has not defined with precision the width of the
pillar, and it is very properly admitted that
in the nature of things this would have been
impossible, because the width necessary in each
case must be determined with reference to the
situation of the particular property. From
this it necessarily results that it was competent
for the Legislature to lay down a general rule,
and then establish an administrative tribunal
with authority to fix the precise width or thick-
ness of pillar that will suit the necessities of the
particular situation, and constitute a compliance
with the general rule. United States v. Grim-
aud, 220 U. S. 506, 517-522 [31 Sup. Ct. 480,
55 L. Ed. 563]. Administrative bodies with
authority not essentially different are a recog-
nized governmental institution. Commissions
for the regulation of public service corporations
are a familiar instance. Interstate Commerce
Commission v. Cincinnati, New Orleans & Tex-
as Pacific Ry. Co., 167 U. S. 479, 495 [17 Sup.
Ct. 896, 42 L. Ed. 243]. And it has become
entirely settled that powers and discretion of
this character may be delegated to administra-
tive bodies, or even to a single individual.
It is further objected that the statute provides
no appeal from the determination of the tribu-
nal. But in such cases the right of appeal on
other than constitutional grounds may be con-
ferred or withheld, at the discretion of the Leg-
islature.
Were this not expressed in
the act, it would none the less be implied, at
least so far as pertains to any violation of
rights guaranteed by the fourteenth amend-
ment." Plymouth Coal Co. v. Pennsylvania,
232 U. S. 531, 542, 34 Sup. Ct. 359, 362 (58
L. Ed. 713).

*

*

inequality. Weber v. Reinhard & Eisenhard, 73 Pa. 370, 13 Am. Rep. 747.

In Bradley v. City of Richmond, 227 U. S. 477, 33 Sup. Ct. 318, 57 L. Ed. 603, it was held that a privilege tax may perform the double function of regulating the business under the police power and of producing revenue, if authorized by the law of the state. It was said by Mr. Justice Lurton (227 U. S. 483, 33 Sup. Ct. 320, 57 L. Ed. 603): "If the right to appear and to be heard and to obtain a review should prove illusory, there would, under general principles of jurisprudence, remain the right to judicial review, if the result should violate either a right secured under the law of the state or that of the United States."

In Red "C" Oil Mfg. Co. v. Board of Agriculture of North Carolina, 222 U. S. 380, 32 Sup. Ct. 152, 56 L. Ed. 240, a question arose under a North Carolina act for inspection, under control of the board of agriculture, of illuminating oil. It was held that the court would not attribute improper motives to the lawmaking power, and on a mere charge regard to raise revenue; that prima facie the charge a statute imposing inspection fees as an act for inspection in an act otherwise constitutional is reasonable, and that, if the inspection fees exacted under a state statute average largely more than enough to pay expenses, the presumption is that the state will reduce them to conform to the constitutional authority to impose fees solely to reimburse for expense of inspection; that a requirement by the Legislature that' illuminating oils must be safe, pure, and afford a satisfactory light establishes a sufficient In Curran v. Delano, 235 Pa. 478, 84 Atl. primary standard, and remitting to the proper 452, it was held that the jurisdiction of a tri-state board the establishment of rules and regbunal created by the Legislature to establish the ulations to determine what oils measure up to width of boundary pillars between mines is ex- of legislative power. Where one complains that those standards does not amount to a delegation regulations promulgated under legislative authority by a state board are unreasonable and oppressive, he should seek relief by applying to that board to modify them. The penalties are fixed by section 9 of the Pennsylvania act creating the board of censors (P. L. 1911, p. 1067); there is no power in the magistrate to increase them, and he is specifically prohibited from reducing them.

clusive.

Van Swartow v. Com., 24 Pa. 131, was a case involving the act of April 14, 1851 (P. L. 548), prohibiting the sale of liquor on Sunday in Allegheny county, except for medicinal purposes, under a penalty of $50, and authorizing a conviction before an alderman, and it was decided not unconstitutional by reason of failing to provide a trial by jury. Black, C. J., said: "There is nothing to forbid the Legislature from creating a new offense and prescribing what mode [4] The act is entitled "An act regulating the they please of ascertaining the guilt of those exhibiting or using of moving pictures and sterewho are charged with it. Many tribunals, un- opticon views; providing for and regulating the known to the framers of the Constitution, and examination and approval of moving picture not at all resembling a jury, have been erected films, or reels, and stereopticon views; and fixand charged with the determination of grave ing penalties for the violation of this act." The and weighty matters; for instance, commis- subject-matter is clearly expressed in the title, sioners, viewers, and appraisers of damages, which is general in its terms, and does not atcounty and township auditors, and those offi-tempt to furnish an index of its contents, but is cers of the state government whose duty it is sufficient to lead to inquiry beyond the title into settle the public accounts. All of these func- to the body of the bill to ascertain the extent tionaries have at different times in our history of the regulations enacted. Com. v. McKenty, been empowered to decide the most important 52 Pa. Super. Ct. 332. controversies without appeal. * The pose of the Constitution undoubtedly was to preserve the jury trial wherever the common law gave it, and in all other cases to let the Legislature and the people do as their wisdom and experience might direct."

pur

In Rhines v. Clark, 51 Pa. 96, 101, it was said by Woodward, C. J.: "Doubtless the Legislature may withhold trial by jury from new offenses created by statute, and unknown to the common law, as in the instance of the Sunday law (Van Swartow v. Com., 24 Pa. 131), and of numerous enactments in the nature of police regulations for preservation of the public peace.' The Legislature may provide any system of settlement or trial without coming in conflict with the provision of the Constitution, if trial by jury did not exist in such case theretofore." School District Duquesne Boro. v. Pitts, 184 Pa. 156, 160, 39 Atl. 64, 66; Com. v. McCann & Co., 174 Pa. 19, 21, 34 Atl. 299.

The court cannot pronounce a tax unconsti

In Booth & Flinn v. Miller, 237 Pa. 297, 304, 85 Atl. 457, 459, it was said by Mr. Justice Mestrezat: "We have repeatedly said that the title need not embody all the distinct provisions of the bill, nor serve as an index or digest of its contents, but that it is sufficient if the ti tle fairly gives notice of the real subject of the bill, so as reasonably to lead to an inquiry into what is contained in the body of the bill."

Most of the questions involved in this issue were considered in Mutual Film Co. v. Industrial Commission of Ohio, decided by the District Court of the United States for the Northern District of Ohio April 2, 1914, 215 Fed. 138, upon an application for an injunction to restrain the board of censors appointed under an act of assembly in essential terms similar to the statute now under consideration. The injunction was refused, and the Ohio act was held constitutional. A reference to the carefully considered opinion of the court in that case makes it unnecessary to review in detail all the

power.

*

invading even villages and towns of modest size. While, as generally conducted, some educational value may be conceded to exist in these shows, it is nevertheless true that the chief aim is to furnish the sort of entertainment that will draw the most dimes. To furnish people with innocent and cheap amusement is laudable, but experience teaches that, where amusements are furnished for pecuniary profit, the tendency is to furnish that which will attract the greatest number, rather than that which instructs or elevates. To say the least, opinions are quite at variance as to the merits of moving picture shows as an influence for good or evil in a community. It must therefore be classed among those pursuits which are liable to degenerate and menace the good order and morals of the people, and may therefore not only be licensed and regulated, but also prevented by a village council."

In Block v. City of Chicago, 239 Ill. 251, 87 N. E. 1011, 130 Am. St. Rep. 219, an ordinance required persons engaging in the business of exhibiting moving pictures to secure a permit from the chief of police, who was forbidden to issue permits for obscene or immoral pictures. An application was made to enjoin the enforcement of the ordinance on the ground that it was unconstitutional, in that it discriminated against exhibitors, delegated legislative authority to the chief of police, fixed no standard by which he was to determine the character of the pictures, took the property of complainant without due process of law, and was unreasonable and oppressive. The court referred to the fact that the exhibitions, on account of the low price of admission, are frequented and patronized by a large number of children, and that the audiences included those classes whose age, education, and situation in life especially entitle them to protection against the evil influence of ob- It is alleged in each of the bills of complaint scene and immoral representations, and said: that none of the moving pictures, films, or reels "The purpose of the ordinance is to secure de- owned by the plaintiffs and rented or intended cency and morality in the moving picture busi- to be rented in the commonwealth or exhibited ness, and that purpose falls within the police are sacrilegious, obscene, indecent, immoral, or The welfare of society de- such as tend to corrupt morals, but, on the conmands that every effort of municipal authori- trary, are moral and proper. If such be the ties to afford such protection shall be sustained, case, it may be presumed that they will be passunless it is clear that some constitutional righted by the censors, and, while complaint is made is interfered with. * 239 Ill. 264, 87 of anticipated inconvenience and expense, plainN. E. 1015, 130 Am. St. Rep. 219: "There is tiffs have made no attempt to comply with the as great diversity of opinion as to what consti- terms of the act, and it is not possible to detutes good moral character, but it is beyond termine in advance that it is impractical to question that an officer authorized to grant a li- carry out its provisions. cense to keep a drampshop may determine Official censorship has already been establishwhether the applicant has a good moral char- ed in four states and many cities, and a bill is acter, and there has been no ground for com- pending in Congress to create a federal motion plaint that the power has been wrongfully or picture commission for licensing films. There oppressively exercised against applicants." 239 is a voluntary board known as the National Ill. 263, 87 N. E. 1015, 130 Am. St. Rep. 219: Board of Censorship of Motion Pictures in New "Manifestly it would be impossible to specify York, which has issued publications giving its in an ordinance every picture or particular policies and standards of judgment, and it is variety * which would be considered im-working in harmony with manufacturers, immoral or obscene, and no definition could be for- porters, and exhibitors. That board views from mulated which would afford a better standard 150 to 185 film subjects a week, and the picthan the words of the ordinance. * * The tures are daily seen by about 8,000,00 of people average person of healthy and wholesome mind in 18,000 motion picture houses in the United knows well enough what the words 'immoral' States. During last year 53 subjects were conand 'obscene' mean and can intelligently apply demned, and parts eliminated in 401. The cost the test to any picture presented to him. of these negatives, copies included, was over It is presumed that the chief of po- $582,000. Realizing that pictures stimulating lice, or the mayor, in case of an appeal to him, the senses require particular study from the will perform his duty with reasonable intelli- point of view of the adolescent, the board has gence and in accordance with the generally ac- adopted standards curtailing prolonged love cepted meaning of the words. If there should scenes which are ardent beyond the strict rebe an abuse of power on the part of either the quirements of the dramatic situation, and rechief of police or the mayor, the ordinance does stricts the display of clothing and the person in not prevent an application to a court to compel ways to arouse the imagination and suggest imeither officer to perform his duty and issue a morality and indecency. It has discountenanced permit for a picture which is not immoral or the portrayal of crime where it degenerates into obscene." 239 Ill. 265, 87 N. E. 1016, 130 Am. pandering to a morbid appetite, and excludes St. Rep. 219: It was argued "that some sort of gruesome and suggestive details. Careful elimia hearing is required in court to determine the nation has also taken place in various forms of fact whether a picture proposed to be exhibited, sex lapses, where pictures have been calculated or one that has been exhibited, is immoral or to arouse rather than minimize passion, or tend obscene. We know of no decision sustaining to perpetuate the double standard of morality, such a doctrine, and counsel do not appear to but it has given support to subjects and films have found any. As we have already seen, there which present facts in a sincere and dramatic is no lawful objection to the determination of way. The Survey, June 27, 1914. the question by the chief of police." The decree sustaining demurrer to the bill was affirmed.

*

*

In Laurelle v. Bush, 17 Cal. App. 409, 119 Pac. 953, an ordinance requiring moving picture shows to be licensed by the board of police commissioners, and limiting the places where such license should be granted, was held valid.

In Higgins v. Lacroix, 119 Minn. 145, an act imposing a license fee on moving picture shows was held to be constitutional, and in Dreyfus v. Montgomery, 4 Ala. App. 270, 58 South. 730, where an ordinance restricted the location of moving picture shows to a prescribed district, it was decided to be valid. In the former case it was said: "Moving picture shows are of comparatively recent origin, but of rapid growth, springing up everywhere in the large cities and

"We may once more repeat what has been so often said, that one who would strike down a state statute as violative of the federal Constitution must show that he is within the class with respect to whom the act is unconstitutional, and must show that the alleged unconstitutional feature injures him, and so operates as to deprive him of rights protected by the federal Constitution." Pitney, J., in Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531, 544, 545, 34 Sup. Ct. 359, 363, 58 L. Ed. 713.

In Western Turf Association v. Greenberg, 204 U. S. 359, 363, 27 Sup. Ct. 384, 51 L. Ed. 520, it was held that a corporation is not deemed a citizen within the clause of the Constitution of the United States protecting the privi leges and immunities of citizens of the United States from being abridged or impaired by the

law of a state; and the liberty guaranteed by | ing pictures and stereopticon views, offends the fourteenth amendment against deprivation both the federal and state Constitutions, and without due process of law is that of natural, not artificial, persons.

As to the additional claim made by the individual plaintiffs that they have been deprived of the right of trial by jury, no question of the right of trial by jury arises in the case. There is nothing in the Constitution which prohibits the Legislature from declaring new offenses and defining the mode by which the guilt of persons accused thereof may be determined. Van Swartow v. Com., 24 Pa. 131.

Neither the eloquent argument nor the able and exhaustive brief presented by the counsel for plaintiffs has convinced the court that the act of June 19, 1911 (P. L. 1067), is unconsti

tutional.

The court refused the injunction, and on final hearing dismissed the bill.

pray that the act be declared unconstitutional and void, that the defendants, who constitute the state board of censors, appointed under the act, be enjoined from enforcing its provisions, and from inquiring into and investigating, approving or disapproving, films, reels, and views which are to be sold or rented by the plaintiffs. The full bench of the court of common pleas No. 5 of Philadelphia county heard the motions for preliminary injunctions and refused them. Subsequently the court in banc entered decrees refusing permanent injunctions and dismissing the bills. The cases were all disposed of in one opinion by the learned president judge, whose elaborate discussion of the questions raised below and here leaves nothing that can profitably be added to sustain the decrees. It may be suggested that since the decrees were entered the Supreme Court of the United States in Mutual Film Corporation v. Industrial Commission of Ohio, 236 U. S. 230, 35 Sup. Ct. 387, 59 L. Ed. 552,, and PER CURIAM. These are three separate Mutual Film Co. of Missouri v. Hodges, Govbills in equity brought by the Buffalo Branch, ernor of the State of Kansas, 236 U. S. 248, Mutual Film Corporation, Mutual Film Cor-35 Sup. Ct. 393, 59 L. Ed. 561, has considered poration of Pennsylvania, and Interstate and decided most of the questions raised by Films Company, and the Overbrook Theater, appellants here, and its conclusion is in acrespectively, against J. Louis Breitinger, cord with that of the learned common pleas chief censor, and E. C. Niver, assistant cen- in these cases. sor, constituting the state board of censors. The bills aver that for the reasons therein set forth the act of June 19, 1911 (P. L. 1067), regulating the exhibiting or using of mov-dered.

Argued before MESTREZAT, POTTER, ELKIN, MOSCHZISKER, and FRAZER, JJ. George Quintard Horwitz and Frank Smith, both of Philadelphia, for appellants. Morris Wolf, of Philadelphia, and Francis Shunk Brown, Atty. Gen., for appellees.

The majority of the court are of opinion that the decrees should be affirmed on the opinion of the court below; and it is so or

In the case of State against Antonio MaUpon the complainant's appeal, and after riano, Franklin N. Strickland applied for an hearing the argument of counsel and read-allowance of expert witness fees, and from ming all the testimony, we are of the opinion the order of allowance, he appeals. Appeal that the decree below must be affirmed. The dismissed.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Charles H. McKenna, of Providence, for appellant. Claude R. Branch, Asst. Atty. Gen., of Providence, for the State.

a

permanent structures above and across certain gangway through which the complainants have the privilege of passing. The bill was filed June 29th last, and the cause was heard on the prayer for a preliminary injunction on the 13th day of July following. At the hearing the complainants' solicitor read into the record the portion of the will creating the easement claimed to be interfered with, and made certain statements of relevant facts, which were apparently accepted as true by respondents' solicitors. The bill of complaint is sworn to. The respondents admitted the intention to erect the structures complained of, but offered testimony tending to show that they would not materially interfere with the reasonable enjoyment of the complainants' easement. The superior court granted the prayer for a pre

PER CURIAM. In the above-entitled case an expert witness for the state made a motion for the allowance of fees in addition to the fees allowed by the statute to witnesses for attendance and travel. After hearing and the entry by a justice of the superior court of an order allowing said expert witness the sum of $65 as such additional fee, said witness appealed to this court, setting out as the grounds of his appeal: First, that said decree is wrong and erroneous and against the evidence and the weight thereof; and, second, that the amount of fee fixed and allowed by said decree is unreasonable and insufficient. The state has moved to dismiss the appeal. Such allowance of fees is pro-liminary injunction and a decree to that efvided for by chapter 364, § 9, Gen. Laws 1909. No appeal from an order making such allowance is given by said statute. Counsel for the appellant states in his brief that the appeal was taken by virtue of sections 1 and 25 of chapter 289, Gen. Laws. Said sections, however, provide only for appeals in equity cases and suits following the course of equity, while the proceeding in this case on which the order appealed from was made was a motion within the case of State v. Mariano for an allowance of fees to an expert witness. Clearly the sections cited afford no basis for this appeal.

fect was entered July 15th. The cause is before this court on appeal of respondents from this decree.

The bill in equity, the reported testimony, and the record otherwise have been read and considered with care. The issuance of a preliminary injunction rests in the sound discretion of the court, and as a rule the exercise of this discretion will not be interfered with on appeal unless it be reasonably clear that it has been exercised in an illegal manner. 16 Am. & Eng. Encyc. of Law, 345, and cases cited under note 8; Clark v. Wooster, 119 U. S. 322, 325, 7 Sup.

The motion is granted. The appeal is dis- Ct. 217, 30 L. Ed. 392. We do not feel justimissed.

(23 R. I. 300)

ARMOUR et al. v. HALL et al. (Supreme Court of Rhode Island.

1915.)

(No. 335.)
Oct. 18,

fied in saying that illegality in the manner of its exercise is apparent in this present instance. Of course the granting of a preliminary injunction is not a final determination of the rights of the parties, and it is not to be so understood in this case. Its office is to hold matters approximately in statu As a rule, the exercise of discretion by is- quo and to prevent the doing of any act suance of a preliminary injunction will not be whereby the right in question may be irinterfered with on appeal, unless it be reason-reparably injured or endangered until, aftably clear that it has been exercised in an il-er the pleadings are completed and the islegal manner.

APPEAL AND ERROR 954 - REVIEW-PRE-
LIMINARY INJUNCTION.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3818-3821; Dec. Dig. 954.]

Appeal from Superior Court, Providence and Bristol Counties; Charles F. Stearns, Judge.

Suit by William Armour, trustee, and others against William H. Hall and others, trustees. From a decree for a preliminary injunction, respondents appeal. Appeal denied and dismissed.

sues are joined, upon final hearing with the whole matter before it, the court may determine all rights involved.

The appeal is denied and dismissed.

(114 Me. 71)

BARROWS v. SANBORN. (Supreme Judicial Court of Maine. 1915.)

FRAUD 58-ACTIONS-EVIDENCE.

Oct. 4,

In an action for deceit in the sale of a farm, Richard B. Comstock and Richard E. Ly-in that defendant's agent represented that the man, both of Providence, for complainants. farm included a small piece which had previously J. Jerome Hahn, Raymond P. McCanna, and been sold, evidence held not to show that such Bassett & Raymond, all of Providence, for representation was made. respondents.

PER CURIAM. This is a bill in equity by which the complainants seek to permanently enjoin the respondents from erecting certain

[Ed. Note. For other cases, see Fraud, Cent. Dig. 88 55-59; Dec. Dig. 58.]

On Motion from Supreme Judicial Court, Somerset County, at Law.

Action by James B. Barrows against Park

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes