City of Portland v. Welch
| Decision Date | 20 September 1961 |
| Citation | 364 P.2d 1009,229 Or. 308 |
| Parties | CITY OF PORTLAND, Respondent, v. Nancy WELCH, Appellant. |
| Court | Oregon Supreme Court |
Bernard Shevach, Portland, argued the cause and filed a brief for appellant.
Richard Braman, Dep. City Atty., Portland, argued the cause for respondent. With him on the brief were Alexander G. Brown, City Atty., and Emory J. Crofoot, Dep. City Atty., Portland.
Paul R. Meyer and Carl R. Neil, Portland, filed a brief for the American Civil Liberties Union of Oregon as amicus curiae.
Before McALLISTER, C. J., and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and LUSK, JJ.
The proprietor of a theater appeals from a conviction of violating Art. 30, Police Code of the City of Portland, Oregon. On April 5, 1960, Mrs. Welch exhibited a motion picture without first excising therefrom two scenes ordered removed as a condition to the issuance of a license to exhibit the film.
Mrs. Welch was convicted in the Municipal Court, and in due course appealed de novo to the circuit court. Following an adverse ruling on demurrer in the circuit court, trial by jury was waived, and judgment of conviction was entered. The issue presented in this court is whether the complaint states a crime.
Omitting formal allegations and signatures, the complaint charges:
'The above-named defendant on the 5th of April, 1960, within the corporate limits of the said City of Portland did wilfully and unlawfully show a motion-picture, to wit: The Lovers, conditionally approved by officers designated to view said motion-picture by the Chief of Police, to wit: John F. Fraser and James C. Quinn, at the Guild Theater, 821 S.W. 9th Avenue, without first making the eliminations required as a condition to such approval, to wit: the night bedroom scene after boat ride and the bathroom scene where both enter bathtub'.
Upon demurrer, we have no evidence of the nature of a particular picture. For all this court knows, or has reason to know, the picture described in the complaint could have been pure, pornographic, or neither. If exhibiting the picture was a crime under ORS 167.150(1) (obscenity law), a prosecution might have raised the question of obscenity. State v. Jackson, Or., 356 P.2d 495. But this is not such a prosecution and our attention is directed to the ordinance rather than to the picture.
On its face, the ordinance would appear to apply to films of every kind. Provisions relevant to this case read as follows:
'[New Article 30 added by Ordinance No. 97898 passed and effective February 13, 1953].
'(a) By action or words is obscene, indecent or immoral;
'(b) By action or words presents any gruesome, revolting or disgusting scenes or subjects;
'(c) Tends to disturb the public peace; or
'(d) Tends to corrupt the public morals.
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'When the Chief of Police * * * is already familiar with a motion-picture * * * and is satisfied that the same does not violate Section 16-3002, a view may be taken or not as provided in Section 16-3004 * * *.
'Section 16-3008. Viewers.
'[Section 16-3008 amended by Ordinance No. 100319 passed and effective April 22, 1954].
* * *.'
The demurrer challenged the city's complaint as failing to charge a crime. Additional issues under both the state and federal constitutions have been tendered by the defendant. She urges us to hold that both constitutions prohibit the enactment of any such ordinance. However, there is no need to consider this question. The federal question has been answered adversely to the defendant in Times Film Corp. v. City of Chicago, 365 U.S. 43, 81 S.Ct. 391, 5 L.Ed.2d 403. We do not review provisions of the ordinance which the city has not attempted to enforce against this defendant. Huron Cement Co. v. Detroit, 362 U.S. 440, 442 (footnote 1), 80 S.Ct. 813, 4 L.Ed.2d 852, 855; Utah Power and L. Co. v. Pfost, 286 U.S. 165, 186, 52 S.Ct. 548, 76 L.Ed. 1038; 16 C.J.S. Constitutional Law § 76, pages 226, 231, 233, 234. We will consider only the issue raised by the demurrer to the complaint.
On the record before us, it appears that the censors, after seeing the picture, ordered two scenes deleted. It was for showing the picture intact, thereby flouting the order of the censors, that the defendant was arrested and prosecuted. Mrs. Welch has not been accused of failing to submit the film for police inspection. Cf. Times Film Corp. v. City of Chicago, supra. The question for decision, therefore, is whether it is a crime to disobey an order to cut and splice film as directed by the police chief. If so, the complaint stated a violation. If not, it was error to overrule the demurrer.
Following the decision of Mutual Film Corp. v. Industrial Comm. of Ohio, 1915, 236 U.S. 230, 35 S.Ct. 387, 59 L.Ed. 552, motion pictures were considered to be mere commercial spectacles subject to regulation. See Censorship of Motion Pictures, 49 Yale L.J. 87-113, and Entertainment: Public Pressures and the Law, 71...
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