Bendslev v. Commissioner of Public Safety
| Decision Date | 01 April 1954 |
| Citation | 118 N.E.2d 763,331 Mass. 261 |
| Parties | BENDSLEV et al. v. COMMISSIONER OF PUBLIC SAFETY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Richard Wait, Boston, for plaintiffs.
Harris A. Reynolds, Ass't Atty. Gen., for defendant.
Walter R. Donovan, Boston, amicus curiae.
Before QUA, C. J., and LUMMUS, RONAN, SPALDING and WILLIAMS, JJ.
This is a suit in equity by operators of motion picture theatres located within the Commonwealth to obtain a declaratory decree as to the validity of certain regulations promulgated by the commissioner of public safety concerning the use of film in theatres where motion pictures are exhibited and of a provision which he has caused to be inserted in the licenses issued to such theatres. The original plaintiffs have been joined by a number of other operators who have been permitted to intervene.
It is conceded that an actual controversy exists between the parties as to the validity of these regulations and this provision.
The authority of the commissioner to issue these regulations is derived from Sections 72 and 73 of G.L. (Ter.Ed.) c. 143, which provide as follows:
The regulations in question are contained in 'Rules and Regulations made in accordance with sections 72 to 88, inclusive of chapter 143 of the General Laws' by the commissioner of public safety. Section 2 of said rules and regulations reads, 'No person shall keep or use, in or upon the premises of a public building, a cinematograph or similar apparatus involving the use of a combustible or incombustible film more than 10"' in length, except in accordance with the provisions of the law and the following rules and regulations.' Of these rules and regulations subsection 2 of § 48 reads,
The provision inserted in the licenses for theatres issued pursuant to G.L. (Ter.Ed.) c. 143, § 34, as amended, reads, as follows: 'When motion pictures are exhibited, using more than one cinematograph or similar apparatus involving the use of a combustible film more than ten inches in length, there shall be two licensed operators in attendance in the booth or enclosure.'
The case was referred to a master by an order which required him to find the facts and report his findings with his 'subsidiary findings of fact' together with such questions of law as any party might request. His report was confirmed without objection and a final decree entered by a judge of the Superior Court. This decree in substance provided as follows. (1) It is declared that motion picture film made of cellulose acetate does not constitute 'combustible film' as those words are used in G.L. (Ter.Ed.) c. 143. (2) It is declared that § 2 of the rules and regulations providing that 'No person shall keep or use, in or upon the premises of a public building, a cinematograph or similar apparatus involving the use of a combustible or incombustible film more than 10"' in length, except in accordance with the provisions of the law and the following rules and regulations,' is beyond the authority of the commissioner and is invalid, void, and unenforceable in so far as it purports to apply to keeping and using 'incombustible film.' (3) It is declared that subsection 2 of § 48 of the rules and regulations is invalid, void, and unenforceable. (4) It is declared that the commissioner is without authority to include in any license as a condition to its continued validity the provision above quoted 'or any equivalent provision of the same substance.' (5) The commissioner and his agents are enjoined from suspending or revoking any license issued to a cinematograph operator under c. 143, § 75, for failure to observe subsection 2 of § 48 of the rules and regulations. (6) The commissioner and his agents are enjoined from suspending or revoking any license issued for a theatre under c. 143, § 34, for failure to observe the provision above quoted.
The questions for decision are whether film composed of cellulose acetate is a combustible film, the keeping or use of which the commissioner is authorized to regulate, and if such film is combustible, whether the regulations concerning its use are unreasonable and arbitrary in character and therefore invalid.
The master has reported his subsidiary findings relating to the nature of the film commonly used in motion picture theatres. From his report it appears that the film in ordinary commercial use is about one and three eighths inches in width. Its basic material is cellulose which is treated with either nitric acid or acetic acid. When treated with the former it is called cellulose nitrate, and with the latter, cellulose acetate. Either type of film will burn....
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