Fox Film Corporation v. Trumbull

Decision Date17 August 1925
Citation7 F.2d 715
PartiesFOX FILM CORPORATION v. TRUMBULL, Governor of Connecticut, et al. AMERICAN FEATURE FILM CO., Inc., v. SAME.
CourtU.S. District Court — District of Connecticut

Benedict M. Holden, of Hartford, Conn., and Cadwalader, Wickersham & Taft, of New York City (George W. Wickersham and Edwin P. Grosvenor, both of New York City, of counsel), for plaintiffs.

Frank E. Healy, Atty. Gen., and Shipman & Goodwin, of Hartford, Conn. (Arthur L. Shipman, of Hartford, Conn., of counsel), for defendants.

The Federal Motion Picture Council in America, Inc., filed a brief as amicus curiæ.

Before ROGERS, Circuit Judge, and GODDARD and THACHER, District Judges.

ROGERS, Circuit Judge.

This court has been specially constituted in accordance with section 266 of the Judicial Code of the United States (Comp. St. § 1243). That section makes it necessary, when the question is presented whether an injunction shall issue restraining the enforcement of any statute of a state by a state officer, upon the ground of the unconstitutionality of the statute, that the question raised shall be determined by a court of three judges, of whom at least one shall be a Justice of the Supreme Court or a Judge of the Circuit Court of Appeals.

The court in this case is asked to enjoin the enforcement of an act passed by the General Assembly of the state of Connecticut at its last session, upon the ground that it constitutes an unlawful restraint and burden upon interstate commerce, that its enforcement would abridge the privileges and immunities of citizens of the United States, and would deprive plaintiffs of their property without due process of law, and deny to plaintiff the equal protection of the laws, all contrary to the provisions of the Constitution of the United States.

The act complained of is entitled "An act providing for the imposition of a tax on films from which motion pictures are to be exhibited within the state." It was passed by the General Assembly of Connecticut at its biennial session in 1925. It was approved by the Governor on June 24, 1925, and is chapter 177 of the Laws of 1925. It went into effect on July 1, 1925.

Section 1 of the act complained of is as follows: "No person, firm, corporation or other association shall deliver any motion picture film or copy thereof for the purpose of exhibiting in this state any motion picture therefrom without having registered the same and paid the tax thereon as required by the provisions of this act. The amount of such tax including the fee for registration of each such reel of film or copy thereof of one thousand feet or less, shall be ten dollars, and, for each one hundred feet of film in addition to one thousand feet contained in any reel, fifty cents, which amount shall be paid to the tax commissioner at the time of such registration."

Section 2 provides in part as follows: "The provisions hereof shall not be construed to require registration or payment of any tax on reels commonly called news reels and which portray current events. On application, to be made on forms to be prescribed and furnished by the commissioner, he may issue permits for the delivery of, to exhibitors, without payment of any tax, reels of films from which may be shown pictures of a strictly scientific character and intended for the use of the learned professions, and reels for the exhibition of pictures for the promotion of educational, charitable, religious and patriotic purposes and for the instruction of employees by employers of labor. Each such reel shall bear a seal showing that permission for delivery thereof and exhibition of pictures therefrom has been granted by the state, but any permit so granted may be canceled within the discretion of the commissioner, and, in case of such cancellation, the tax due thereon shall be paid by the exhibitor thereof. * * * The commissioner may require exhibitors to keep such records and render such reports as may be necessary to ascertain whether films from which pictures are or have been exhibited by them respectively have been registered and the tax thereon duly paid. The tax commissioner, by himself or by any person whom he may designate for such purpose, may enter the place of business of any exhibitor of motion pictures for the purpose of ascertaining whether the provisions of this act have been complied with."

And section 4 provides in part as follows: "Any person, by himself or as agent or employee of any corporation, company or association, who shall deliver any film or copy thereof in violation of the provisions of this act shall be fined not more than one hundred dollars or imprisoned not more than sixty days or both. Any motion picture operator or exhibitor who shall fail to comply with the regulations of the commissioner authorized by the provisions hereof shall forfeit his license to operate a moving picture machine within this state for a period not exceeding six months. Any motion picture operator who shall exhibit any picture from any film required to be registered as provided herein which has not been so registered and the tax thereon paid shall be fined not more than one hundred dollars or imprisoned not more than thirty days or both. In case of a second conviction of any licensed operator for violation of any provision of this act, the license of such operator shall be suspended for a period not exceeding one year."

The Fox Film Corporation is a New York corporation, with its principal place of business in the city of New York. It appears that all the photoplay negative and positive films produced by it are made in the states of New York and California and are copy-righted. None is made in Connecticut. The plaintiff solicits, through its agents in Connecticut, contracts to exhibit its positive films under contracts which are signed in Connecticut and sent to New York for acceptance by plaintiff, and, when accepted there, returned to the exhibitor in Connecticut. Films sent for exhibition pursuant to these contracts are forwarded from points outside of the state of Connecticut to the branch office of the plaintiff at New Haven, Conn., whence they are delivered to the exhibitor pursuant to such contracts.

The Connecticut act herein involved prohibits the delivery of a film to the exhibitor who has the contract for the first run until the film has been registered and the tax paid.

The American Feature Film Corporation is a Massachusetts corporation, with its principal place of business in the city of Boston. Its business consists in the renting or leasing of photoplays and films from which motion pictures are to be exhibited. These photoplays and films are not produced by the plaintiff. The plaintiff has a contract with Universal Pictures Corporation, a New York corporation, whose principal office is in New York City, under which contract plaintiff has acquired a franchise or right to distribute and lease to exhibitors, owners, or operators of theaters, in certain parts of New England, the photoplays produced by the Universal Pictures Corporation. Positive prints of the photoplays covered by this contract are shipped to the plaintiff at Boston, Mass., by the Universal Pictures Corporation from the points of production or laboratories of the Universal Corporation, which points are located outside the states of New England.

The plaintiff asserts it is also engaged in the business of distributing, renting, and leasing to exhibitors throughout the state of Connecticut motion picture films produced by other than the Universal Pictures Corporation, and has been so engaged during the past 12 years. The business so carried on has been conducted in the manner hereinabove described, respecting the pictures produced by the Universal Pictures Corporation and leased by the plaintiff to exhibitors in Connecticut east of the Connecticut river. It is and has been the practice of the plaintiff to enter into contracts with exhibitors operating theaters in the state of Connecticut. Salesmen of the plaintiff solicit in Connecticut contracts with the exhibitors there located. After an exhibitor signs a contract for pictures offered by salesmen of the plaintiff, the contract is mailed to the office of the plaintiff at Boston, Mass., for approval and signature by an officer of the plaintiff at Boston, after which it is mailed from Boston to the exhibitor in Connecticut. In many instances Connecticut exhibitors come to the office of the plaintiff in Boston, see screenings of plaintiff's pictures in the Boston Office, and sign in Boston contracts for the exhibition of pictures in their theaters located in Connecticut. In such cases, after signature by the plaintiff, the contract may be handed to the exhibitor in Boston, or it may be mailed subsequently to the exhibitor in Connecticut.

Positive prints of the films contracted to be leased as hereinabove described are shipped by the plaintiff by express or parcel post from the office of the plaintiff in Boston, Mass., to the exhibitor at his exhibition address in Connecticut. The contracts of the plaintiff provide that the delivery to any common carrier in due time, to be transported to its destination before the showing time and date, shall constitute full delivery by the plaintiff. After the exhibition period has been completed by the exhibitor in Connecticut, the film is shipped by express or parcel post to the plaintiff at its Boston office. The contract which the plaintiff has with its Connecticut exhibitors provides that the exhibitor shall return the film to the plaintiff's place of business immediately after the exhibition of the film, by first express.

Plaintiff does not carry any stock of films in the state of Connecticut, either positive or negative films, and has never carried any stock of films at any place in Connecticut. All motion picture films are and have been shipped by the plaintiff as hereinabove described directly from Boston, for delivery to exhibitors for the purpose of...

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