United Artists Corp. v. Thompson

• Decision Date: 17 June 1930
• Docket Number: No. 19999.,19999.
• Parties: UNITED ARTISTS CORPORATION v. THOMPSON et al.
• Court: Illinois Supreme Court

339 Ill. 595

171 N.E. 742

UNITED ARTISTS CORPORATION

v.THOMPSON et al.

No. 19999.

Supreme Court of Illinois.

April 17, 1930.

As Modified on Denial of Rehearing June 17, 1930.

Suit by the United Artists Corporation against William Hale Thompson and others. Decree for complainant, and defendants appeal.

Reversed and remanded, with directions.Appeal from Circuit Court, Cook County; Harry M. Fisher, judge.

Samuel A. Ettelson, Corp. Counsel, William V. Daly and James N. Kearns, all of Chicago, for appellants.

John F. Higgins and Myer H. Gladstone, both of Chicago, for appellee.

HEARD, J.

This case comes to this court on an appeal from a decree of the circuit court of Cook county enjoining and restraining the appellants, the city of Chicago and its officers, from in any manner interfering with the exhibition of a talking motion picture called ‘Alibi,’ owned by the appellee, the United Artists Corporation, and further enjoining and restraining them from confiscating such picture, its films and prints, from interfering with the transfer and transportation of such picture and the films, and from continuing to refuse to issue a permit for the showing or exhibition of said talking motion picture.

The bill of complaint sets forth certain sections of the Municipal Code of Chicago. Section 2785 makes it unlawful for any one to exhibit a motion picture without having secured a permit therefor from the superintendent of police, and further makes it unlawful to lease or transfer such picture or films, or apparatus from which a series of pictures can be produced, to any exhibitor, without first securing a permit therefor from the superintendent of police. Section 2786 provides for the application for a permit and requires the superintendent of police to inspect the films, etc., or cause them to be inspected, and to issue a permit or deny the same within three days after inspection. Section 2787 defines immoral pictures and forbids the issuance of a permit for the same. If the picture is immoral or obscene, or portrays depravity, criminality, or lack of virtue of a class of citizens of any race, color, creed, or religion, and exposes them to contempt, derision, or obloquy, or tends to produce a breach of the peace or riots, or purports to represent any hanging, lynching, or burning of a human being, it shall be the duty of the superintendent of police to refuse such permit; otherwise it will be his duty to grant the same. The section provides for an appeal to the mayor in the event the superintendent of police refuses a permit. The appeal shall be presented in the same manner as the original application to the superintendent of police, and the action of the mayor on any application for a permit shall be final. Section 2790 was set forth in the bill of complaint as follows:

‘Sec. 2790. No Transfer of Objectionable Films-Confiscation-Penalty.-In case a permit shall be refused for any such moving picture plates, films, rolls or other like articles or apparatus from which a series of pictures for public exhibition can he produced, it shall be unlawful for any person, firm or corporation to lease or transfer the same to any exhibitor of moving pictures or otherwise put same into circulation for purposes of exhibitionwithin the city. In every case where such objectionable moving picture plates, films, rolls or other like articles or apparatus from which a series of pictures for public exhibition can be produced shall be put into circulation contrary to the provisions of this section the same shall be confiscated, and in addition thereto the person, firm or corporation so leasing, transferring or putting the same into circulation shall be fined not less than $50 nor more than $200 for each offense.’

The bill of complaint further sets forth the creation and existence of a censor board, and that the appellee made due application for a permit to the superintendent of police, who refused it, assigning in a letter of rejection as his reasons for such action: ‘This picture portrays immorality, criminality and depravity. It features the attempted robbery of a warehouse by a gang of criminals; the murder of the policeman who caught the thieves in the act; shocking and unlawful third degree methods on the part of the police to force a confession from one of the gangsters; the murder of a man after it was discovered that he was a detective in disguise; the clever plan used by the gang to establish an alibi to cover up the robbery and the murder. The police methods used are brutal and revolting, and would tend, in the opinion of the censor board, to create contempt and hatred for the entire police force.’

The bill further alleged the expenditure of about $600,000 for the making and manufacture of such talking motion picture and the existence of contracts in Chicago with about sixty exhibitors; that the superintendent of police did not view the picture; that it did not portray immorality, criminality, or depravity nor feature those things which were enumerated in the letter of rejection. The bill further alleged that the picture had passed the censor boards of various other states and has been exhibited in various cities, and that the authorities of the city of Chicago were the first civic authorities that refused to permit its exhibition.

The bill of complaint questions the constitutionality of section 2790 as being in contravention of sections 2, 4, and 6 of article 2 of the Constitution of the state of Illinois. The bill further sets forth that the General Assembly has legislated upon the matters contained in section 2787 and on the penalties provided for the violation thereof, and that the legislation by the state of Illinois supersedes the ordinance of the city of Chicago.

A preliminary injunction was entered by the court in accordance with the prayer for relief in the bill, but the court prohibited the appellee from exhibiting the picture until the court had viewed the same and had ruled on the motion of appellants to dissolve the temporary injunction.

The appellants answered the bill of complaint, and by agreement a hearing was had on the motion of the appellants to dissolve the temporary injunction and on the bill of complaint and the answer. The court thereupon denied the motion of the appellants to dissolve the temporary injunction, and found, practically, that the appellee's allegations of fact in its bill of complaint were true, and ordered a permanent decree in accordance with the prayer for relief in the bill of complaint.

It is claimed by appellants that appellee's remedy, if any, was in an action at law for mandamus instead of a suit in equity for an injunction. Ordinarily the proper remedy for a party aggrieved by the wrongful refusal of a city official to grant him a permit where the granting of such permit is made by city ordinance a condition precedent to the doing of some act is by a suit in mandamus to compel the issuance of such permit. Klever Karpet Kleaners v. Chicago, 323 Ill. 368, 154 N. E. 131, 49 A. L. R. 103. In the instant case, however, appellee is not by this suit attempting to compel the issuance of such permit, but by its bill alleges that the ordinance requiring such permit is invalid, and claims that therefore it has a rught to exhibit the picture, ‘Alibi,’ without such permit. The bill alleges that the commissioner of police has threatened that, in case such picture is exhibited without such permit, he will confiscate it under the provisions of the void ordinance, which would result in depriving the appellee of its property without due process of law. In such case appelleecould not be required to stultify itself by bringing suit in mandamus to compel the issuance of a permit, which it claims the city has no right to require or issue, by reason of the invalidity of the ordinance. Neither can it be required to take the chance of an arrest and the summary, arbitrary, and unlawful confiscation of its property without due process of law and thereby be irreparably injured by reason of inability to reproduce the same. In Western Theological Seminary v. City of Evanston, 325 Ill. 511, 156 N. E. 778, 782, in a suit for an injunction to restrain the enforcement of a void ordinance, it is said: ‘The privilege of every citizen to use his property according to his own will is both a liberty and a property right. ‘Liberty’ includes not only freedom from servitude or restraint, but also the right of every man to be free in the use of his powers and faculties to pursue such occupation or business as he may choose, and to use his property in his own way and for his own purposes, subject only to the restraints necessary to secure the common welfare. Ruhstrat v. People, 185 Ill. 133, 57 N. E. 41,49 L. R. A. 181, 76 Am. St. Rep. 30;Frorer v. People, 141 Ill. 171, 31 N. E. 395,16 L. R. A. 492;Haller Sign Works v. Physical Culture Training School, 249 Ill. 436, 94 N. E. 920,34 L. R. A. (N. S.) 998. Both liberty and property are subject to the police power of the state, under which new burdens...