Block v. City of Chicago

• Decision Date: 15 April 1909
• Citation: 239 Ill. 251,87 N.E. 1011
• Parties: BLOCK et al. v. CITY OF CHICAGO.
• Court: Illinois Supreme Court

239 Ill. 251

87 N.E. 1011

BLOCK et al.

v.CITY OF CHICAGO.

Supreme Court of Illinois.

Feb. 19, 1909.

Rehearing Denied April 15, 1909.

Error to Superior Court, Cook County; Farline Q. Ball, Judge.

Bill by Jake Block and others to enjoin the City of Chicago from enforcing an ordinance. Decree of dismissal, and complainants bring error. Affirmed.Adler, Lederer & Schoenbrun, for plaintiffs in error.

Edward J. Brundage, Corp. Counsel, Edwin H. Cassels, and Emil C. Wetten, for defendant in error.

CARTWRIGHT, C. J.

The plaintiffs in error, Jake Block, Nathan Wolf, J. H. Ferris, B Munstock, S. Van Ronkel, and A. Von Ronkel, filed their bill of complaint in the superior court of Cook county against the defendant in error, city of Chicago, alleging that they were engaged in the business of operating five and ten cent theaters in the city of Chicago, where moving pictures were displayed, and praying the court to enjoin the defendant in error from enforcing an ordinance entitled ‘An ordinance prohibiting the exhibition of obscene and immoral pictures and regulating the exhibition of pictures of the classes and kinds commonly shown in mutoscopes, kinetoscopes, cinematographs and penny arcades,’ passed November 4, 1907, and in force November 19, 1907, and to restrain the further prosecution of a suit brought by defendant in error against said Jake Block in the municipal court of Chicago for a violation of said ordinance, and the bringing of any prceedings against any of the complainants for any alleged violation of the provisions of the said ordinance. The court sustained the demurrer of the defendant to the bill, and, the complainants having elected to stand by their bill, it was dismissed for want of equity, at their costs. The ground upon which the injunction was asked for was that the ordinance deprived the complainants of their rights under the Constitution, and was therefore void, and for that reason the record has been brought directly to this court for review by writ of error.

The ordinance requires those engaged in the business of exhibiting moving pictures to secure a permit for the exhibition of such pictures, and provides that the chief of police shall not issue a permit for the exhibition of any obscene or immoral picture or series of pictures, but that he shall issue a permit, without fee or charge, for all pictures which are not obsence or immoral. The ordinance declares that it shall be unlawful for any person, firm, or corporation to show or exhibit in a public place, or in a place where the public is admitted, any picture or series of pictures of the classes or kinds commonly shown in mutoscopes, kinetoscopes, cinematographs, and such pictures or series of pictures as are commonly shown or exhibited in so-called penny arcades, and in all other automatic or moving picture devices, without first having secured a permit therefor from the chief of police. It requires the applicant for a permit to show to the chief of police the plates, films, rolls, or other like apparatus by or from which the picture or series of pictures is shown or produced or the picture or series of pictures as shown or exhibited. The chief of police must either grant or deny the permit within three days after such inspection, and if the picture or series of pictures is immoral or obscene he must refuse the permit, but otherwise it is his duty to grant it without a fee or tax of any kind. If the chief of police refuses to grant a permit, the applicant may appeal to the mayor, whose decision shall be final. When a permit is once granted the picture or series of pictures may be shown by any other exhibiter, provided the written permit is delivered to him and a written notice of the transfer or lease is mailed to the chief of police, and any number of transfers or leases of the same picture or series of pictures may be made under those conditions. The permit must be posted at or near the entrance to the place of exhibition, and any one violating the terms of the ordinance is subject to a fine, not less than $50 nor more than $100, for each offense.

The material facts alleged in the bill and taken to be true for the purposes of the demurrer are as follows: The complainants are engaged in the business of operating five and ten cent theaters, where moving pictures are displayed by means of moving picture machines known as mutoscopes, kinetoscopes, and cinematographs, and have paid a license fee for the business. The pictures are displayed upon canvas and are taken from plays and dramas which the bill says are moral and in no way obscene. Among the pictures are pictures taken from the plays known as the ‘James Boys' and the ‘Night Riders,’ displaying experiences connected with the history of this country. There had been, and at the time of the display of the pictures by complainants there were, certain plays and dramas being performed in certain playhouses in the city of Chicago of which the pictures were reproductions of parts. The films which are used in exhibiting pictures are not owneed by the exhibiters, but are rented from concerns which make a business of renting films to complainants and others at a certain rental per week, and if the films must first be exhibited to the chief of police and a permit obtained it will be necessary to rent the films for a greater length of time and for a larger expense than otherwise. The chief of police refused to grant a permit for the display of the pictures of the ‘James Boys' and ‘Night Riders,’ and others used by the complainants, about 200 or 300 in all, without having any hearing in a court of law where the complainants might defend their rights and property interests. The defendant brought an action in the municipal court against the complainant Jake Block for a penalty for exhibiting the pictures known as ‘James Boys' without a permit, and threatened to bring other proceedings against Jake Block and the other complainants. There are about 200 persons engaged in the same business in Chicago in addition to the complainants, all of whom are similarly situated, and the chief of police threatens to enforce the ordinance against all of them. At the same time permits to complainants were refused for the pictures named, some of the pictures prohibited were being shown in the city in stereoption views and stationary pictures. The bill alleges that the ordinance is void because it discriminates against the exhibiters of moving pictures, delegates discretionary and judicial powers to the chief of police, takes the property of complainants without due process of law, and is unreasonable and oppressive.

The purpose of the ordinance is to secure decency and morality in the moving picture business, and that purpose falls within the police power. It is designed as a precautionary measure to prevent exhibitions criminal in their nature and forbidden by the laws. Even the possession of an indecent picture is a crime under section 223 of the Criminal Code (Hurd's Rev. St. 1908, c. 38), and the offender may be confined in the county jail not more than six months or be fined not less than $100 nor more than $1,000 for each offense. The ordinance applies to five and ten cent theaters such as the complainants operate, and which, on account of the low price of admission, are frequented and patronized by a large number of children, as well as by those of limited means who do not attend the productions of plays and dramas given in the regular theaters. The audiences include those classes whose age, education, and situation in life specially entitle them to protection against the evil influence of obscene and immoral representations. The welfare of society demands that every effort of municipal authorities to afford such protection shall be sustained, unless it is clear that some constitutional right is interfered with. The defendant by its charter has been invested with very extensive powers to enable it to accomplish the purpose of this ordinance. By clause 41 of article 5 it is authorized to license, tax, regulate, suppress, and prohibit exhibitions, shows, and amusements. Clause 45 gives power to prohibit the sale or exhibition of obscene or immoral publications, prints, pictures, or illustrations, and clause 58 authorizes the defendant to regulate places of amusement. The Legislature have thereby given to the defendant power to use every legitimate means for prohibitingand preventing the exhibition of obscene or immoral pictures; but it is argued that in doing so they have interfered with constitutional rights by requiring a permit for moving pictures, while none is required for stereopticon or other stationary pictures. No fee, tax, or other burden is laid upon the exhibiter of moving pictures, and the permit must be issued if the picture or series of pictures is not immoral or obscene.

Counsel argue the question as though exhibiters of stereopticon or other stationary pictures are authorized by the ordinance to exhibit immoral or obscene pictures, while the complainants are prohibited from doing so. That is a false notion, and is of the same character as the argument advanced in City of Chicago v. Brownell, 146 Ill. 64, 34 N. E. 595. It was there claimed that the ordinance prohibiting book making and pool selling, except within the inclosures of fair and race track associations drring the actual time of the meetings of said associations or within 24 hours before any such meetings, was void, as authorizing book making or...