(dissenting). This is a proceeding under article 78 of the Civil Practice Act to review the determination of the State Commissioner of Education denying a license to exhibit the film “ Tomorrow's Children.'' The picture is a forceful and dramatic argument against the enactment of statutes which, under certain circumstances, permit enforced operations to prevent procreation. Several of the States have such statutes. One was enacted in this State (Laws of 1912, chap. 445), which created a Board with power to determine whether the mental condition of any of “ the feeble-minded, epileptic, criminal and other defective inmates confined in the several State hospitals for the insane, State prisons, reformatories and charitable and penal institutions ” would be substantially improved by such an operation and whether their children would be likely to inherit a tendency to crime, insanity, feeble-mindedness, idiocy or imbecility, and giving the Board power to require such an operation upon an affirmative determination of either of the foregoing inquiries. Our statute required that the Board, preliminary to making its determination, examine into the mental and physical condition and the record and former history of the patient. The statute was repealed, effective May 10, 1920. (Laws of 1920, chap. 619.) Thus the film deals with a disputatious subject of public concern.
The Commissioner of Education may refuse a license upon any or all of the following grounds: That a film is (1) obscene, (2) indecent, (3) immoral, (4) inhuman, (5) sacrilegious, (6) of such a character that its exhibition would tend to corrupt morals, (7) incite to crime. No findings of fact were made by the Commissioner, but he stated the following conclusion: “ I have come to the conclusion that said picture is ‘ Immoral,’ ‘ Will Tend to Corrupt Morals ' and ‘ Will Tend to Incite to Crime.'” Expressio unius est exclusio alterius. The Commissioner has found that the film was not obscene, indecent, inhuman or sacrilegious. The portion of the decision which deals with immorality offends against the requirement that findings of fact be made. The petitioners were entitled to an opportunity to challenge the undisclosed findings of fact which the Commissioner made in support of his conclusion. The meaning of “ immoral,” particularly in view of the exclusion *482of “ obscene ” and “ indecent ” is uncertain. Immoral and moral are words which in a general sense deal with social, civic and religious conduct. Immoral is defined by Webster as “ Not moral; inconsistent with rectitude, purity, or good morals; contrary to conscience or the moral law; wicked; unjust; vicious; licentious; ” also as the opposite of moral, which is defined as being “ Characterized by practical excellence, designating, or relating to, the science or philosophy of conduct; hence, relating to, or regarded with respect to, the qualities and consideration, with which morals deal, as questions of right and wrong or virtue and vice; the dictates of the moral sense; moral conduct; — distinguished from immoral, and sometimes, in reference to merely social righteousness, from religious.” It is hardly to be assumed that the Legislature used the word “ immoral ” in the broad sense of the definition. The word as used in statutes of this kind has to do with the “ standards of right and wrong, specifically as to the sexual relation.” (People v. Wendling, 258 N. Y. 451, 453; Halsey v. New York Society, 234 id. 1; People v. Eastman, 188 id. 478.) The film contains nothing lewd or lustful. No part of the human body is exposed to view with the possible exception of a few square inches of the abdomen visible in the preparation for an operation. It would require a prurient imagination to find anything of the unchaste or indecent. The determination should be annulled for failure to find facts and the matter remitted. (Matter of Elite Dairy Products v. Ten Eyck, 271 N. Y. 488, 498.)
The attorney for the Commissioner of Education charges immorality because “ Throughout the picture the minds of the audience are centered Upon the subject of sterilization of human beings, curiosity is aroused as to the operation on the sex organs and the effect of sterilization, and the audiences await the picturization of the operation that is performed on the young criminal and that is about to be performed on the sex organs of the young girl.” Assuming this statement to be true, and considering the matter on the merits, it does not make the film immoral. “ A history of prostitution or of sexual life is not per se indecent although such a book might easily be so written as to offend decency.” (People v. Wendling, supra, p. 455.) Censorship statutes may not regulate manners. (People v. Eastman, supra.) There were no facts before the Commissioner upon which he could base a finding of immorality or that the film tended to corrupt morals.
It is argued that the film incites to the commission of the crime forbidden by section 1142 of the Penal Law which deals with the dissemination of information concerning contraception. The theme of the film no more suggests sterilization as a means of *483birth control than a film showing the amputation of a leg would suggest that as a means to prevent persons from walking into danger.
It is further argued that the subject of sterilization should not be given publicity. Such an argument presents the issue of whether our people may govern themselves or be governed; whether arguments for and against proposed and impending legislation may be presented direct in the public prints, on the stage and by films, or whether a Commission or Commissioner is to determine the limit and character of the information to be given to the public. Ministers of propaganda are favored in certain jurisdictions, but agencies of that kind have never been approved here. In Halsey v. New York Society (supra) Judge Andrews, for a majority of the court, says (p. 6): “ The conflict among the members of this court itself points a finger at the dangers of a censorship entrusted to men of one profession, of like education and similar surroundings. Far better than we, is a jury drawn from those of varied experiences, engaged in various occupations, in close touch with the currents of public feeling.”
The court scene is criticized. Neither the decision nor the brief states whether the objectionableness arises because of immorality, danger to morals or as inciting to crime. The scene is comparable with a city magistrate’s court. The cases are dealt with summarily. One whose sterilization had been directed by the board of sterilizers and who did not consider this “ desirable ” appeared before the court personally and with a politically important “ senator ” as his counsel. The judge is shown to yield obsequiously to the senator’s importunities while arbitrarily denying the prayers of the unrepresented suitors. Merited and unmerited criticism is permitted against all who hold public office. It is deemed necessary and wise under our concept of freedom of speech and of the press. The judiciary, no more than the executive and legislative, are sacrosanct. The foundation and fame of our judicial system is not so unstable as to be injured by this Police Court scene which is neither immoral, tending to injure morals or to incite to crime. It is to be hoped that no magistrate or other judicial officer ever lent a sympathetic ear to the politically powerful. If this be the fact, then the scene which makes judicial apostasy loathsome will tend to continue the past high standards. If any of the judiciary have failed to adopt Coke’s reply to the King as a standard of conduct, this scene may have a corrective effect. In behalf of the magistrate; the scene shows him active ■to correct an error when information was received that a mistake was made. This is praiseworthy. . --
*484The decision should be annulled and the matter remitted to the Commissioner with directions to issue the license.
Heffernan, J., concurs.
Determination confirmed, with fifty dollars costs and disbursements.