Hollywood Theatre Corporation v. City of Indianapolis

• Citation: 34 N.E.2d 28,218 Ind. 556
• Decision Date: 22 May 1941
• Docket Number: 27500.
• Parties: HOLLYWOOD THEATRE CORPORATION v. CITY OF INDIANAPOLIS et al.
• Court: Supreme Court of Indiana

34 N.E.2d 28

218 Ind. 556

HOLLYWOOD THEATRE CORPORATION v. CITY OF INDIANAPOLIS et al.

No. 27500.

Supreme Court of Indiana

May 22, 1941

Appeal from Superior Court, Marion County; Russell J. Ryan, judge.

Weiss Born & Weiss, of Indianapolis, for appellant.

Edward H. Knight, Corp. Counsel, Michael B. Reddington, City Atty. and Oscar C. Hagemier, Asst. City Atty., all of Indianapolis for appellees.

RICHMAN Judge.

Under certain ordinances included in its Building Code and Municipal Code adopted in 1925, and amendments thereto, the City of Indianapolis required of appellant a license fee for operating its moving picture theater and that its building be inspected for compliance with regulatory provisions, some of which were designed to prevent fire hazards. The State Fire Marshal is given certain authority with respect to moving picture theaters by § 7 of Ch. 192 of the Acts of 1913, as amended by § 2 of Ch. 115 of the Acts of 1927 (§ 20-807, Burns' Stat.1933, § 9521, Baldwin's Stat.1934) and by Ch. 83 of the Acts of 1937 (§§ 20-1001 to 20-1013, Burns' Stat.Supp. §§ 4594-1 to 4594-13, Baldwin's Supp.1937). He promulgated rules and regulations and required payment by appellant of a license fee fixed by the latter statute. Appellant brought this action against the City and certain of its administrative officers for a declaratory judgment to the effect that the statutes by implication repealed the regulatory provisions of the ordinances so that appellant is not amenable thereto. The State Fire Marshal was not made a party. The evidence was stipulated and includes transcript of all Indianapolis ordinances deemed by either party to be material. The court found that most of the provisions of the codes, including those requiring the license fees, were not so repealed but that a classification basis provided by the Act of 1937 was inconsistent with and superseded the classification schedule contained in the City's code. Judgment was rendered accordingly. Appellant filed motion for new trial which was overruled. This appeal followed.

Appellant concedes that the ordinances under review are valid unless so repealed. There was no motion below and there is no request here to modify the judgment. We are not asked to pass on the validity of the statutes or of the State Fire Marshal's regulations or orders. Appellant stands on the proposition that the statutes have placed in a state administrative body the power to regulate, to the exclusion of the city, the construction and operation of moving picture theaters in every detail which, but for the statutes, could be regulated by the city under its existing codes.

Appellees contend, first, that both schemes of regulation may co-exist and that only when there is conflicting and more stringent regulation by the state must the city yield its power, second, that the statutes expressly limit the State Fire Marshal to the narrow field of prevention and control of fire hazards, while the ordinances cover the additional fields of safety, health and public morals, which together, and independent of regulation with respect to fire hazards, are a sufficient foundation for the imposition of the license fees, and, third, that the Act of 1937, if it be given the effect ascribed to it by appellant, is an unconstitutional delegation of legislative power.

It is not necessary to consider the third reason for the judgment may be sustained on either of the other grounds. So the trial court evidently held as indicated by the language of the judgment.

In conformity with the principle first stated, the judgment carefully eliminated all sections of the codes which contained conflicting and less stringent regulations than those contained in the Act of 1937 and sustained only the remaining sections. For this there is ample authority: Medias v. City of Indianapolis, Ind.Sup., 1939, 23 N.E.2d 590, 594, 125 A.L.R. 590; Spitler v. Town of Munster, 1938, 214 Ind. 75, 14 N.E.2d 579, 115 A.L.R. 1395; Schmidt v. City of Indianapolis, 1907, 168 Ind. 631, 638, 80 N.E. 632, 14 L.R.A.,N.S., 787, 120 Am.St.Rep. 385; Sweet v. City of Wabash, 1872, 41 Ind. 7, 12; Zalk & Josephs Realty Co. v. Stuyvesant Ins. Co., 1934, 191 Minn. 60, 253 N.W. 8, 12; McQuillin Municipal Corporations, 2d Ed., § 875(8) and (9); 43 C.J. Municipal Corporations, §§ 217-220.

Neither the Act of 1913 as amended nor the Act of 1937 purports to confer upon the State Fire Marshal the exclusive power to regulate moving picture theaters, even as to fire hazard. By the first section of the 1913 Act it is made his duty to enforce 'the ordinances of the several cities and towns in Indiana' providing for prevention of fires, which expressly recognizes the continued validity of such ordinances. His authority to make rules and regulations by the case of Town of Kirklin v. Everman, Ind.Sup., 1940, 29 N.E.2d 206, is held not to include legislative power and certainly could not extend beyond the purview of the act giving him that authority. Section 20-807, supra, in the strictest of language confines him to the field of fire prevention and the Act of 1937 has no language extending that field.

It is well established that the moving picture industry is subject to the police power in the interest of public morals, health and safety, and that the buildings and the shows given therein may be regulated and the operators thereof required to pay license fees to defray the cost of...