Opinion
15525, 15531.
SEPTEMBER 7, 1946. REHEARING DENIED OCTOBER 11, 1946.
Injunction. Before Judge Almand. Fulton Superior Court. April 13, 1946.
J. C. Savage, J. C. Murphy, J. M. B. Bloodworth, and John E. Feagin, for plaintiffs in error.
MacDougald, Troutman Arkwright, Robert S. Sams, and Harllee Branch Jr., contra.
1. The pleaded facts were insufficient to take this case from under the rule that equity will take no part in the administration of the criminal law, and mere apprehension of injury is not sufficient for equitable interference.
2. Where a court of equity has not jurisdiction, it will not assume jurisdiction for the purpose of inquiring into the constitutionality of a legislative act or the validity of a municipal ordinance.
Nos. 15525, 15531. SEPTEMBER 7, 1946. REHEARING DENIED OCTOBER 11, 1946.
By an act of the legislature of 1915 (Ga. L. 1915, pp. 480, 493), the charter for the City of Atlanta was amended so as to give it full power and authority by ordinance to establish rules and regulations governing the manner in which moving pictures shall be displayed and the means by which pictures are exposed; to prevent the display of obscene or licentious pictures or other pictures which may affect the peace, health, morals, and other good order of the 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 empower such board to prohibit the display of any picture submitted for its approval when in the judgment of the board it is obscene or licentious or would adversely affect the peace, health, morals, and good order of the city; and to provide punishment for any one who may violate the ordinances passed pursuant thereto as other offenses are punished under the charter as it then existed. Pursuant to its charter, as thus amended, an ordinance was adopted on December 5, 1944, creating a Board of Censorship for the city. Section 3 of the ordinance created in the Department of Carnegie Library the position of Motion Picture Censor. Section 4 named the Carnegie Library Board as the Board of Censors and gave the board full power and authority to censor, supervise, and regulate all public exhibitions, plays, motion pictures, performances, pantomimes, or other exhibitions within the City of Atlanta where charges are made for admission to such. It further provided that the board shall have power to prohibit any public exhibition, play, motion picture, performance, pantomime, or other representation which shall be immoral, lewd, obscene, licentious in character, or profane. Section 5 authorized the Board of Censors, in order to perform their duties efficiently and effectively, to detail any one or more members of the board to view any such public exhibition, play, motion picture, or performance, to make any definite investigation of the character of such, to report his findings to the full board at such time as they may designate, and to provide for such hearing by interested parties as may be necessary to a fair determination of any question involved. Section 6 made it the duty of the censor to examine and view such films or pictures as any person may offer for display in the City of Atlanta, and if the same are obscene, lewd, licentious, profane, or will in his opinion adversely affect the peace, health, morals, and good order of the city, to order a deletion of such scene or scenes or dialogue, and upon compliance with his order the film or picture may be presented. Section 7 provided that any person aggrieved by any action of the censor may within ten days thereof appeal to the Board of Censors, and made it the duty of the board promptly to review the decision of the censor and confirm, modify, or reverse his action. It also provided that the decision reached by the board on appeal should be final except as subject to review by the courts under the applicable statutory law. Section 2 provided: "It shall be unlawful for any person to exhibit or cause to be exhibited within the City of Atlanta, or within any other territory over which the city exercises police jurisdiction, any picture or moving picture unless the same has been approved by the censor or the Board of Censors as herein provided."
Universal Film Exchanges Inc. and Diana Productions Inc. (defendants in error here) brought and equitable suit in the Superior Court of Fulton County against the City of Atlanta and its officers and agents; Aubrey Milam, Troy Stone, James J. Page Jr., Mrs. Willis Davis, Milton Farris, Sherwood Astin, Ralph A. Huie, John M. Slaton, and William B. Hartsfield, in their capacity as members of the Board of Censors of the City of Atlanta; and Miss Christine Smith, in her purported capacity as Motion Picture Censor of the City of Atlanta, in which they attacked the validity of the ordinance of December 5, 1944, because: (1) The amendment to the charter of Atlanta is too vague and indefinite to constitute a valid grant of legislative authority to enact the ordinance under which the Board of Censors was created and purported to act; and (2) the ordinance passed pursuant to the amendment is invalid and unenforceable — since (a) it is vague and indefinite, in that it is not clearly set forth whether an exhibitor is required to obtain a permit before exhibiting a picture, or whether power is merely vested in the Board of Censors to prohibit the showing of motion pictures; (b) the ordinance attempts to create the position of "Motion Picture Censor" when no power to create such position was granted to the mayor and council in the charter amendment, and purports to give to the censor powers which must under the amendment be exercised only by members of the Board of Censors; (c) it fails to set up a sufficient standard by which the right to exhibit motion pictures may be judged; and (d) the duty neither of the censor nor of the Board of Censors is sufficiently defined. They are vague, indefinite and incapable of enforcement, and the right and obligation of a person desiring to exhibit a motion picture is not sufficiently set forth to enable such person to know what is required or expected of him in order to comply with the ordinance. And further because the charter amendment and the ordinance offend the due-process clause of the Constitution of the United States; and article 1, section 1, paragraph 2 of the Constitution of Georgia (Code, § 2-102), which guarantees impartial and complete protection to person and property; and article 1, section 1, paragraph 15 of the same Constitution (Code, § 2-115), which guarantees freedom of speech and expression to the citizen. The petition, as amended, further alleged: The defendants, under authority of the ordinance referred to, have deprived and continue to deprive them of their constitutional and legal right to have exhibited within the limits of Atlanta a certain motion picture, "Scarlet Street," on the ground that the city has the right to prohibit the exhibition of a motion picture which is obscene or licentious or may adversely affect the peace, health, morals, and good order of the city. The picture, "Scarlet Street," is not obscene or licentious, and neither would its showing adversely affect the peace, health, morals, and good order of the city; but, on the contrary, it is a moral one, consisting of a straightforward, realistic portrayal of a phase of life which should not be ignored, and there is no authority in law or fact why the exhibition of the picture should be prohibited, since it does not offend or violate any of the provisions of the ordinance. The picture was produced by the petitioner, Diana Productions Inc., at a cost of approximately $1,200,000, and had been released to the petitioner, Universal Film Exchanges Inc., a distributor, for release to exhibitors in Atlanta and other places where there may be a desire to show it. It had been submitted to the Board of Censors of Atlanta by the petitioners with a request that it be approved for exhibition in the City of Atlanta. The purported censor for the city viewed it at a private showing and refused to approve it, on the ground that it was "in her opinion licentious and contrary to the good order of the community by reason of the sordid life it portrayed, the treatment of illicit love, the failure of the characters to receive orthodox punishment from the police, and because the picture would tend to weaken a respect for the law." On appeal to the full board, and after a hearing, with eight of the members present, the following motion was placed before the board: "That the appeal made to this board by these people for the right to show this picture in any area in which the City of Atlanta has police jurisdiction be denied." On the vote then taken by the members present, four voted in favor of approving the picture for showing, and four, including the chairman, voted to sustain the action of the censor. The chairman of the board, by letter, then notified the petitioners that the picture had not been approved for showing and they could not show the picture in any area in which the City of Atlanta had police jurisdiction. The action of the board in failing or refusing to permit the picture to be shown was illegal, capricious, arbitrary, and an abuse of discretion, since the picture did not offend the provisions of the ordinance in any manner, and because, when the board came to considered the request, the petitioners and their counsel were excluded from the hearing and the censor was allowed to remain and urge her position. Refusal by the board to approve the picture for showing deprived them of valuable property rights which they have in the film. If the defendants are allowed to prohibit the exhibition of the picture and to proceed with the prosecution of persons who attempt to show it, the petitioners will be irreparably damaged and will be deprived of their property in violation of their constitutional and legal rights because: (1) The greatest revenue from a motion picture is obtained at or near the time it is released for exhibition, at what is known in the motion-picture trade as "first-run showings." "First-run" value depends largely upon the fact that the picture is new. Substantial delay in exhibiting the picture in Atlanta, after its release elsewhere, necessarily reduces reasonably anticipated revenue from the picture and deprives the petitioners of the advantage of national advertisement. (2) Refusal by the board to approve the picture has made it difficult to secure contracts with exhibitors in other cities in the State of Georgia, for the reason that other exhibitors are reluctant to exhibit a picture which has been banned in the largest city of the State, as well as the capital of the State. The action of the defendants in attempting to ban the picture in Atlanta has a tremendous influence on other communities of the State. Unless enjoined from prohibiting the exhibition of the picture, the petitioners will be irreparably damaged, not only with respect to obtaining revenue from the exhibition of the picture of the City of Atlanta, but in other cities and towns throughout the State of Georgia. (3) Refusal to approve the picture on the asserted ground that it is obscene, licentious, and contrary to the peace, health, morals, and good order to the city has irreparably injured and damaged the reputation not only of the petitioners, but of the producers, director, and the actors connected with the picture, and has caused the picture to be regarded as a "sensational" picture, rather than a straightforward artistic production. And, (4) if they should seek to exhibit the picture in the City of Atlanta without obtaining a permit therefor, they would be subject to a series of criminal prosecutions for the violation of said ordinance, and each day when it is so exhibited will constitute a separate and distinct offense.
It was further alleged that the manner in which the Board of Censors had applied the ordinance rendered their action void, illegal, and violated the constitutional rights of the petitioners, because: (1) The Motion Picture Censor had no right or authority to pass on the question of approval of the picture for exhibition, as was done in this case. Her jurisdiction under the ordinance was to examine the picture, and if any part thereof was found objectionable to order a deflection of such scene or scenes or dialogue which offended the standards attempted to be set up in the ordinance. repeated requests had been made to her to point out any desired deletions, if there were any. (2) The petitioners had been denied a fair and impartial determination of their appeal, by the Board of Censors allowing the censor to remain during a closed session of the board while considering and voting on their application for approval, after the petitioners and their counsel had been excluded. (3) Positive action on the part of the Board of Censors was required before the exhibition of the picture would be prohibited, and the failure or refusal to act was not sufficient to constitute a prohibition. Notwithstanding this, the Board of Censors had taken the position, as set out in its letter of February 16, 1946, that mere failure to act on its part made it illegal for the petitioners to exhibit the picture, "Scarlet Street," within the city, and whoever sought to so exhibit it would do so at his peril and would be subject to prosecution, and if convicted would be subject to a fine not exceeding $500 or 30 days on the public works, either or both, and each day when the picture was exhibited would constitute a separate offense. (4) When the board of censors considered the appeal, and on motion to deny it, the chairman of the board as the presiding officer, although he had no right to vote, except to break a tie, voted so as to create a tie. Notwithstanding the chairman's vote, the motion to deny the appeal failed to pass and plaintiffs have not been lawfully prohibited from having the picture exhibited. Since positive action by the Board of Censors on appeal was required by the ordinance, and no such action had been taken, the ruling of the chairman as set out in his letter was illegal and void. (5) As a consequence of these facts, the petitioners are being denied the right to exhibit the picture, not by any lawful act of the board of censors but by the illegal act of Miss Smith, purporting to act as Motion Picture Censor, when no such right or power is vested in her.
It was also alleged: That, if it should be held that the tie vote by the Board of Censors amounted to a legal denial of a permit for the showing of the picture, and if it should be held that the charter provisions and the ordinance passed pursuant thereto are valid and enforceable, yet the action of the board in refusing a permit was an abuse of discretion, there being no justification in law or fact for the denial of a permit. The petitioners have no adequate remedy at law.
Besides for process, they prayed: That the defendants, their representatives and agents, be enjoined from preventing or interfering in any way with the petitioners, or any other persons, exhibiting or attempting to exhibit within the City of Atlanta, the picture, "Scarlet Street;" that both the amendment to the charter of Atlanta and the ordinance passed pursuant thereto creating a Board of Censors and seeking to provide for the censorship of motion pictures, be declared illegal, void, and unenforceable, as against petitioners; and for such other and further relief as may be necessary and proper for their protection and to which they may be entitled in the premises.
The defendants jointly demurred to the petition as amended on the grounds that there is no equity in the bill because there is a complete and adequate remedy at law, and because the petition sets forth no cause of action. The demurrer was overruled, and only to this judgment was exception taken by plaintiffs in error.
On a cross-bill of exceptions, error is assigned on the judgment holding that the charter amendment and the ordinance adopted pursuant thereto were not invalid for any reason alleged in the petition as amended; and on the judgment holding that the presence of the censor at the executive session of the Board of Censors, when the request for approval to exhibit the picture was considered and voted on, at which time the petitioners were excluded, was not such an irregularity as would render the findings of the board null and void.
1. The sufficiency of the petition is challenged by the demurrer on the grounds that it contains no equity, since the petitioners have a complete and adequate remedy at law, and states no cause of action.
(a) "Equity will take no part in the administration of the criminal law. It will neither aid criminal courts in the exercise of their jurisdiction, nor will it restrain or obstruct them." Code, § 55-102. The same rule is likewise applicable in quasi-criminal proceedings. Starnes v. Atlanta, 139 Ga. 531 ( 77 S.E. 381). Such has been the law of this State for a long time. By numerous decisions of this court this rule has been stated and restated. The rule that equity will take no part in the administration of the criminal law is without exception; but in a number of decisions by this court, some of which are cited by counsel for the defendant in error, it has been held, because of specially pleaded facts, that the rule was not applicable. In Corley v. Atlanta, 181 Ga. 381 ( 182 S.E. 177), Mr. Justice Bell, undertook to assemble the cases where the rule had been held applicable. In his option he said: "There may be some cases in which the principles herein referred to were inadvertently overlooked, or were ignored because not invoked, and in which the results might have been different under other circumstances. Such are mere physical precedents, however, and are of little value except on the questions actually considered." The writer must confess that after examining all of the different decisions of this court, as he has anxiously done, dealing with the application of the rule, he is unable to reconcile some of the decisions with others, but, as pointed out by Mr. Justice Cobb in Southern Ry. Co. v. Brown, 126 Ga. 1, 5 ( 54 S.E. 911), "A misapplication of the rule in a given case will not be a binding authority, unless the facts of the two cases are identically the same." In the rather recent case of City of Albany v. Lippitt, 191 Ga. 756 ( 13 S.E.2d 807), Mr. Justice Duckworth, speaking for this court, said: "In every case where the pleaded facts show that the primary injury complained of is the criminal prosecution, although property rights are incidentally involved, there is an adequate remedy at law by making a defense on the trial of the criminal case, and equity has no jurisdiction. If, however, the pleaded facts show that the primary injury of which complaint is made is to property and property rights, although criminal prosecutions may be incidentally involved, and there is no adequate remedy at law, equity has jurisdiction."
Are the pleaded facts here sufficient to take the case from under the rule? We think not. The ordinance can be enforced only by criminal prosecution. None has been instituted or threatened. Construing the petition most strongly against the petitioners, as we are required to do for purposes of the demurrer, it shows that they made an application to the Board of Censors for the approval of the picture, "Scarlet Street," for showing in Atlanta, and for a permit to show the picture. The motion voted on by the Board of Censors was "that the appeal made to this board by these people to show this picture in any area in which the City of Atlanta has police jurisdiction be denied." Following this action, the board notified them by letter that the picture had not been approved for showing, and that they could not show it in any area in which the city had police jurisdiction. In these circumstances they allege that, if they seek to exhibit the picture in the City of Atlanta, they will be subject to a series of criminal prosecutions for a violation of the ordinance. They pray that the defendants be enjoined from such interference. In the event that they seek to exhibit the picture and criminal prosecutions are instituted against them, as they apprehend, they will have an adequate and complete remedy by defense thereto, and the case therefore falls within the rule that equity will take no part in the administration of the criminal law; and this would be true whether the board has or has not legally acted on the application for a permit. Phillips v. Stone Mountain, 61 Ga. 386; City of Bainbridge v. Reynolds, 111 Ga. 758 ( 36 S.E. 935); Mayor c. of Shellman v. Saxon, 134 Ga. 29 ( 67 S.E. 438, 27 L.R.A. (N.S.) 452); Starnes v. Atlanta, supra; Cathcart Van Storage Co. v. Atlanta, 169 Ga. 791 ( 151 S.E. 489); Southern Oil Stores v. Atlanta, 177 Ga. 602 ( 170 S.E. 801); Howard v. Briarcliff Zoological Corp., 178 Ga. 595 ( 173 S.E. 391); City of Douglas v. South Georgia Grocery Co., 178 Ga. 657 ( 174 S.E. 127); Asa G. Candler Inc. v. Atlanta, 178 Ga. 661 ( 174 S.E. 129); Corley v. Atlanta, supra; Sosebee v. Demorest, 182 Ga. 338 ( 185 S.E. 330); Jewel Tea Co. v. Augusta, 183 Ga. 817 ( 190 S.E. 1); Walnut Transfer Storage Co. v. Harrison, 185 Ga. 720 ( 196 S.E. 432); Brimer v. Jones, 185 Ga. 747 ( 196 S.E. 435); Jewel Tea Co. v. Cartersville, 185 Ga. 799 ( 196 S.E. 712); Southern Theatres Corp. v. Martin, 188 Ga. 852 ( 5 S.E.2d 39); Powell v. Hartsfield, 190 Ga. 839 ( 11 S.E.2d 33); Spur Distributing Co. v. Americus, 190 Ga. 842 ( 11 S.E.2d 30); City of Atlanta v. Miller, 191 Ga. 767 ( 13 S.E.2d 814); Winchester v. Gainesville, 193 Ga. 33 ( 17 S.E.2d 66).
As instances where the rule was not applied, counsel for the defendant in error cite and rely on Georgia R. Banking Co. v. Atlanta, 118 Ga. 486 ( 45 S.E. 256); Cutsinger v. Atlanta, 142 Ga. 555 ( 83 S.E. 263, L.R.A. 1915B, 1097, Ann. Cas. 1916C, 280); Carey v. Atlanta, 143 Ga. 192 ( 84 S.E. 456, L.R.A. 1915D, 684, Ann. Cas. 1916E, 1151); City Council of Augusta v. Loftis, 156 Ga. 77 ( 118 S.E. 666); Southeastern Greyhound Lines v. Atlanta, 177 Ga. 181 ( 170 S.E. 43); Great Atlantic Pacific Tea Co. v. Columbus, 189 Ga. 458 ( 6 S.E.2d 320); City of Albany v. Lippitt, supra; Braddy v. Macon, 194 Ga. 871 ( 22 S.E.2d 801). We have carefully examined all of those cases, and each differs on its facts from the instant case. We do not deem it necessary here to enter into any extended effort to distinguish the case at bar from the cited authorities, but suffice it to say that in the more recent cases of Great Atlantic Pacific Tea Co. v. Columbus, City of Albany v. Lippitt, and Braddy v. Macon, where property and property rights were being injured, and under municipal ordinances persons other than the injured party were being prosecuted, this court held that equity would intervene, since the injured party had no right to control the defense of those being prosecuted, and hence had no full and complete remedy, but such is not the case here. Nowhere in the petition is it alleged that the petitioners have contracted, or attempted to contract, with any other person for the exhibition of the picture in Atlanta, or that any other person desires to so exhibit it.
(b) Does the petition state a cause of action for equitable jurisdiction? On application of the principles ruled in Candler v. Atlanta, Howard v. Briarcliff Zoological Corp., City of Douglas v. South Georgia Grocery Co., supra, and West v. Chastain, 186 Ga. 667 ( 198 S.E. 736), to the allegations of the petition in the instant case, we think not. In the Candler case, where this court held that injunction was properly refused, the petitioner alleged: That it was the owner of valuable real estate located in the City of Atlanta, which was leased to a tenant and used for an open-air market; that an ordinance had been adopted, the validity of which was attacked as not being authorized by its charter, for certain constitutional grounds, and as being unreasonable, which ordinance prohibited the use of such property for such purpose without a permit from the city; that application for a permit had been made, the fee required by the ordinance tendered, and a permit had been refused; that such ordinance was being used by the defendants to destroy valuable property rights of the petitioner to use or lease its property for such purpose, thereby reducing the income derived as rent from $500 per month to $65 per month; and that the chief of police had threatened and was threatening to arrest and prosecute the petitioner's tenant for each and every day that such tenant conducts an open-air market on the premises, claiming such operation to be in violation of the ordinance. In these circumstances, this court held: "The petition does not show interference with the person or property rights of the plaintiff, but is based on mere apprehension that such interference may be done." And in the very recent case of Wallace v. Atlanta, 200 Ga. 749 ( 38 S.E.2d 596), it was said: "Equity will not entertain a petition to enjoin the enforcement of an alleged unconstitutional law, where the complainant does not show that such enforcement is attempted against his personal or property rights." As was said by Mr. Justice Grice in West v. Chastain, supra: "The words of the Master, uttered centuries ago, are applicable here: `Sufficient unto the day is the evil thereof.'" In City of Douglas v. South Georgia Grocery Co., supra, this court held: "Where a court of equity, under the well-recognized principles stated above, has not jurisdiction, it will not assume jurisdiction for the purpose of inquiring into the constitutionality of a legislative act or the validity or reasonableness of a municipal ordinance making penal the act or acts for which the prosecutions were threatened." For the reasons herein stated, it was erroneous not to sustain the demurrer and dismiss the case.
Judgment reversed on main bill of exceptions. Cross-bill of exceptions dismissed. All the Justices concur.