Mutual Film Corporation of Missouri v. Hodges

Appellant, which we shall call complainant, it being such in the court below, is a Delaware corporation and the defendants are officers of the state of Kansas.

The bill attacks the validity of a law of Kansas censoring moving picture films, and prays an injunction against its enforcement. The relief was denied and the bill dismissed. This appeal was then allowed.

The bill alleges that complainant is engaged in local and interstate commerce in the renting, leasing, selling, and delivery of "films" in the state of Kansas and other states, which films have been and now are being used in the motion picture show business in Kansas, as well as elsewhere.

It is alleged that a film 'may be a scenario of an original story or theatrical production, conceived by a writer or author. This is a sketch of a plot, or chief incidents of a libretto or play, a drama, a prose or poetical composition, depicting human life and conduct on a stage. It may be also a reproduction of animated objects, scenery, picturesque views or animals, and is descriptive, educational, instructive, as well as amusing.'

The manner of the production of a film is stated, and that there are in the state about five hundred moving picture theaters using the films, and each theater uses an average of three films a day.

That a revenue in the shape of a tax of $2 is attempted to be imposed upon each film censored, which means a tax of $6 per day on the films sold, rented, or used in each show, approximating $3,000 per day on the picture show business in the state, and making a total revenue of $40,000 for the first three months from the beginning of the enforcement of the act, and thereafter a revenue of thousands of dollars to be imposed as a tax upon films printed and produced in Kansas.

That the act places a tax of about $300 a week on the films rented, hired, and shipped into the state for the period of three months, and about $6,000 for the first year, and means thereafter a tax on the interstate commerce business of complainant, a similar tax to be imposed on all films produced and printed and sent into Kansas.

That upon the films brought into the state the duty of censorship is imposed upon the state superintendent of public instruction, thereby attempting to place in him the exclusive power of censorship of all films sent into the state for use in the state, and the power to review and stamp with his approval the films used, shipped, or rented or sent into the state; and the act provides that no film shall be exempt until a fee of $2 be paid, and that all fees shall be paid into the state treasury and credited to the general fund of the state. That on account of the way the business is conducted, complainant and other film exchanges must necessarily bear the expense of censorship, otherwise the amount of the charges therefor would be necessarily doubled or trebled.

The bill attacks the law for various reasons, having foundation, it is alleged, in the provisions of the Federal and state Constitutions, which may be summarized as follows: The prohibition upon the state to lay an import or export duty; or to abridge the privileges and immunities of citizens of the United States, the statute of the state effending in this as it places an embargo and prohibition upon citizens of other states in transacting a lawful business in Kansas. The statute violates the Bill of Rights of the United States and of the state of Kansas, as it deprives of life, liberty, and property without due process of law, and particularly of the freedom to say, write, or publish whatever one will on any subject, 'being only responsible for all abuse of that liberty,' and that there can be no abuse until it is judicially determined.

It is alleged that the attorney general of the state threatens to enforce the act, although it seems to be charged that he is without the means to do so, and arrests have been made on information filed in one of the courts of the state.

The answer of defendants asserts in elaborate allegations the necessity of the act and of the censorship of films; that it is not primarily a revenue measure, but is an exercise in good faith of the police power of the state for the protection of the public morals, and that 'the legislature, in its unimpeachable wisdom, believed that uncensored pictures were detrimental to the morals and perversive of true education.' In denial of any grievance of complainant under the act the answer alleges the following: 'Answering still further, defendants allege that this complainant has no interest in the act of the Kansas legislature complained of, nor does the complainant exhibit pictures to the people of Kansas in moving picture shows, or elsewhere, nor does the complainant come directly under the provisions of said act, nor can the complainant, as a Delaware corporation licensed to do business in the state of Missouri, transact interstate business within the state of Kansas either with or without the payment of an inspection fee under the act complained of, nor is the complainant liable to any criminal prosecution under the act complained of, but only the persons, firms, partnerships, companies, and corporations which actually do exhibit pictures uncensored within the state of Kansas in violation of the act. And defendants further allege that upon its own showing this complainant has brought only mere moot questions into this honorable court.'

A hearing upon an interlocutory or temporary injunction was waived and the case heard upon its merits, one judge only sitting, the parties agreeing thereto.

Affidavits in support of the bill were filed. One of them was by an exhibitor of films within the state, and showed the number of theaters owned by him, the number of films received by him and the price paid therefor, and that they were manufactured elsewhere than in Kansas. It affirmed that he never exhibited nor has he ever seen exhibited indecent, immoral, obscene, or sacrilegious pictures or films; that among the films exhibited by him is a film known as the 'Mutual Weekly,' which consists of photographs of events of current interest throughout the world. A list of the subjects represented is given.

An affidavit of one of the managers of the complainant was also filed, giving an account of the production of the films and their distribution. After a detail of this by complainant and by other 'film exchanges' renting out films in the state, and which operate independently of complainant, it is said:

'In my opinion the only possible method of continuing the rental of film in the state of Kansas, if the proposed censorship law were to go into effect, would be for the film exchanges to procure the approval required by statute. There are a large number of motion picture exhibitors in the state of Kansas,-about five hundred (500). I do not believe it would be in any wise practicable for the exhibitors themselves to procure the approval of the different films. In the first place, the same subjects are rented from different film exchanges and are shown in different theaters concurrently. No exhibitor would be in a position to know whether the subject had been approved or not, without submitting the same to the superintendent of public instruction. The result would be that in almost every case each reel of film received by an exhibitor on rental for exhibit would have to be sent to Topeka for approval, because the exhibitor would not, at his peril, exhibit the same.

'The film exchange, on the other hand, could, with less difficulty than the exhibitor, ascertain whether a film had been approved or not, because the film exchange itself handles large quantities of films, and at least as to its own produce could keep track of the approval or nonapproval thereof, therefore making it absolutely necessary for this complainant, or the other film exchanges, to submit before renting out their films to their patrons in Kansas the films for approval.

'In the second place, in my opinion, no exhibitor would consent to pay the censoring charge on any particular reel or reels of film, because he would insist that the film be rented out to some other exhibitor in Kansas before him, so that someone else should pay the tax.'

Messrs. Walter N. Seligsberg, Eugene Batavis, Jackson H. Ralston, William B. Sanders, and Harold T. Clark for appellant.

Mr. John S. Dawson, Attorney General of Kansas, and Mr. Frank P. Lindsay for appellees.

Statement by Mr. Justice McKenna:

[Argument of Counsel from pages 253-256 intentionally omitted]

Mr. Justice McKenna after stating the case as above, delivered the opinion of the court: