Musick v. Jonsson, 30889.

• Decision Date: 19 November 1971
• Docket Number: No. 30889.,30889.
• Citation: 449 F.2d 201
• Parties: Charles MUSICK et al., Plaintiffs-Appellants, v. Erik JONSSON et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

449 F.2d 201 (1971)

Charles MUSICK et al., Plaintiffs-Appellants, v. Erik JONSSON et al., Defendants-Appellees.

No. 30889.

United States Court of Appeals, Fifth Circuit.

September 27, 1971.

Rehearing and Rehearing Denied November 19, 1971.

Mike Aranson, Legal Arts Center, Dallas, Tex., Mel S. Friedman, W. B. (Bernie) House, Jr., of Maley & Friedman, Houston, Tex., for plaintiffs-appellants.

Joseph G. Werner, Asst. City Atty., N. Alex Bickley, City Atty., Thomas B. Thorpe, Asst. City Atty., Dallas, Tex., for defendants-appellees.

Before COLEMAN, SIMPSON and RONEY, Circuit Judges.

Rehearing and Rehearing En Banc Denied November 19, 1971.

PER CURIAM:

Plaintiffs, who are operators of "adult" movie houses in Dallas, Texas, attack the constitutionality of Sections 46-4.1, 46-4.2 and 46-4.3 of the Revised Code of Civil and Criminal Ordinances of the City of Dallas.¹ The challenged ordinance requires owners and operators of all motion picture theaters to register with the city and to list the names of the persons in possession and control of the films shown on the premises. Non-compliance is denominated as a misdemeanor, punishable by license revocation and a $200.00 fine.

Plaintiffs allege that the ordinance infringes on First Amendment freedoms and is vague and overbroad. They seek a declaration that the ordinance is unconstitutional, along with temporary and permanent injunctions prohibiting the city from enforcing it. The district court denied relief. We affirm.

There is no allegation in the complaint that any plaintiff has been prosecuted, charged or arrested under this ordinance. Plaintiffs allege only that they are "in fear of reprisals" and that the ordinance is unconstitutional on its face. This falls far short of the showing of irreparable injury required for relief in federal courts, as set forth in Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L. Ed.2d 696 (1971) and Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

PER CURIAM:

The Petition for Rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is denied.

Affirmed.

1 An Ordinance amending Chapter 46 of the 1960 Revised Code of Civil and Criminal Ordinances of the City of Dallas, Texas, as amended, by enacting and adding thereto Section 46-4.1 which provides for a disclosure as to the ownership and operation of the business and the residences and addresses of the principle owners, officers or directors thereof, Section 46-4.2 requiring the designating of a person or persons who have legal possession, care, custody and control of the motion picture films, Section 46-4.3 providing for the revocation of license upon failure to comply with the registration provisions; Providing for a Severability Clause; Providing for a Fine of not more than $200.00 for each violation hereof; and Providing for an Effective Date.

BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF DALLAS:

SECTION 1. That Chapter 46 of the 1960 Revised Code of Civil and Criminal Ordinances of the City of Dallas, Texas, as amended, be, and the same is hereby amended by enacting Sections 46-4.1, 46-4.2 and 46-4.3 which shall read as follows:

"Section 46-4.1 Ownership of Business

Every person required by this Chapter to obtain a license for the operation of any moving picture theater or moving picture show shall, not later than September 1, 1970, file with the Assessor and Collector of Taxes of the City, a sworn affidavit stating therein the name, home address, and principal business address of each owner of the business or enterprise through which such moving picture threater or moving picture show is owned and operated, if such business or enterprise be unincorporated, and the name, home address and principal business address of the president, vice-president, secretary, treasurer, and each director of such business or enterprise, if such business or enterprise be incorporated, and shall, after September 1, 1970, and prior to the effective date of any change of the ownership of such business or enterprise, or of the home address or principal business address of any owner thereof, if such business or...