224 F. 355 (3rd Cir. 1915), 1966, Weber v. Freed

Docket Nº:1966.
Citation:224 F. 355
Party Name:WEBER v. FREED, Collector of Customs.
Case Date:July 19, 1915
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 355

224 F. 355 (3rd Cir. 1915)



FREED, Collector of Customs.

No. 1966.

United States Court of Appeals, Third Circuit.

July 19, 1915

Page 356

Charles A. Towne, of New York City, for appellant.

J. L. Bodine, of Trenton, N.J., for appellee.

Before BUFFINGTON, McPHERSON, and WOOLLEY, Circuit Judges.

McPHERSON, Circuit Judge.

On July 31, 1912, Congress passed an act declaring it unlawful to deposit in the mails or with any express company or other common carrier for interstate transportation,-- ' * * * or to bring or to cause to be brought into the United States from abroad, any film or other pictorial representation of any prize fight or encounter of pugilists under whatever name, which is designed to be used, or may be used, for purposes of public exhibition,' and punishing any violation of the act by fine or imprisonment at labor, or both, at the discretion of the court. Subsection 380 of section 1 of the Tariff Act of 1913 (Act Oct. 3, 1913, c. 16, 38 Stat. 114 (Comp. St. 1913, Sec. 5291)) imposes a specified duty on 'photographic-film positives, imported in any form, for use in any way in connection with moving-picture exhibits,' etc., and adds a proviso to the effect that all films so imported shall be subject to such censorship as may be imposed by the Secretary of the Treasury. As yet the Secretary has not exercised the power given him by this proviso.

Early in April, 1915, the plaintiff brought to the port of Newark, N.J., from the Island of Cuba, moving picture films of the prize fight or pugilistic encounter between Willard and Johnson, and offered them for entry. The collector refused to admit them, basing his action upon the foregoing act of 1912, and the plaintiff thereupon filed the

Page 357

pending bill in equity to enjoin the collector from persisting in such refusal. The District Court declined to grant a preliminary injunction (treating the case, however, as if on final hearing), and the appeal before us attacks the correctness of this order. The plaintiff concedes that the letter of the statute supports the collector and the District Court, but asserts that the act is in substance unconstitutional, and should therefore be disregarded. In brief, the argument is that Congress, while in form exercising its power under the commerce clause, is in reality attempting to exercise the police power that belongs solely to the states.

We do not take this view of the situation. It is needless to say that only in a clear case may an act be declared unconstitutional; but it is equally true that, if such a case be presented, the duty of a court is plain. In our opinion the statute under review belongs undoubtedly to a class of which numerous examples exist, namely, statutes that fall directly under the commerce clause, but affect indirectly the field of the police power. It can hardly be doubted that the right or the power to determine what articles offered for import shall be admitted into this country belongs solely to Congress, and that the right to admit on certain terms implies the plenary right to refuse admission on any terms. It is true that after an...

To continue reading