Jayne, Francis and Clapp. The opinion of the court was delivered by Clapp, J.A.D.
The Board of Commissioners of Union City refused to issue to plaintiff a license for the putting on, apparently, of burlesque shows at its theatre there. Plaintiff then, by this action in lieu of prerogative writ, sought to compel its issuance. Judgment was for defendants, and plaintiff appeals.
Defendants' counsel asserted before the court below, that the license had been denied, first, because of conduct of Harry W. Doniger, the president of the plaintiff corporation, demonstrating its unfitness to hold the license; second, because the theatre is next to a playground; and third, because it is a fire hazard and violates municipal building and health codes.
The proofs as to the first of these three matters disclose Doniger to have been the operator of another corporation that had shown in this theatre two allegedly objectionable movies. One of them, called "Mom and Dad," which had not been stopped by the authorities, had run for a period of seven weeks in 1948, and the other, called "Because of Eve" (shown separately to men and women), which had been stopped by the police on the ground of lewdness, had run for one day in 1950. According to the police captain, the two pictures were of "the same significance * * * to my official knowledge." When action was brought by the corporation to restrain the city from interfering with the presentation of the latter picture, the Superior Court, striking
much of the testimony as hearsay, denied the restraint. However, in an action as to the other picture, between other parties, another judge of that court came to a contrary result. Hygienic Productions v. Keenan , 1 N.J. Super. 461 (Ch. Div. 1948). The film was held in the latter case not to be immoral or obscene -- that is, see Adams Theatre Co. v. Keenan , 12 N.J. 267, 272 (1953); cf. Bantam Books, Inc. v. Melko , 25 N.J. Super. 292, 310-319 (Ch. Div. 1953) -- not one in which the dominant note was
"erotic allurement 'tending to excite lustful and lecherous desire,' dirt for dirt's sake only, smut and inartistic filth, with no evident purpose but 'to counsel or invite to vice or voluptuousness.'"
Before evaluating these proofs, we should look first at the authority of the board. By ordinance, the board is empowered to revoke a license "in the interest of * * * the preservation and enhancement of * * * morality * * * of the people of the City of Union City." See R.S. 40:48-1 (6) speaking of "immorality." The parties not having dealt with the validity of this standard, we shall not do so either. However see Superior Films v. Department of Education , 74 S. Ct. 286 (1954), reversing Commercial Pictures Corporation v. Board of Regents , 305 N.Y. 336, 113 N.E. 2 d 502, 507 (Ct. App. 1953), where the statutory standard was "'immoral' or * * * will tend to corrupt morals." We shall assume that this standard, which deals with the revocation of a license, is not only valid, but is applicable also to the issuance of a license. Cf. Adams Theatre Co. v. Keenan , 12 N.J. 267, 270, 273 (1953), supra.
The charge that plaintiff is unfit to be licensed, is predicated entirely upon the showing of these two allegedly lewd movies; and the implication, that goes with the charge, is that these movies demonstrate an intention to exhibit burlesque also of a lewd sort. As held in Adams Theatre Co. v. Keenan, supra , a refusal to grant a license on this score is plainly insupportable unless the proofs reasonably tend to show that such in fact was his intention. Upon this matter, Doniger's conduct in the past is evidentiary.
Bonserk Theatre Corporation v. Moss , 34 N.Y.S. 2 d 541 (Sup. Ct. 1942); Committee for Industrial Organization v. Hague , 25 F. Supp. 127, 148 (D.C.N.J. 1938), and cases and articles cited, modified 101 F.2d 774 (C.C.A. 3 1939), affirmed 307 U.S. 496, 59 S. Ct. 954, 83 L. Ed. 1423 (1939); 53 C.J.S., Licenses , § 38, p. 635.
He had shown movies in this theatre for 13 years, apparently without any stigma, except from these two pictures. One, it may be noted, appeared three years before the present application, and the other, five years before. It is even more noteworthy that apparently no attempt was made to revoke the license of the movie corporation because of these pictures. As said in Adams Theatre Co. v. Keenan, supra:
"* * * having in view the constitutional protection accorded to speech and that speech is to be presumed to be protected speech and that the presumption is not the other way, such information cannot reasonably be viewed as establishing that plaintiff corporation will be guided by a person who ...