Kingsley International Pictures Corp. v. Blanc

Opinion by

Mr. Chief Justice Jones,

The question on this appeal is whether equity has jurisdiction of the subject matter of the complaint. Although' that,' and that alone, is the sole question of law here involved, it will require a factual recital of some length for a correct understanding of the legal problem from which the court below appears to have been diverted by extraneous and immaterial considerations. There were two appeals by the plaintiff, one from thé order refusing a preliminary injunction and the other from the final decree dismissing the complaint. Only the later appeal need any longer be considered and the earlier will be non prossed.

The plaintiff, Kingsley International Pictures Corporation, of New York and having its principal place of business there, instituted this suit in equity in the court below against Victor Blanc, District Attorney of the City and County of Philadelphia, seeking an injunction, preliminary until hearing and thereafter permanent, to restrain the defendant from interfering with the commercial exhibition of a motion picture entitled And Cod Created Woman. The plaintiff corporation is the exclusive distributor of the film in the United States and had contracted with the respective owners of two motion picture theatres in Philadelphia for their simultaneous exhibition of the film beginning February 5, 1958. Approximately three weeks prior to that date, an Assistant' District Attorney, acting undér the direction of the defendant, asked the plaintiff for a private showing of the film for his inspection. The complaint alleges that, on January 28, 1958, the Assistant District Attorney, after having viewed the film, informed the plaintiff’s attorney that in the judgment of the District Attorney’s office, the showing of the film would constitute a violation of Section.528 of The Penal Code of June 24, 1939, P.L. 872, 18 PS §4528, and that, in the event the motion picture was publicly exhibited in Philadelphia, the persons responsible for showing it would be arrested and the films would be seized. Thereupon, the owners of the two Philadelphia theatres notified the plaintiff that they would not exhibit the film under the then existing circumstances, and thus would breach their contract with the plaintiff.

Section 528 of The Penal Code makes it a misdemeanor to show “. . . moving pictures, of a lascivious, sacrilegious, obscene, indecent, or immoral nature and character, or such as might tend to corrupt morals .....” The complaint avers that this statute is so vague, in the terms which it employs to define a crime, as to constitute its enforcement a violation of the due process clause of the Fourteenth Amendment of the Federal Constitution. See Commonwealth v. Blumenstein, 396 Pa. 417. We have declared the Act unconstitutional because of the vagueness of certain of the descriptive terms used in Section 528. However, our invalidation of the statute is not dispositive of the instant case. If, as a result of this appeal, it is determined that the complaint makes out a case for equitable relief, the plaintiff will be entitled to an adjudication of its rights in the premises and, if successful on final hearing, an injunction with costs.

The complaint further avers that the film is not obscene; that its exhibition would not violate any valid statute of the Commonwealth of Pennsylvania; that, if relief is not granted, the plaintiff corporation would suffer irreparable injury; and that there will be a multiplicity of prosecutions of persons with whom the plaintiff contracts for exhibition of the film.

Confronted with the threats of the District Attorney and the refusals of the theatre owners to exhibit the film, the plaintiff company filed its complaint in the instant suit on February 4, 1958, the day before the scheduled opening of the Philadelphia exhibition of the film. On February 5th a hearing was held by the court below on the plaintiff’s motion for a preliminary injunction. At that time the defendant filed a responsive answer which, although admitting most of the material averments of the complaint, directly put in issue by denial the factual averment that the film was not obscene.* At the court’s suggestion the defendant agreed to the film’s being shown publicly without interruption pending a determination by the court with respect to the request for a preliminary injunction. As a consequence the picture was publicly shown at the two theatres on February 5th as originally scheduled. At the hearing on February 5th the plaintiff introduced evidence as to the threats which had been made by the defendant and as to the irreparable harm which the plaintiff had suffered and would suffer as a result of the defendant’s action. The defendant offered no evidence to refute the need of a preliminary injunction.

A second hearing was held on February 10, 1958, on the plaintiff’s application for a preliminary injunction. At that time a Deputy City Solicitor appeared as counsel for the District Attorney pursuant to the requirement of Section 4-400 of the Philadelphia Home Rule Charter. Notwithstanding that the defendant had already filed a responsive answer to the complaint, the Deputy City Solicitor filed preliminary objections which assigned, inter alia, as ground for the dismissal of the bill, that equity is without jurisdiction to entertain the subject matter of the complaint.

On February 11,1958, the court denied the plaintiff’s application for a preliminary injunction and, on the same day, the District Attorney seized the films at the two theatres and arrested the managers. The plaintiff company immediately appealed to this court from the order denying it a preliminary injunction and, on February 13, we entered an order restraining the District Attorney from interfering with the showing of the film at either theatre “until final decree of the court below in the equity, suit there pending.” By stipulation, the District Attorney retained one print of the seized films for evidentiary purposes, later.

After argument on the preliminary objections the court below entered a decree on March 5, 1958, sustaining the preliminary objections and dismissing the bill on the ground that equity was without jurisdiction. On the following day the District Attorney again seized the films at the two theatres.

The plaintiff took the present appeal to this court from the final decree dismissing the bill and petitioned for a supersedeas. After argument thereon we ordered the District Attorney not to interfere with the exhibition of the film until final disposition of the equity suit.

The managers of the two theatres have been indicted under Section 528 of The Penal Code, supra, for exhibiting the film, and also under Section 524, for possession of obscene literature. These criminal proceedings have been continued pending disposition of this case. The indictments allege that the criminal acts charged against the managers of the theatres were committed on or about February 5,1958 — the date on which the showing of the films in Philadelphia began. At the hearing conducted by the court below on that very day, it had been agreed that nothing would be done by way of arresting the exhibitors or seizing the film until the court had witnessed an exhibition .and had determined its attitude. The record clearly indicates that the managers of the two theatres would not have exhibited the film if the District Attorney had not agreed that there would be no interference with the showing at that time.

As stated at the outset, the sole question on this appeal is whether, under the facts averred in the complaint, a court of equity has jurisdiction to enjoin the District Attorney from interfering with the exhibition of the motion picture films -with consequent irreparable harm to the property rights of the plaintiff.

It is well settled that ordinarily equity will not restrain the prosecution of a criminal proceeding. Meadville Park Theatre Corporation v. Mook, 337 Pa. 21, 24, 10 A. 2d 437. The rationale of the rule is that the accused has an adequate remedy at law by pleading at the time of the criminal prosecution, the invalidity of the statute whereon his indictment is based, or any other defense available to him: Duquesne Light Company v. Upper St. Clair Township, 377 Pa. 323, 341, 105 A. 2d 287. This rule has no application, however, where, as in the instant case, the equity proceeding is instituted by a person who is not a party to the criminal proceeding but who nevertheless has property rights which will be irreparably injured by the prosecuting activities of the District Attorney. In such a situation equity has jurisdiction because the plaintiff has no adequate and complete remedy at law. Indeed, he has no other remedy at all.

The rule is well set out in Pennsylvania Railroad Company v. Bogert, 209 Pa. 589, 601, 59 A. 100, which quoted, in part, from Bank of Virginia v. Adams, 1 Parsons 534, that “. . . when from the nature and complications of a given case, its justice can best be reached, by means of the flexible machinery of a court of equity, in short where a full, perfect and completé remedy cannot be afforded at law, equity extends its jurisdiction in furtherance of justice”, to which the opinion writer added, “Or as Story states in sec. 33, ‘The remedy at law must be plain; for if it be doubtful and obscure at law equity will assert a jurisdiction.’ ” See Pennsylvania State Chamber of Commerce v. Torquato, 386 Pa. 306, 329, 125 A. 2d 755, where we again quoted with approval as in the Bogert case, supra.

In the instant case the remedy at law is not even doubtful and obscure; it is wholly non-existent. The plaintiff cannot have its property rights protected against invasion by the defendant in a criminal proceeding to which it is not a party and to which it cannot be made amenable. The fundamental rule whereby equity affords the necessary relief in the Circumstances here present is well illustrated by the case of Adams v. New Kensington, 357 Pa. 557, 560-561, 55 A. 2d 392. There, the plaintiff, who leased juke boxes to various establishments, sought to enjoin the enforcement of a city ordinance regulating the licensing of establishments having possession of such juke boxes. Fines and jail sentences were to be imposed for any violation of the ordinance. The court recognized that equity has jurisdiction to adjudicate the plaintiff’s rights. Mr. Justice Stern, speaking for a unanimous court, stated “But equity does have jurisdiction to enjoin such a [criminal] prosecution where it is alleged not only that the statute or ordinance is unconstitutional. and void but that its enforcement would cause the plaintiff irreparable loss to his property, either by effecting, if not a total suppression of his business, at least a grave interference therewith, or by subjecting him to the imposition of cumulative, exorbitant and oppressive penalties pending judicial determination of the validity of the legislation. In such cases, the ground of equitable jurisdiction is the protection of property rights, and the fact that a criminal, proceeding is involved is merely incidental [citing cases].”

The identical problem was considered by the United States Supreme Court in the well known case of Pierce v. Society of Sisters, 268 U.S. 510, 534-536. In that case, the plaintiffs, who operated private schools in Oregon, sought to restrain State officers from enforcing a statute requiring parents a.nd others having control of young children to send them to the public schools conducted by the State. Fine or imprisonment could be imposed upon parents for failure to abide by the provisions of the Act. The Court, holding that equity had jurisdiction to grant the relief requested by those who operated the private schools, said, “The inevitable practical result of enforcing the Act under consideration would be destruction of appellees’ primary schools, and perhaps all other private primary schools for normal children within the State of Oregon. . . . Plaintiffs asked protection against arbitrary, unreasonable and unlawful interference with their patrons and the consequent destruction of their business and property. Their interest is clear and immediate, within the rule approved in Truax v. Raich, [239 U.S. 33] . . . and many other cases where injunctions have issued to protect business enterprises against interference with the freedom of patrons or customers.” The case holds that the threatened imposition of criminal penalties against the patrons of the' school constituted an irreparable injury to those' who operated the school. Similarly, here, the threatened criminal prosecution, of the managers of the two moving picture theatres in Philadelphia, who had contracted to show the film, constituted an irreparable injury to the plaintiff corporation which distributes and leases the film.

In Truax v. Raich, 239 U.S. 33, 37-39, cited by the Supreme Court in the Society of Sisters ease, supra, the plaintiff sought to enjoin the Attorney General of Arizona from enforcing against his employer a State statute compelling an employer to hire not less than 80% qualified electors or native born citizens. Criminal prosecutions had been instituted against the employer allegedly! for having violated the provisions of the statute. As a result of these prosecutions the plaintiff had been threatened with the loss of his job. The Supreme Court held that equity had jurisdiction since the prevention of the prosecutions was essential to safeguarding rights of property and, without the relief, the complainant would have no adequate remedy. See also Terrace v. Thompson, 263 U.S. 197, 214, where the Supreme Court again held that equity jurisdiction to enjoin criminal prosecutions will be exercised wherever it is essential effectively to protect property rights and the rights of persons against injuries otherwise irremediable.

That equity will enjoin criminal proceedings to prevent irremediable injury to property rights is confirmed by the ruling of this court in Mahoning & Shenango Railway & Light Company v. New Castle, 233 Pa. 413, 418, 82 A. 501, where a street railway company brought a bill in equity to restrain the enforcement of a municipal penal ordinance requiring it to install certain specified safety brakes. The city officials had threatened to arrest the motormen and conductors in charge of the plaintiff’s cars. Holding that equity had jurisdiction to restrain the prosecutions, we said, “It was the threat to take the employees of the plaintiff company off its cars by arrest which caused the filing of the bill. Had this threat been carried out it would have meant the tying up of the plaintiff’s lines and a serious interference with the use of its property. Under such circumstances, if the ordinance was invalid, there was ample authority to sustain equitable interference.” In that case, just as in the instant case, the plaintiff company would not have been a party to the threatened criminal proceedings; hence its property rights could never have been adjudicated properly and adequately if equity had refused to take jurisdiction.

The case of Morrison v. Davis, 252 F. 2d 102, 103, is presently quite apposite: Certain Negro citizens sought to enjoin enforcement of Louisiana statutes requiring segregation of the races on public transportation facilities. The statute imposed criminal penalties against the operators of the vehicles if the segregation was not enforced. The court held the individual plaintiffs could properly invoke equity’s aid to enjoin the enforcement of the statute, pertinently saying in that connection, — “These plaintiffs are not being prosecuted; they have not violated the state law; they are seriously affected by the provision of the statute which places a criminal penalty on the street car operators who permit them to travel on a street car without complying with the unconstitutional statute. They are asking relief from such constraint. Since all transportation can be denied them under the statute unless they obey the illegal requirement, it is not even apparent that they could put themselves in position to be arrested and prosecuted even if they sought to test their constitutional rights in that manner, which we hold they do not have to do.” The foregoing statement is equally applicable to the situation of the present plaintiff in respect of its invaded property rights.

In Nelson v. Jessup, 134 F. Supp. 221, 229, an interstate motor carrier sought to enjoin State police officers from arresting the carrier’s drivers on charges that the goods being transported was a business not authorized under the State’s permit to the carrier. The court held that the plaintiff corporation, itself not the subject of a criminal prosecution, could invoke equity’s jurisdiction to enjoin threatened criminal prosecution against third persons which would result in injury to the plaintiff’s property rights. The court made a finding, which is equally pertinent to the present case, that, “the threat of irreparable injury is implicit in the defendants’ joint answer wherein it is averred that defendants intend to cause further arrests of plaintiff’s drivers in this situation.”

The complaint in the instant case unquestionably makes out a case for equitable jurisdiction. Consequently, the court below erred in dismissing the bill.

Decree reversed with a procedendo; costs to abide the event.

* At the hearing the plaintiff read in evidence untraversed paragraph 4 of the complaint as follows: “The film has been shown in the foUowing major cities, among others: Boston, Worcester and Fitchburg in Massachusetts; Hartford, New Haven, Stamford and Greenwich in Connecticut; Washington, D. C.; San Francisco and Los Angeles in California; Houston and Dallas in Texas; Chicago, Illinois; St. Louis; Cleveland and Canton in Ohio; Louisville, Kentucky; Seattle and Portland in Washington; Atlanta, Georgia; New York City and Syracuse in New York; Baltimore, Maryland; and Pittsburgh, Pennsylvania. This film was passed by the United States Customs authorities and licensed for exhibition in the States of New York, Virginia and Maryland. The licensing of the film by the State censorship boards of the states referred to is in effect a determination that the film is not obscene. Said film has met with general pttblic acceptance and considerable financial success wherever exhibited.”