130 N.E.2d 845 (Ohio App. 2 Dist. 1955), R.K.O. Radio Pictures v. Department of Ed. of State of Ohio, Division of Film Censorship

Citation130 N.E.2d 845
Opinion JudgePER CURIAM
Party NameR.K.O. RADIO PICTURES, Inc., et al., Plaintiffs-Appellants, v. DEPARTMENT OF EDUCATION OF the STATE OF OHIO, DIVISION OF FILM CENSORSHIP, Clyde Hissong, Superintendent, Defendant-Appellee.
AttorneyWright, Harlor, Purpus, Morris & Arnold, Columbus, John C. Harlor and Harry Wright, III, Columbus, of counsel, for plaintiffs-appellants. C. William O'Neill, Atty. Gen., Robert E. Leach, Chief Counsel, Columbus, Gwynne B. Myers, Asst. Atty. Gen., for defendant-appellee.
Judge PanelNICHOLS. J., concurring in the reversal, submits herewith a separate concurring opinion. NICHOLS, Judge (concurring). And here I think it pertinent to quote in full what is said by Mr. Justice Douglas, with whom Mr. Justice Black agrees, concurring:
Case DateJanuary 05, 1955
CourtCourt of Appeals of Ohio

Page 845

130 N.E.2d 845 (Ohio App. 2 Dist. 1955)

R.K.O. RADIO PICTURES, Inc., et al., Plaintiffs-Appellants,

v.

DEPARTMENT OF EDUCATION OF the STATE OF OHIO, DIVISION OF FILM CENSORSHIP, Clyde Hissong, Superintendent, Defendant-Appellee.

Court of Appeals of Ohio, Second District, Franklin.

January 5, 1955

Wright, Harlor, Purpus, Morris & Arnold, Columbus, John C. Harlor and Harry Wright, III, Columbus, of counsel, for plaintiffs-appellants.

C. William O'Neill, Atty. Gen., Robert E. Leach, Chief Counsel, Columbus, Gwynne B. Myers, Asst. Atty. Gen., for defendant-appellee.

PER CURIAM

Judgment reversed on the authority of R.K.O. Radio Pictures, Inc. v. Department of Education of State of Ohio, etc., 162 Ohio St. 263, 122 N.E.2d 769.

MONTGOMERY, P. J., of the Fifth District, and GRIFFITH and NICHOLS, JJ., of the Seventh District, sitting by designation, concur in the reversal.

MONTGOMERY and GRIFFITH, JJ., do so with reluctance, but feel that the above-mentioned case is conclusive.

NICHOLS. J., concurring in the reversal, submits herewith a separate concurring opinion.

NICHOLS, Judge (concurring).

This action was instituted in the Common Pleas Court of Franklin County, Ohio, by R.K.O. Radio Pictures, Inc., Independent Theatre Owners of Ohio, a nonprofit corporation, and Martin G. Smith and Horace Adams, individual residents, taxpayers and property owners in Ohio, wherein they seek to enjoin the Department of Education of the State of Ohio, Division of Film Censorship, Clyde Hissong, Superintendent, from requiring compliance with the provisions of Sections 3305.01 to 3305.99, inclusive, Revised Code of Ohio, basing their action upon the claim that such sections of the Revised Code are in conflict with and repugnant to the First and Fourteenth Amendments of the Constitution of the United States, and Article I, Section 2, Section 11 and Section 19, and Article XI,

Page 846

Section 1, of the Constitution of the State of Ohio.

The Common Pleas Court upheld the authority of the defendant Hissong, as Superintendent of the Division of Film Censorship, in the Department of Education, to censor motion pictures and to require a license from such Department before motion pictures can be exhibited in Ohio, such license obtainable only after an advance private inspection and screening by or under the direction of the Superintendent and at the expense of those engaged in producing and seeking the right of exhibiting motion pictures.

From the decree rendered by the Court of Common Pleas the plaintiffs appealed to the Court of Appeals on questions of law. Judge MONTGOMERY, of the Fifth District, and Judge GRIFFITH, of the Seventh District, sitting by assignment in the Second Appellate District, were reluctant to reverse the decree of the Common Pleas Court and inclined to affirm upon the opinion of Bartlett, J. Since the hearing upon this appeal the Supreme Court of Ohio, in the case of R.K.O. Radio Pictures, Inc. v. Department of Education of the State of Ohio, etc., 162 Ohio St. 263, 122 N.E.2d 769, has confirmed my view that the decree of the Common Pleas Court in this case must be reversed. Judges MONTGOMERY and GRIFFITH now reluctantly join with me in such reversal.

In support of my original position I submit the following opinion written by me November 12, 1954, Before the decision of the Supreme Court of Ohio reported in 162 Ohio St. 263, 122 N.E.2d 769, wherein I was compelled to speak frankly about the opinion of the trial judge, sitting as a chancellor, but without any feeling of disrespect for his honesty and sincerity. Judge Bartlett's opinion is now published in Ohio Com.Pl., 123 N.E.2d 441.

I am stirred, as I have been many times Before, with the eloquent discourse of Judge Barlett, wherein he sets forth verbatim (without quotation) a portion of the ritual of one of the fine benevolent and patriotic organizations of which we are both members, wherein he describes the difference between liberty and license; and had I needed an endorsement of the able Attorney General of the State of Ohio I must have been convinced by the praise given him by the chancellor.

But the decision of this case rests neither upon oratorical eloquence nor upon fulsome praise of the Attorney General. I am constrained to say that I would have been more persuaded to affirmance in this case had the distinguished judge and the able Attorney General kept more clearly before them the nature of the oath required of them to support, uphold and defend the Constitution of the United States and the Constitution of the State of Ohio, in which event I am sure the decree would have been to the contrary and their fine talents not wasted in whittling away at these great charters of human liberty under which the citizens of the United States have lived, prospered, been happy and secure in the rights and privileges guaranteed by the Bill of Rights.

Likewise, I have no doubt of the honesty and sincerity of Mr. Hissong, and I am well aware of the concern of a great body of the people of this state and nation, well thinking, right living and morally sound individuals, who are alarmed because of what they conceive to be the harmful effect upon our children. Yet many of these good people never attend a motion picture show and many will not have a...

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