Empire Pictures Distributing Co. v. City of Fort Worth

• Decision Date: 11 January 1960
• Docket Number: No. 17808.,17808.
• Citation: 273 F.2d 529
• Parties: EMPIRE PICTURES DISTRIBUTING COMPANY, Inc., and Kingsley International Pictures Corporation, Appellants, v. CITY OF FORT WORTH et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

273 F.2d 529 (1960)

EMPIRE PICTURES DISTRIBUTING COMPANY, Inc., and Kingsley International Pictures Corporation, Appellants, v. CITY OF FORT WORTH et al., Appellees.

No. 17808.

United States Court of Appeals Fifth Circuit.

January 11, 1960.

Grover Hartt, Jr., Dallas, Tex., Ephraim London, New York City, Tobolowsky, Hartt & Schlinger, Dallas, Tex., for appellants.

Robert R. Goodrich, Fort Worth, Tex., R. E. Rouer, S. G. Johndroe, Jr., G. Gordon Whitman, Martin Siegmund, James O. Price, Fort Worth, Tex., for appellees.

Before CAMERON, JONES and BROWN, Circuit Judges.

CAMERON, Circuit Judge.

Alleging that the case arises under the Constitution of the United States, appellants Empire Pictures Distributing Company, Inc., a Texas corporation, and Kingsley International Pictures Corporation, a New York corporation, brought this action to have two ordinances of the City of Fort Worth, Texas declared to be violative of their rights under the First and Fourteenth Amendments of the Constitution of the United States, and to have their enforcement enjoined. The defendants, appellees here, are the City of Fort Worth, a municipal corporation, its mayor, city manager and chief of police, along with the members of the Board of Censorship created by one of the ordinances.

It was alleged that Kingsley was the sole owner of the right to exhibit a motion picture film "And God Created Woman" in the United States, and that Empire was owner of the rights to distribute the film in the State of Texas, and that Empire had contracted with a theater in Fort Worth to exhibit the picture, but it had been unable to do so because the City refused to issue a permit for such exhibition, without which permit appellants would be subject to the penalties of one of the ordinances. The complaint charged that the ordinances provided for a system of censorship of motion pictures and that the ordinances were, on their face and as interpreted by defendants, in contravention of their rights guaranteed by the First and Fourteenth Amendments of the Constitution.

Copies of the two ordinances were attached to the complaint.¹ It was alleged that the film was "not obscene, and that its exhibition would not violate any valid law or statute of the State of Texas or ordinance or regulation of the City of Fort Worth." It was further alleged that the Boards were without any legal authority to attempt the censoring and to restrict the licenses of the motion picture. Both the Board of eight members and the Board augmented by the three "Referees" denied a permit for the exhibition unless five designated scenes should be deleted.

Plaintiffs thereupon filed their complaint and prayed for judgment declaring the actions of the defendants in refusing the license to be in violation of their constitutional rights and their valuable property rights, and that they be forever restrained and enjoined from taking any action or proceeding by punitive action or otherwise that would or might in any way interfere with the exhibition of the motion picture film.

After the defendants had answered, the court at pretrial hearing declined to witness the exhibition of the picture and required that the hearing be upon oral testimony. Both sides put on their witnesses and the court made its findings in favor of the defendants and against plaintiffs, and approved the denial of the permit unless the several scenes from the picture were eliminated in line with the findings of the two Boards. Based upon these findings a judgment was entered dismissing the action on its merits, from which judgment this appeal was prosecuted.

At the threshold of the case lies the question whether the trial court ought not sua sponte to have withheld action "while the parties repaired to a state tribunal for an authoritative declaration of applicable state law." Since our answer to this question will dispose of the appeal, no further statement need be made of the evidence introduced in the hearing of the merits.

Five decisions rendered by the Supreme Court in the current year furnish a clear guide for the disposition of this appeal.² The opinion of the Court in Thibodaux and the dissenting opinion of three of the Justices bring several facets of the question into sharper focus than the others and will be discussed first and at some length.

The City of Thibodaux, Louisiana enlarged its limits and, acting under Louisiana Statutes, filed in the proper Louisiana Court condemnation proceedings aimed at taking over that portion of the private electric utility system owned by the Power Company which served the annexed portion of Thibodaux. Based upon diversity of citizenship, the Power Company removed to the federal court. Citing Leiter Minerals, Inc. v. United States, 352 U.S. 220, 229, 77 S.Ct. 287, 1 L.Ed.2d 267, the District Court sua sponte stayed the proceedings before it until the Supreme Court of Louisiana had been afforded an opportunity to interpret, under declaratory judgment procedures, the statutes of Louisiana involved in the expropriation proceedings.³ Upon Thibodaux's appeal the Court of Appeals for the Fifth Circuit reversed and remanded the case for trial by the United States District Court,⁴ holding that, since expropriation proceedings were not of equitable jurisdiction and no exceptional circumstances were present which would require or permit the District Court to delay its determination, the trial court should have proceeded to trial on the merits. The opinion cited and discussed many of the Supreme Court cases by which the rule of abstention had been evolved. The Supreme Court granted certiorari⁵ and expounded at length the character of expropriation proceedings, holding that despite their special and peculiar nature, there was no deterrent to a stay of proceedings pending State action. Some of the general language of the decision deserves quotation:

"We have increasingly recognized the wisdom of staying actions in the federal courts pending determination by a state court of decisive issues of state law. Thus in Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 499, 61 S.Ct. 643, 644, 85 L.Ed. 971, it was said:

"`Had we or they the lower court judges no choice in the matter but to decide what is the law of the state, we should hesitate long before rejecting their forecast of Texas law. But no matter how seasoned the judgment of the district court may be, it cannot escape being a forecast rather than a determination.\' * * But where the issue touched upon the relationship of City to State, City of Chicago v. Fieldcrest Dairies, Inc., 316 U.S. 168, 62 S.Ct. 986, 86 L.Ed. 1355, or involved the scope of a previously uninterpreted state statute which, if applicable, was of questionable constitutionality, Leiter Minerals, Inc. v. United States, 352 U.S. 220, 229, 77 S.Ct. 287, 292, 1 L.Ed.2d 267, we have required district courts, and not merely sanctioned an exercise of their discretionary power, to stay their proceedings pending the submission of the state law questions to state determination.

"These prior cases have been cases in equity, but they did not apply a technical rule of equity procedure. They reflect a deeper policy derived from our federalism. We have drawn upon the judicial discretion of the chancellor to decline jurisdiction over a part or all of a case brought before him. See Railroad Commission of Texas v. Pullman Co. supra. * * * A determination of the nature and extent of delegation of the power of eminent domain concerns the apportionment of governmental powers between City and State. The issues normally turn on legislation with much local variation interpreted in local settings. The considerations that prevailed in conventional equity suits for avoiding the hazards of serious disruption by federal courts of state government or needless friction between state and federal authorities are similarly appropriate in a state eminent domain proceeding brought in, or removed to, a federal court.

"* * * The justification for this power, to be exercised within the indicated limits, lies in regard for the respective competence of the state and federal court systems and for the maintenance of harmonious federal-state relations in a matter close to the political interests of a State." 360 U.S. at pages 27-29, 79 S.Ct. at page 1072. Emphasis supplied.

Two Justices joined in a vigorous dissenting opinion by Mr. Justice Brennan. A brief quotation from the dissent will serve to indicate the extent to which the dissenting Justices felt that the action and language of the court in Thibodaux departed from principles theretofore recognized:

"Until today, the standards for testing this order of the District Court sending the parties to this diversity action to a state court for decision of a state law question might have been said to have been reasonably consistent with the imperative duty of a District Court, imposed by Congress under 28 U.S. C. §§ 1332 and 1441, 28 U.S.C.A. §§ 1332, 1441 to render prompt justice in cases between citizens of different States. To order these suitors out of the federal court and into a state court in the circumstances of this case passes beyond disrespect for the diversity jurisdiction to a plain disregard of this imperative duty. The doctrine of abstention, in proper perspective, is an extraordinary and narrow exception to this duty, and abdication of the obligation to decide cases can be justified under this doctrine only in the exceptional circumstances where the order to the parties to repair to the state court would clearly serve one of two important countervailing interests: either the avoidance of a premature and perhaps unnecessary decision of a serious federal * * * question, or the avoidance of the hazard of unsettling some delicate balance in the area of federal-state relationships.

"These exceptional circumstances provided until now a very narrow corridor through which a District Court could escape from its obligation to decide

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