Hutchinson v. Garrity

Mr. Justice Gridley delivered the opinion of the court. We have viewed the picture or photoplay as thrown upon a screen by the use of said exhibits, and, after such view and a consideration of all the other evidence in the case, we are of the opinion that the judgment should be reversed upon the ground that the verdict and special findings of the jury, and the judgment, are not warranted by the evidence. In Bloch v. City of Chicago, 239 Ill. 251, it is said (pp. 263-1-5) : “It has never been questioned that power may be delegated to officers to determine facts, such as whether animals are diseased so as to exclude them from importation; whether meat or food is found upon an inspection to be unhealthy or diseased; whether an assemblage amounts to a riot to be dispersed. There are numerous facts of that kind which must be left to administrative officers, and the ordinance is not invalid because the chief of police must determine the question of fact whether a picture or series of pictures is immoral or obscene. But it.is said that, conceding the power of the legislative body to authorize an administrative officer to determine the question, the ordinance fixes no standard by which it is to be determined. * * * It is doubtless true, as said by counsel, that there are people who differ upon the subject as to what is immoral or obscene. * * * The average person of healthy and wholesome mind knows well enough what the words ‘immoral’ and ‘obscene’ mean and can intelligently apply the test to any picture presented to him. * * * It is presumed that the chief of police, or the mayor, in case of an appeal to him, will perform his duty with reasonable intelligence and in accordance with the generally accepted meaning of the words. If there should be an abuse of power on the part of either the chief of police or the mayor, the ordinance does not prevent an application to a court to compel either officer to perform his duty and issue a permit for a picture which is not immoral or obscene. * * * It is true that pictures representing the career of the ‘James Boys’ illustrate experiences connected with the history of the country, but it does not follow that they are not immoral. Pictures which attempt to exhibit that career necessarily portray exhibitions, of crime, and pictures of the ‘Night Riders’ can represent nothing but malicious mischief, arson and murder. They are both immoral and their exhibition would necessarily be attended with evil effects upon youthful spectators. If the other pictures for which permits were refused were of similar character the chief of police is to be commended for the refusal. ’ ’ In the case of People ex rel. Guggenheim v. City of Chicago, 209 Ill. App. 582, a petition for mandamus was filed to compel the general superintendent of police of said city to grant a permit to exhibit a certain moving picture entitled “Sins of the Sons.” Issue was taken on the facts whether the picture was “immoral” within the meaning of the city ordinances, and whether the respondent had abused the power vested in him in refusing a permit. The lower court, in a trial without a jury, found the issues for the petitioner, but this branch of this Appellate Court reversed the judgment. This court said (pp. 584-5): “If in the exercise of sound discretion the censor so deemed it” (viz., immoral), “then unquestionably it was his right and duty to reject the application for a permit. * * * And the mere fact that the court took one view does not justify the conclusion that the respondent abused his power in taking another. If there is a reasonable basis for the censor’s opinion, then a refusal of a permit based thereon could not be deemed an abuse of power, and the picture unquestionably presents ground for such an opinion. One of its scenes, much dwelt upon in the evidence, shows the introduction of an innocent boy into a house of prostitution and vividly portrays the triumph of its evil suggestions, a scene better calculated to appeal to the prurient and degenerate than to illuminate the moral purposes of the play, and one that may well be deemed harmful in influence when presented to mixed audiences. * ■* * The function of censorship is quasi judicial in character, calling for the exercise of sound discretion, with which the courts will not ordinarily interfere except in a clear case.” (Citing authorities, among them the Block case, supra, and People v. Webb, 256 Ill. 364.) “The evidence does not show such abuse, and for that reason alone, regardless of any difference of views as to whether the picture is immoral, the judgment cannot stand.” . In People ex rel. Fox Film Corporation v. City of Chicago, 209 Ill. App. 586 (not reported in'full), the trial court directed a verdict for the petitioner in a mandamus suit to compel the general superintendent of police to grant a permit to exhibit in said city a certain moving picture entitled “The Tiger Woman,” and a judgment in favor of the petitioner followed. The principal questions of fact raised by the pleadings were whether the picture was immoral or would tend to create harmful impressions on the minds of children. The picture was exhibited on a screen to the court and jury. The. trial court having stated that such exhibition made a prima facie case for the petitioner, respondent called as a witness the official charged with the duty of censorship of moving pictures. He described various scenes in the picture and stated that the refusal to grant a general permit was based on Ms opinion that the picture was immoral and tended to produce a harmful influence upon children. Other witnesses more fully described the scenes and plot, which presented the wiles and schemes of an unchaste woman and circumstances of murder, robbery and theft as incidents to her immoral purposes. In reversing the judgment and remanding the cause this branch of this Appellate Court said: “The question was not alone whether the picture was immoral or had such harmful tendency but whether respondent abused his discretion in refusing a permit. The law does not contemplate that a court and jury shall sit as an appellate tribunal merely to review the censor’s opinion. The basis of a mandamus proceeding in such a case must be an alleged abuse of official power. While a court or jury’s opinion might differ from his, that fact alone would not justify the writ. The nature of his duties under the ordinances was such as to call for the exercise of official discretion, with which.the courts will not generally interfere unless abused.” (Citing authorities.) “When, therefore, the evidence presents grounds, as here, for a diversity of opinion as to the harmful tendency of the picture, not only must the case be submitted to the jury on that question of fact, but before "they can properly find for the petitioner they must also be able to say from the evidence that there was an abuse of power in refusing a permit.” It is probably true that different people would entertain different views on the question whether the photoplay here involved was or was not immoral. We are of the opinion that there are certain scenes in it that are immoral or of an immoral nature, or at least scenes as would furnish a reasonable basis for the censor’s decision that a permit to exhibit the photo-play should be refused upon such grounds. We are also of the opinion that there are certain scenes in it that would tend to create a harmful impression upon the minds of children. But, outside of the questions of the immorality of the photoplay, or such harmful tendency, there is no direct proof of abuse of the official discretion of the censor, and such abuse clearly cannot be inferred from this particular photoplay. (See People ex rel. Konzack v. Schuettler, 209 Ill. App. 588, 591.) There being an absence in the record of evidence of abuse of the official power or discretion of the censor, it follows, under the authorities above cited, that the judgment awarding the writ was erroneous, and it is, therefore, reversed. Reversed ivith finding of facts. Mr. Presiding Justice Matchett and Mr. Justice Barnes concur. Finding of facts. We find as ultimate facts in this case that certain scenes in the photoplay in question are immoral and of an immoral nature and such as would tend to produce a harmful influence upon the minds of children, and that the appellant did not abuse his power or discretion in refusing a,permit to the appellee to exhibit said photoplay in the City of Chicago.