. Lopert made numerous other factual allegations with which it will not be necessary to treat in this opinion.
Attached to Lopert's petition as exhibits "A" and "B", were the charter provisions codified as 14.25 of the 1953 Atlanta Code and the ordinance in question, 56.42 through 56.55 of the Atlanta Code. The pertinent provisions of each here follow.
The charter as amended gave the Mayor and Board of Aldermen full power and authority, by ordinance, to establish rules and regulations governing the manner in which pictures are displayed and the means by which such pictures are exposed; to prevent the display of obscene or licentious pictures or other pictures that may affect the peace, health, morals, and good order of said city; to provide for a Board of Censorship acting as a separate board, or with other established boards of the city, or otherwise, as may be deemed best; to prohibit the display of any picture not approved by the board; to empower the board to approve or reject any picture or scene submitted for examination when, in the board's judgment, it would affect the peace, health, morals, and good order of the city and to provide, by ordinance, for punishment for any violation of the ordinance passed under this authority.
The ordinance created in the department of the Atlanta Public Library the position of Motion Picture Censor, whose duties were to examine and view films and pictures offered for display and to order deletions if the same were obscene, lewd, licentious, profane, or would, in his opinion, adversely affect the peace, health, morals, and good order of the city. The Atlanta Public Library Board was declared to be the Board of Censors with all the power and authority to regulate moving pictures set forth in the charter provision (§ 14.25), specifically to censor, supervise, and regulate all public exhibitions, plays, motion pictures, performances, pantomimes, or other exhibitions where charges were made for admission, and to prohibit such public exhibition which was lewd, immoral, obscene, licentious in character, or profane, and to review any decision of the Censor. To accomplish this end, the Board had the power and authority to do anything needful to effect the declared purposes of this article, e. g., to subpoena and swear witnesses, to require the production of documentary evidence, and to conduct such investigations in such manner as may be appropriate to determine any question of fact.
To perform their duty efficiently and effectively, the Board was authorized to detail one or more members of the Board to view such public exhibition, to make any definite investigation of the character of such, and report the findings to the full Board, who would provide for such hearing by interested persons as may be necessary to a fair determination of any question involved. Any person aggrieved by any action of the Censor might, within ten days, take an appeal to the Board who shall promptly review the decision of the Censor, and shall confirm, modify, or reverse such action. Such decision would be final except that it might be subject to review by the courts under the applicable statutory law.
Lopert amended its petition by adding the averment that the defendants refused to grant a permit for the film "Never on Sunday" because, in their opinion, said film would be harmful to the average child who might view the film and because the picture, in their opinion, presented an unacceptable idea. This was challenged as being an invalid and unconstitutional reason and criterion, as an abridgement of free speech, and the action of the defendants in applying said ordinances was invalid and unconstitutional, even though the ordinance itself was valid.
The defendants filed general and special demurrers and their answer to the petition, and the matter came on to be heard at an interlocutory hearing before the trial judge. He heard the argument on the defendants' demurrers and then proceeded to receive evidence by affidavit and to hear argument with respect to the interlocutory injunction. After taking the matter under advisement, on May 3, 1961, the trial judge issued an order overruling the general demurrers of the defendants, not passing upon the special demurrers. He further ruled that the censorship laws of the City of Atlanta were unconstitutional and held that the movie "Never on Sunday" was not obscene, granting the interlocutory injunction, which prevented the defendants from interfering with Lopert or any other person exhibiting or attempting to exhibit the picture "Never on Sunday." From this order the defendants excepted and assign error. Our discussion of this case will be confined to the sole question of the correctness of the overruling of the general demurrers.
1. The first matter for consideration is the sufficiency of the petition to show cause for the grant of an injunction against the defendants to prevent them from interfering with the exhibition of the motion picture film "Never on Sunday" in theaters located within the City of Atlanta, or a declaratory judgment that the defendants' action in denying the plaintiff a permit to show the film publicly within the city was illegal.
It affirmatively appears from the averments of the petition that, under the charter provisions of the City of Atlanta, the Mayor and Board of Aldermen created the Board of Censors and by appropriate ordinance empowered the Board to pass upon appeals taken from the decisions of the Motion Picture Censor of the City of Atlanta in denying permits to show motion-picture films adjudged by the Censor to be obscene, and gave to the Board of Censors power to conduct hearings of such appeals, subpoena and swear witnesses, to require the production of documents and to proceed in such a manner with its investigations as might be appropriate to the determination of any questions of fact.
In short, according to the pronouncements of City of Cedartown v. Pickett, 193 Ga. 840 ( 20 S.E.2d 263), and Anderson v. McMurry, 217 Ga. 145 ( 121 S.E.2d 22), and other cases decided by this court, the Mayor and Aldermen vested in the Board of Censors, in accord with the city charter, the authority to exercise quasi-judicial functions and constituted the Board an inferior judicatory within the meaning of Code § 19-101. From the petition it appears that the plaintiff voluntarily appealed to the Board of Censors in conformity with a city ordinance prescribing the manner and time of such appeals, and invoked the Board's determination of whether the film "Never on Sunday" was, in fact, obscene, as it had been held by the Censor. So far as the petition discloses, no other question was submitted for the Board of Censors' consideration.
It is related in the petition that the Board acted upon this precise question, and rendered a decision affirming the finding of the Censor that the film was obscene and should not be publicly exhibited. To this determination, no exception was taken by writ of certiorari or otherwise.
Under the facts set out in the petition, the uniform holding of this court that the plaintiff's remedy to obtain review of the Board of Censors' decision was by application to the superior court by writ of certiorari is applicable. Calhoun v. Gulf Oil Corp., 189 Ga. 414, 418 ( 5 S.E.2d 902); Ballard v. Mayor c. of Carrollton, 194 Ga. 489 (1) ( 22 S.E.2d 81); Attaway v. Coleman, 213 Ga. 329 ( 99 S.E.2d 154). In the Attaway case, prepared for this court by Presiding Justice Head, it is held: "Even though equity may afford the injured persons a more adequate and complete remedy than a proceeding at law, yet where such persons have elected to procure a decision by the governing body of a municipality, they can not, during the pendency of the legal proceeding, resort to a court of equity, but must review any ruling adverse to their contentions by writ of certiorari. Mayor c. of Montezuma v. Minor, 70 Ga. 191; Jackson v. Calhoun, 156 Ga. 756, 760 ( 120 S.E. 114); Calhoun v. Gulf Oil Corp., 189 Ga. 414, 418 ( 5 S.E.2d 902); Washington Seminary v. Bass, 192 Ga. 808, 815 ( 16 S.E.2d 565); City of Cedartown v. Pickett, 193 Ga. 840 ( 20 S.E.2d 263); Coffey v. City of Marietta, 212 Ga. 189 ( 91 S.E.2d 482)."
Under the cases cited, a petition for an injunction could not be substituted as a mode of appeal; accordingly, the petition must be held not to have alleged a cause for injunctive relief.
(a) The petition alleges that the Board gave as the reason for their opinion that the film would be harmful to the average child, and the reason assigned for the Board's decision was wrong. This was still a matter to be reviewed by writ of certiorari.
2. A petition for declaratory judgment is an available remedy where there exists a justiciable issue, involving uncertainty and danger of loss or detriment to the applicant in the event he chooses the wrong one of two or more legally uncharted courses that appear to be open to him. The remedy is not to be employed to test the validity of determinations having the force of solemn judgments to which no exceptions have been taken. Code Ann. § 110-1111 (Ga. L. 1945, pp. 137, 139).
3. The general demurrers to the amended petition having been erroneously overruled, all subsequent proceedings, including the grant of the temporary injunction, were nugatory.
Judgment reversed. All the Justices concur.