Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division.
Before ALSCHULER and SPARKS, Circuit Judges, and LINDLEY, District Judge.
Under the ordinances of the city of Chicago, the mayor is authorized to issue and revoke licenses to theaters. The authority to revoke is conditioned upon the existence of the fact that the licensee has violated or is violating the city ordinances or state statutes. The mayor, having witnessed the production of the play "Tobacco Road," found the same to be indecent and degrading, and the production of same, therefore, to be a violation of the city ordinances, and revoked the license of the theater in which it was produced. The District Court awarded a preliminary injunction restraining the mayor from carrying the revocation into effect, and this appeal followed.
The pertinent sections of the ordinance are included in the footnote.*fn1
The evidence submitted includes the script of the play as produced, and certain affidavits of various parties, most of whom had seen the production upon the stage. These witnesses are far from accord. Eminent citizens bear witness to totally different impressions from their personal observation of the play. On the one hand, an ex-governor, a circuit judge, judges of the municipal court, members of the bar, and other credible witnesses testify that certain scenes in the play portray vividly, with wealth of revolting detail, sexual excitement, sensuous emotion, and lustful passion; present obvious suggestions of seduction, adultery, and incest, and repeated profanity and blasphemy. They say that gestures and actions of the actors, not shown by the script, tend strongly to degrade and to debase the mind and moral standards of the observers.
For the appellees, eminent clerics, a professor of literature, members of civic dramatic organizations, well-known writers, and other witnesses, prominent in the city, tell us that the production of the play is of Zola-like, realistic character, representative and reproductive of a phase of life in the southern part of the United States so sordid and revolting as to inspire in hearers the zeal of crusaders to bring about the removal of such festers from our national social structure. These witnesses see in the play another "Uncle Tom's Cabin," the widespread production of which will create and disseminate a country-wide demand for a healthful change in the education andn environment of human beings living under the sordid conditions pictured.
We have read the script and the affidavits of those who have seen and heard the production. The members of this court, and apparently the district judge, have not seen the play produced. The motives of the respective witnesses are not to be impeached. They are men and women of such character, so lacking in personal interest, that their good faith, high intent, and honesty of purpose must stand unchallenged and above question. The conflict among them arises out of the variant mental and intelluctal attitudes from which the play has been viewed. One sees obscenity unexcused by any motive and unredeemed by good intent. The other sees revolting realism wholly excused, however, by the further and nobler intent of inspiring desire to remedy evil conditions.
In cases such as this, at least, the judiciary is not a superior arbiter of right or wrong, or the custodian of the moral or ethical standards of citizens. Rather, the court is part of one of the co-ordinate branches of government charged with one duty and burdened with one responsibility -- that of determining whether under the facts, once determined, an act done or threatened, either by private citizens or public official is legal, in accordance with the law. And just as courts are loath, except in the clearest of cases, do declare an act of the Legislature invalid, so, too, they are loath, except in the clearest of cases, to declare invalid the acts of the other co-ordinate branch of the government, the executive or administrative department. Indeed, they have no power at will to invalidate official administrative acts. They may inquire and determine only whether such acts are legal. Such inquiry necessitates, incidentally to its correct reply, the correlated inquiry of whether the administrative or legislative act is arbitrary, without basis for legal action -- whether, in short, it is reasonable within the legal power of that governmental department whose act is complained of.
While some courts, in cases where revocation of a right or license is conditional upon the fact that the statutes or ordinances have been violated, have held that a prior conviction is an essential condition precedent to administrative action, the contrary is quite generally the rule, and the administrative officer or other fact-finding body may pass upon the question of violation, preliminary to executive or legislative action. Pearson v. Zehr, 138 Ill. 48, 29 N.E. 854, 32 Am.St.Rep. 113; Sings v. City of Joliet, 237 Ill. 300, 86 N.E. 663, 22 L.R.A.(N.S.) 1128, 127 Am.St.Rep. 323; Wiggins v. City of Chicago, 68 Ill. 372; Malkan v. City of Chicago, 217 Ill. 471, 75 N.E. 548, 2 L.R.A.(N.S.) 488, 3 Ann. CAs. 1104; American School of Magnetic Healing v. McAnnulty, 187 U.S. 94, 23 S. Ct. 33, 47 L. Ed. 90. Under this rule, however, to furnish due process of law, it is equally logical and judicially well settled that such administrative action should be subject to judicial review. Ohio Valley Water Co. v. Ben Avon Borough, 253 U.S. 287, 40 S. Ct. 527, 65 L. Ed. 908; Southern Ry. Co. v. Com. of Virginia, 290 U.S. 190, 54 S. Ct. 148, 78 L. Ed. 260.
The extent of such review is not so generally agreed upon, but in the United States courts, it is the established rule that whether established facts, found by the administrative body, amount to a violation, becomes a question of law for the court.
Thus where an injunctcion was granted against an order of the postmaster general barring certain literature from the mails because in violation of federal statutes, the Supreme Court, in American School of Magnetic Healing v. McAnnulty, 187 U.S. 94, 23 S. Ct. 33, 39, 47 L. Ed. 90, said: "Conceding, arguendo, that when a question of fact arises, which, if found in one way, would show a violation of the statutes in question in some particular, the decision of the Postmaster General that such violation had occurred based upon some evidence to that effect, would be conclusive and final, and not the subject of review by any court, yet to that assumption must be added the statement that, if the evidence before the Postmaster General, in any view of the facts, failed to show a violation of any Federal law, the determination of that official that such violation existed would not be the determination of a question of fact, but a pure mistake of law on his part, because the facts, being conceded, whether they amounted to a violation of the statutes would be a legal question, and not a question of fact." To the same effect is Swearingen v. United States, 161 U.S. 446, 16 S. Ct. 562, 40 L. Ed. 765.
Otherwise stated, this legal question is whether there was sufficient evidence before the administrative officer to justify a finding of violation. In other words, the judiciary is not permitted to substitute its judgment upon disputed facts for that of the administrative officer. It may inquire only whether those facts include substantial evidence sufficient to justify a finding of violation. Stated otherwise again, the limited question submitted to the court is whether the administrative officer has acted arbitrarily and, therefore, illegally.Thus in Ambruster v. Mellon, 59 App.D.C. 341, 41 F.2d 430, 432, the Court of Appeals for the District of Columbia said: "The statute accordingly invested the appellees with authority to determine whether imported drugs were adulterated or misbranded in the sense of the act, when offered for entry into this country. Such authority is not simply ministerial in character, but calls for a finding of facts and the exercise of judgment upon the facts when found. Accordingly the exercise of this authority by the appellees will not be reviewed by the courts unless it has been capriciously or arbitrarily exercised."
That the Supreme Court agrees that the exercise of judgment upon facts by an administrative officer is not subject to judicial review except to determine whether the actaion complained of was arbitrary, i.e. unsupported by sufficient evidence, is apparent from the language in Riverside Oil Co. v. Hitchcock, 190 U.S. 316, 23 S. Ct. 698, 702, 47 L. Ed. 1074, as follows: "That the decision of the questions presented to the Secretary of the Interior was no merely formal or ministerial act is shown beyond the necessity of argument. * * * Whether he decided right or wrong, is not the question. * * * If this writ were granted we would require the Secretary of the Interior to repudiate and disaffirm a decision which he regarded it his duty to make in the exercise of that judgment which is reposed in him by law, and we should require him to come to a determination upon the issues involved directly opposite to that which he had reached, and which the law conferred upon him the jurisdiction to make. Mandamus has never been ...