United States District Court, Northern District of Illinois, E.D
May 29, 1959
TIMES FILM CORPORATION, A NEW YORK CORPORATION, PLAINTIFF,
CITY OF CHICAGO, A MUNICIPAL CORPORATION, RICHARD J. DALEY AND TIMOTHY J. O'CONNOR, DEFENDANTS.
The opinion of the court was delivered by: Campbell, Chief Judge.
This action arises pursuant to the Complaint filed by Times
Film Corporation against the City of Chicago, Mayor Richard J.
Daley and Police Commissioner Timothy J. O'Connor, and is
submitted on the basis of a stipulation of facts for final
Pursuant to the provisions of Sections 155-1 to 155-7 of the
Municipal Code of Chicago, plaintiff applied to defendant,
O'Connor for a permit to exhibit the motion picture, "Don Juan".
Defendant O'Connor notified plaintiff that he would not issue
such a permit because such permit could only be granted after the
film had been produced at the office of the Commissioner of
Police for examination. Plaintiff refused to so submit such film,
but appealed to defendant Daley who denied the appeal. Because of
plaintiff's refusal to produce the film at the office of the
Commissioner of Police and the consequent denial of a permit,
plaintiff is prohibited from exhibiting the motion picture "Don
Juan" under penalty of a fine of not less than $50.00 nor more
than $100.00 for each day the picture is exhibited without a
Plaintiff alleges that said ordinance is void on its face as a
prior restraint in violation of the 1st and 14th Amendments to
the Constitution of the United States, and prays for injunctive
relief in order to exhibit the said film in the City of Chicago.
It is my opinion that I am without jurisdiction to hear this
cause on many grounds.
First. Before I can be called upon to pronounce this Statute
unconstitutional — the most "important and delicate duty of this
Court which is only to be used as a "last resort" — there must
exist a "justiciable controversy." In my opinion, no such
controversy exists. Muskrat v. United States, 219 U.S. 346, 31
S.Ct. 250, 55 L.Ed. 246; Skelly Oil Co. v. Phillips,
339 U.S. 667, 672, 70 S.Ct. 876, 94 L.Ed. 1194; National Mutual Ins. Co.
v. Tidewater Transfer Co., 337 U.S. 582, 583, 597-598, 69 S.Ct.
1173, 93 L.Ed. 1556; United States v. Johnson, 319 U.S. 302, 63
S.Ct. 1075, 87 L.Ed. 1413; Willing v. Chicago Auditorium,
277 U.S. 274, 48 S.Ct. 507, 72 L.Ed. 880; Liberty Warehouse Co. v.
Grannis, 273 U.S. 70, 74-76, 47 S.Ct. 282, 71 L.Ed. 541;
Liverpool, N.Y. & P. Steamship Co. v. Emigration Commissioners,
113 U.S. 33, 39, 5 S.Ct. 352, 28 L.Ed. 899; Oldland v. Gray, 10
Cir., 179 F.2d 408; Coffman v. Federal Laboratories, D.C.,
55 F. Supp. 501. Nor has there been presented, a "substantial"
federal question. Gully v. First National Bank, 299 U.S. 109,
114, 57 S.Ct. 96, 81 L.Ed. 70. Nor has plaintiff suffered a
direct or threatened injury. Hague v. C.I.O., 307 U.S. 496, 507,
508, 59 S.Ct. 954, 83 L.Ed. 1423; Frothingham v. Mellon,
262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078.
Second: In essence, the Complaint is concerned with the
exhibition of the film, "Don Juan" in the City of Chicago. Had
plaintiff submitted said film for examination by the Commissioner
of Police as the Ordinance requires, the Commissioner may have
approved the film which would have, of necessity, dispelled any
need for legal action. The cases are legion which hold that one
who has failed to make proper application, is not at liberty to
complain because of his anticipation of improper or invalid
action. Bourjois v. Chapman, 301 U.S. 183, 188, 57 S.Ct. 691, 81
L.Ed. 1027; Dist. of Columbia v. Clawans, 300 U.S. 617, 57 S.Ct.
660, 81 L.Ed. 843; Smith v. Cahoon, 283 U.S. 553, 562, 51 S.Ct.
582, 75 L.Ed. 1264; Lehon v. City of Atlanta, 242 U.S. 53, 56, 37
S.Ct. 242, 61 L.Ed. 145; Gundling v. Chicago, 177 U.S. 183, 186,
20 S.Ct. 633, 44 L.Ed. 725. And see Kingsley International Pic.
Corp. v. City of Providence, R.I., D.C., 166 F. Supp. 456, 460.
Plaintiff cannot seriously contend that prior restraint of
motion pictures is, per se, a violation of the 1st and
14th Amendments. Joseph Burstyn Inc. v. Wilson, 343 U.S. 495,
502, 72 S.Ct. 777, 96 L.Ed. 1098. Plaintiff has also failed to
analyse Times Film Corporation v. City of Chicago, 355 U.S. 35,
78 S.Ct. 115, 2 L.Ed.2d 72 which presumptively sustains the
constitutionality of the Ordinance in question in the light of
American Civil Liberties Union v. City of Chicago, 3 Ill.2d 334,
121 N.E.2d 585, though reversing on the "facts". It is therefore
impossible to contend that the Ordinance is "void on its face".
(I take into consideration Paramount Film Distributing Corp. v.
City of Chicago, D.C., 172 F. Supp. 69, which recently declared
one section of the Ordinance unconstitutional).
Third: Plaintiff has not been restricted from the exhibition of
the film "Don Juan" except by the statutory sanction of a fine.
That such a fine would be levied against plaintiff if plaintiff
exhibited said film is not only hypothetical but also "too remote
and abstract an inquiry for the proper exercise of the judicial
function". International Longshoremen's Union v. Boyd,
347 U.S. 222, 224, 74 S.Ct. 447, 448, 98 L.Ed. 650; United Public Workers
v. Mitchell, 330 U.S. 75, 89-91, 67 S.Ct. 556, 91 L.Ed. 754;
State of New Jersey v. Sargent, 269 U.S. 328, 46 S.Ct. 122, 70
L.Ed. 289. This cause falls within the self imposed restraints
upon the federal courts so well expressed by Mr. Justice Brandeis
in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 345 et
seq., 56 S.Ct. 466, 80 L.Ed. 688. Also see United States v.
International Union, etc., 352 U.S. 567, 590, 591, 77 S.Ct. 529,
1 L.Ed.2d 563.
Fourth: Without specific allegations, plaintiff broadly
contends that said Ordinance is void on its face as a prior
restraint in violation of the 1st and 14th Amendments to the
Constitution of the United States. This type of "scatter-shot"
attack upon the constitutionality of a statute has been expressly
condemned. Staub v. City of Baxley, 355 U.S. 313, 332, 78 S.Ct.
277, 2 L.Ed. 302.
Fifth: Here, since plaintiff has not and will not suffer an
immediate and irreparable harm, I am without equitable
jurisdiction to grant the injunctive relief requested. Kingsley
International Pic. Corp. v. City of Providence, R.I., supra.
Douglas v. City of Jeanette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed.
1324. A federal court of equity should only interfere with the
enforcement of state laws to prevent irreparable injury which is
clear and imminent. American Federation of Labor v. Watson,
327 U.S. 582, 593, 66 S.Ct. 761, 90 L.Ed. 873.
Judgment for defendants. Cause dismissed at plaintiff's costs.
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