(concurring specially): I agree that the statute does not undertake to impose upon the court the duty of determining for itself whether a film passed upon by the board of review is moral and proper, or whether it is cruel, obscene, indecent or immoral. But I dissent from the statement (which appears to me to be dictum) that the legislature has no power to impose such a duty on a court. The members of the board of review are not given an option to accept or reject films at their pleasure. They have no discretion in the matter, except as that term may be used in the sense of implying the exercise of their judgment in determining the character of the film examined. If they decide that it is cruel, obscene, indecent or immoral, or that it tends to debase or corrupt morals, they must reject it; otherwise they must accept it. Whether it has any of these qualities is a question of fact which the legislature may commit to the final determination of an adminis*361trative tribunal, or of a court. An appeal may be authorized from a non judicial body to a court, where the matter to be passed on is one proper to be determined by a court in some other form of procedure. (12 C. J. 877.) The practice is well established of having an administrative tribunal pass upon conflicting claims, subject to an appeal to a court which shall finally determine some question of fact that is involved in the ruling made. (Callen v. Junction City, 43 Kan. 627, 23 Pac. 652; Nash v. Glen Elder, 74 Kan. 756, 88 Pac. 62; Fong Yue Ting v. United States, 149 U. S. 698.) Indeed the question has often been raised whether a' determination by an administrative body of a question of fact affecting property rights is due process of law, unless an appeal to a judicial tribunal is provided — a question sometimes decided in the negative (12 C. J. 1241), but usually in the affirmative. (4 Dec. Dig., “Constitutional Law,” § 318.) The question whether a particular film is immoral is doubtless one that can with advantage be finally committed to the judgment of an administrative body, but it does not seem to me to be so clearly non judicial that it may not be submitted to the determination of a court, if the legislature thinks that course advisable." Courts are frequently called upon to decide whether particular publications are obscene, the test being whether they tend to deprave and corrupt morals (29 Cyc. 1319), and I see no reason why they might not be required to decide similar questions with regard to films. I do not think a statute making it a misdemeanor to exhibit films which are cruel, obscene, indecent or immoral, or such as tend to debase or corrupt morals, and authorizing the granting of injunctions against their .exhibition, would be nonenforeeable because of any inability of the courts to decide whether a particular film fell within the prohibition.
Porter, J., joins in the special concurrence.