
    The State, ex rel. The Midwestern Film Exchange, Inc., v. Clifton, Director of Dept. of Education. Mantell v. Department of Education et al.
    (Nos. 20886 and 20904
    Decided January 25, 1928.)
    
      Mr. Stuart B. Bolin and Messrs. Sheck, Stevens & Hargreaves, for relator Midwestern Film Exchange.
    
      Mr. Matthew L. Bigger, Mr. Max Matusoff and Mr. Edioard T. Potoell, for plaintiff in error Mantell.
    
      Mr. Edtoard G. Turner, attorney general, and Mr. L. F. Laylin, for defendants.
   By the Court.

These two cases were filed in this court and are similar in character, both seeking the same ultimate relief. The former is stjded an action in mandamus, the latter a petition for review, under Section 871-53, G-eneral Code. In both cases an effort is made to review an order of the department of education refusing to censor a film called the “Dempsey v. Tunney Boxing Exhibition held at Chicago, 111., September 22, 1927,” and in each case the director of education has filed an answer containing substantially similar defenses.

The pleadings on file in the mandamus proceeding admit that due applications for censorship were made, that no examination of the film was made, and that the director of education, as censor ex officio, refused to accept the films for censoring, “basing his judgment and decision on the statutes applicable to this censoring of pictures.” It is alleged, and not disputed, that the films submitted for censoring were made in this state, as were the negatives therefrom; that these prints and negatives were never transported into this state by mail, express or common carrier, and that such'films, or copies thereof, if approved, were' for use solely within the state of Ohio. Substantially. similar averments are contained in, the petition for review filed by Mantell.

In addition to the admissions made by the director of education, contained in his several answers, he alleges the following as a ground for refusing to accept said films for censorship, viz., that by reason of the title of such film and of his own general knowledge of the event portrayed “it was and is unnecessary for him to actually examine said, film in order to exercise his judgment and discretion to determine whether or not such film was of a moral, educational, or amusing and harmless character so as to entitle it” to his approval, and that, in his judgment, obtained from his. general knowledge, and evidence adduced, the film was neither moral, educational, nor of an amusing and harmless character. We rest our decision upon the application of our own statutes to the duties and obligations of the board of censors with respect to the censorship of picture films tendered to it for approval.

By virtue of the provisions of Section 154-46, General Code, there have been conferred upon the department of education all the powers and duties theretofore vested in'the Industrial Commission of Ohio and the board of censors of motion picture films by Sections 871-48 to 871-53, General Code. By the provisions of Section 154-47, General Code, there has been created an advisory board of film censorship, whose duties are specifically described therein. That section reads:

“An advisory board of three members is hereby created in the department of education, to be known as the advisory board of film censorship. * * * Such board shall assist and advise the department of education in the examination and censorship of motion picture films.”

It is conceded that tfie director of education not only failed to procure the advice and assistance of this board, but predicated his refusal on the application for exhibition, not upon an examination of the film, but upon what he terms “his general knowledge” of its character. In so doing there was a noncompliance with the statute which requires the approval or disapproval of the film to be based upon its examination. Section 871-48, General Code, provides:

“It shall be the duty of the board of censors to examine and censor as herein provided, all motion picture films to be publicly exhibited and displayed .in the state of Ohio. ’ ’

The following section (Section 871-49, General Code) reads:

“Only such films as are in the judgment and discretion of the board of censors of a moral, educational or amusing and harmless character shall he passed and approved by such board. When a film has been censored by the board of censors a certificate showing the approval or rejection of such film shall be issued to the party submitting the film.”

It is manifest that these sections of the law, governing film censorship, were not complied with. While the court would not disturb the exercise of a sound discretion upon the part of the board, in its approval or disapproval of a film, yet the order of the director basing his disapproval upon what he terms his “general knowledge” of the film and its title, and ‘not upon examination, was not made in compliance with the aforesaid sections of our law relating to film censorship.

It therefore follows that the order of the director, made under such circumstances, was unlawful and unreasonable, and the cause is accordingly remanded to the department of education for further proceedings conformable to the laws of the state.

Writ allowed.

Order reversed and cause remanded.

Marshall, C. J., Day, Allen, Kinkade, Robinson, Jones and Matthias, JJ., concur.  