dissenting. I concur in the opinion of the majority that resolution No. 73, as amended, is not in its terms repugnant to the guaranties of the first amendment. The legislature has therein provided for an appropriation for the support of a program of public education concerning the deleterious influence of the publication of obscene, lewd, or indecent periodicals on the morals and welfare of youth and for appointment by the Governor of the members of a commission charged with the duty of conducting *420that program. I perceive no provision therein which would warrant concluding that the legislature contemplated that the commission was 'being authorized to act to engage in conduct other than that incidental to the program.
I am not fully persuaded that legislation providing for the dissemination of inf ormation relating to a matter of substantial public concern constitutes state action within the purview of the inhibitions of the pertinent constitutional provisions. The commission, as it is therein established, is without authority either to' regulate the business that is the subject of the legislation or to accomplish any control over that business through the imposition of sanctions. An exercise of the duties imposed upon the commission therein does not impinge upon any right protected by the first amendment.
However, I am unable to concur in the conclusion of the majority concerning the propriety of the injunctive relief decreed by the trial justice. The respondents here, whatever might be their rights as individuals, may act legally in their capacities as members of the commission only within the authority conferred upon the commission by the resolution. It appears from the record that the commission, or certain of its officers acting in its behalf, has engaged in conduct that is clearly in excess of the authority conferred upon it by the resolution. Such action, to the extent that it exceeds the authority conferred, is illegal and may, upon a showing of the requisite equitable grounds, be enjoined.
The action upon which this finding of illegality is predicated relates to the circulation of notices to dealers in books and publications wherein the commission identifies certain books that it deems to be objectionable for sale or distribution for use .by youths under the age of eighteen. The circulation of these notices, standing alone, was in my opinion action pursuant to the dissemination of information contemplated in the resolution. There is, however, further evidence tending to establish that the circulation of this infor*421mation was implemented at the commission’s instigation by a police surveillance of the stocks in the possession of these dealers which caused certain of them to withdraw the books so identified from sale generally. Of this the trial justice said: “The sending of these notices with their implicit threats of criminal prosecution are clear violations of the constitutional provisions guaranteeing freedom of the press.” I am not persuaded, however, that it is necessary to pass upon the constitutional issue, it being my opinion that the action to which the trial justice refers was beyond the power conferred upon the commission and, therefore, illegal.
There is in the record evidence which is concerned with the authority that the commission through its officers purported to exercise that buttresses the conclusion which I here reach. In what appears to be a circular letter dated July 19, 1957 over the signature of the executive secretary of the commission, dealers in books and publications were told: “This agency was established * * * with the immediate charge to prevent the sale, distribution or display of indecent and obscene publications to youths under eighteen years of age.” (italics mine) In another undated circular letter over the signature of the executive secretary of the commission, the assertion was made that certain amendatory legislation operated to “broaden the powers of this Commission, giving us broad investigative powers * * It is my opinion that the two examples above set out suffice to reveal that the commission or its officers substantially misconceived the purpose for which resolution No. 73 was enacted as well as the extent of the authority conferred upon the commission by the terms of that legislation.
After a thorough examination of the resolution I cannot find therein any language which either in express terms or by reasonable inference confers upon the commission or its officers authority to prevent the sale or distribution of any publication. The statement contained in the circular let*422ter of July 19, 1957 'constitutes’ an entirely unwarranted .assumption that the commission was vested with power to prevent the sale of such publications. Neither do' I find in the resolution any provision from which it may be reasonably assumed that the commission or its officers were invested with investigative powers. The language of the resolution providing that the commission make recommendations to prosecute violations of criminal statutes concerned with obscenity confers no inquisitorial power or, for that matter, any power to institute a criminal proceeding. It is my opinion that to so construe the provision referred to would be to clearly violate our well-settled rules of statutory construction.
Abedon, Michaelson and Stanzler, Milton Stanzler, Weil, Gotshall & Manges, Horace S. Manges, Jacob F. Raskin, New York, New York, for petitioners. J. Joseph Nugent, Attorney General, Joseph L. Breen, Chief Special 'Counsel, for State, for respondents.It is my opinion then that the commission, or its officers acting in its behalf, in purporting to act pursuant to the authority conferred by resolution No. 73 has engaged in conduct that exceeded the authority in fact conferred and to that extent its action was illegal. For this reason I am constrained to dissent from the conclusion of the majority that the trial justice erred in granting the injunctive relief.