Pub. Welfare Pictures Corp. v. Brennan
| Decision Date | 27 October 1926 |
| Citation | 134 A. 868 |
| Parties | PUBLIC WELFARE PICTURES CORPORATION et al. v. BRENNAN et al. |
| Court | New Jersey Court of Chancery |
Suit by the Public Welfare Pictures Corporation and another against Williams J. Brennan and another. Injunction granted.
Leber & Ruback, of Newark, for complainants.
Jerome Congleton, of Newark, for defendants.
CHURCH, Vice Chancellor. The facts in this case as set forth in the affidavits are as follows: Complainants, Public Welfare Pictures Corporation and Samuel Cummins, own a film called The Naked Truth. They entered into a contract with the owners of the Capitol Theater to exhibit the film there. Before the date of the first public exhibition a private view was had, attended by Dr. Charles V. Craster, chief of the board of health of Newark, by Miss Justina T. Ellar and Robert Lawrence of the Newark police department (these two being known as the board of censors and appointed by William J. Brennan, head of the department of public safety of Newark), and also by a number of ladies invited by the board of censors and by Mr. Brennan. Dr. Craster saw nothing objectionable in the film. The board of censors thought it objectionable unless presented in a Y. M. C. A., in a school building, or a church, without charge. In passing, I may say I cannot see why a play, objectionable in itself, is made less so by allowing the public to see it in a church and for nothing. What the invited ladies thought of it does not appear. Commissioner Brennan then caused a notice to be given complainants that the presentation of the film was prohibited, that he would prevent the production by force, would revoke the theater license, and arrest all persons connected with the exhibition.
Complainants thereupon went to Commissioner Brennan and offered to exhibit the film to him, and if he decided that it was objectionable it would not be produced. Commissioner Brennan said he would not view the exhibition, that Justina Ellar and Robert Lawrence were persons in his department to whom he confided the censorship of films, and that he would stand behind their judgment. Complainants now ask an injunction restraining the commissioner and the city from interfering with this production, alleging great monetary loss if they are not allowed to produce it. There are no answering affidavits.
The question here is not, Has the Legislature the right to say by statute that a municipality may, in the exercise of its police power, control theaters and moving picture shows and decide what are and what are not proper exhibitions? It is, Has the Legislature done this? The authorities hold as follows (28 Cyc. 694):
"In the absence, however, of an expressed delegation or of a necessary conferment resulting from some inherent or given expressed power, the municipality cannot lawfully act."
It is admitted that there is no legislative authority for this so-called censorship except as may be inferred from the general welfare clause of the Home Rule Act, Laws 1917, c. 152, art. 14, § 2. This clause gives municipalities the power "to make, enforce, amend, and repeal such other ordinances, regulations, rules, and by-laws not contrary to the laws of this state or of the United States as they may deem necessary and proper for the good government, order, protection of persons and property, and for the preservation of the public health, safety, and prosperity of the municipality and its inhabitants as may be necessary to carry into effect the powers and duties conferred and imposed by this act or by any law of this state." This, it does not seem to me, is specific enough to include the right to censor plays given in a theater duly licensed by the municipality.
In 28 Cyc. 705, the subject of general welfare clauses is discussed and it is stated, citing numerous authorities:
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