Thayer Amusement Corp. v. Moulton

• Court: Rhode Island Supreme Court
• Writing for the Court: CONDON, Justice
• Citation: Thayer Amusement Corp. v. Moulton, 7 A.2d 682, 63 R.I. 182 (R.I. 1939)
• Decision Date: 17 July 1939
• Docket Number: No.724.
• Parties: THAYER AMUSEMENT CORPORATION v. MOULTON et al.

7 A.2d 682

THAYER AMUSEMENT CORPORATION

v. MOULTON et al.

No.724.

Supreme Court of Rhode Island.

July 17, 1939.

Certiorari proceeding by the Thayer Amusement Corporation against Benjamin P. Moulton and others, constituting the Bureau of Police and Fire of the City of Providence.

Writ of certiorari quashed.

William H. Edwards, Bancroft Littlefield, and Edwards & Angell, all of Providence, for petitioner.

Francis J. O'Brien, of Providence, for respondents.

CONDON, Justice.

This is a petition for a writ of certiorari directed to the bureau of police and fire of the city of Providence to send up its records relating to its action and decision with respect to certain applications and petitions of the Thayer Amusement Corporation for licenses to show the motion picture "Professor Mamlock" at the Avon Theatre on Sunday, March 26, 1939, and on the weekdays next following. After a preliminary hearing before us on whether the writ should issue, we issued the writ, and the cause was later fully heard on its merits.

The records of the bureau show that, on January 31, 1939, its amusement inspector reported to the bureau that the Avon Theatre was planning to show "Professor Mamlock" and that the motion picture had been privately exhibited to him and his assistant. As a result of this private view, he and his assistant disapproved of the picture for public showing in the city of Providence, on the grounds that it was communistic propaganda; that it tended to provoke class and race hatred; and that it did not have the approval of the national board of review of motion pictures. There is an express provision, in the statutes, permitting the showing of motion pictures on Sunday, that no license shall be issued for any picture not approved by that board. P.L. 1926, chap. 791. After the members of the bureau had personally viewed the picture at the request of the manager of the Avon Theatre, the bureau confirmed the action of its inspector and banned the picture.

The petitioner had not then made any formal application for a license to show the picture. Later, however, on March 8, 1939, petitioner's counsel appeared before the bureau and asked the members to reverse their decision banning the picture or to suggest changes to be made in it that would satisfy them. The bureau denied both requests, and intimated that no formal application for a license had been filed. Counsel then said applications would be filed and asked that a hearing be granted. An application for a license to show the picture on Sunday, March 26, 1939, and an application for a license for the week days following were later filed, together with a formal petition for a hearing on the same. Each application was formally disapproved by the amusement inspector of the bureau on March 11, 1939, and the bureau formally denied them in meeting on March 15, 1939, without granting the request for a hearing.

Accompanying the record and forming a part thereof are a number of letters received by the bureau with reference to their action in banning the picture and also some published comment and criticism of the picture in the National Board of Review Magazine and in newspaper clippings. This information, we assume, was before the board when it denied the petitioner's formal applications on March 15, 1939.

The petitioner now contends that this court should review the action of the bureau, on the ground that it committed an error of law in denying petitioner's applications, without granting it a hearing, and also that there was no legally competent evidence before the bureau upon which to base its decision. No attack is made upon the jurisdiction of the bureau to refuse or grant a license in its discretion, but merely an attack upon the decision itself as an abuse of that discretion.

However, the petitioner further contends that, if the action of the bureau is not beyond the authority granted to it by the statutes under which it purports to function, then those statutes are unconstitutional and void, because they violate article I, sees. 10 and 20, article III and article XII, section 1 of the constitution of Rhode Island, and article XIV of amendment, section 1 of the constitution of the United States, U.S.C.A.

The respondent bureau denies these contentions of the petitioner and strongly urges that certiorari does not lie to review its action in this particular case. It points to the fact that the procedure which it followed, in considering these applications and in finally denying them, is of long standing and has been uniformly adopted as the proper manner in which to exercise the power granted to it by the legislature to license shows and exhibitions. It also asserts, and the assertion is not denied, that this procedure is followed in considering applications from all other theatres in the city. Moreover, the respondent argues that "the General Assembly apparently vested the power" to grant or refuse licenses for shows and exhibitions "in licensing bodies throughout the state and gave them very broad powers"; and it adds that "it is fair to conclude that the General Assembly intended for the licensing bodies to have almost absolute power with regard to the granting or withholding of a license."

The record does not show that the respondent bureau has adopted any rules or regulations governing the granting or refusing of motion-picture licenses; but the bureau contends that the statute does not require it to do so and cites as authority for this contention State v. Barrett, 20 R. I. 313, 38 A. 949. The petitioner, although it does not appear to have covered the point in its brief, alleges in its petition that this failure of the bureau to prescribe rules and regulations constitutes not only a violation of the enabling act authorizing the bureau to grant or refuse licenses but also of the above-cited provisions of the federal and state constitutions. Thus a question of statutory construction and one of constitutional law are raised by the petitioner, both as to the bureau's procedure and as to the statute itself, if it is found that such procedure does not violate the statute.

The matter in controversy may thus be said to raise the following questions: 1. Does certiorari lie to review the action of the bureau in this particular case? 2. Did the bureau's refusal to grant the petitioner a formal hearing on its applications constitute a violation of the enabling statute and a denial of due process of law? 3. Does the record disclose that the bureau denied said applications without any competent, that is substantial, evidence to support its decisions? 4. Is the statute granting the bureau the power to license motion picture shows constitutional, if it does not require the bureau to hold a hearing and afford the applicant for such license an opportunity to offer evidence in support of its application, or if it vests in the bureau an absolute discretion to grant or refuse licenses?

The first question may be answered in the affirmative. The action of the bureau, in denying the petitioner's applications for licenses, is a final determination. The statute authorizing the bureau to act in these matters does not provide an appeal from its decisions. In this particular case, the petitioner has clearly raised several questions of law, and there does not appear to be any adequate remedy that can be invoked for the determination of such questions, except certiorari.

In a situation of this kind, whether or not the bureau is acting in a judicial capacity is not important, as questions of law have been raised which call for the exercise of the broad powers of this court under the state constitution. "The office of the writ" of certiorari "has been somewhat extended in this state by statute and by the decisions of this court for the purpose of carrying out the revisory and appellate power conferred on this court by the Constitution. * * *" Cohen v. Superior Court, 39 R.I. 272, 275, 97 A. 794, 796; State v. Coleman, 58 R.I. 6, 190 A. 791, 109 A.L.R. 787. This court has also said, after holding that the determination of questions of fact by an inferior tribunal is, in general, conclusive, "yet by the common law a supreme court has power to review their proceedings upon questions of jurisdiction and questions of law, these questions being of a judicial nature." Lonsdale Company v. Board of License Commissioners, 18 R.I. 5, 10, 25 A. 655, 656.

The questions of law which the petitioner has raised, involving construction of the statute and the conformity of the statute to the federal and state constitutions, are in themselves sufficient to warrant the exercise of our discretion in granting the writ, whether or not the respondent was exercising a judicial function or a purely administrative function in considering the petitioner's applications for licenses. But, in the absence of such questions being raised, we repeat what has been formerly said by this court in Greenough v. School Committee of Pawtucket, 27 R.I. 427 at page 428, 62 A. 978: "It is well settled that in this state the common-law limitations of certiorari prevail which confine it to the review of the judicial action of inferior courts or of public officers or bodies exercising under the law judicial or quasi judicial functions." See also Messier v. Healey, 55 R.I. 1, 175 A. 828.

Having come to the conclusion that it is our duty to issue the writ and bring up the bureau's record of its action for our examination it now becomes necessary to determine just what function the bureau performs in granting or refusing a license for a public showing of motion pictures. Is it a purely administrative function necessarily delegated to the bureau to carry out more effectively the policy of the legislature or is it a combination of that function and a judicial or quasi-judicial function more or less inextricably intertwined with each other? If it is the latter, then, under our decisions in this state, its action may be...