Bloss v. Paris Township

157 N.W.2d 260, 380 Mich. 466, 1968 Mich. LEXIS 159
CourtMichigan Supreme Court
DecidedApril 1, 1968
DocketCalendar 7, Docket 51,446
StatusPublished
Cited by26 cases

This text of 157 N.W.2d 260 (Bloss v. Paris Township) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bloss v. Paris Township, 157 N.W.2d 260, 380 Mich. 466, 1968 Mich. LEXIS 159 (Mich. 1968).

Opinions

Dethmers, C. J.

Plaintiff occupied, as lessee, certain land on which he operated an outdoor drive-in theater in defendant township. The individual defendants are officers and agents of that township. Plaintiff had operated the theater in the years 1963 and 1964 under license obtained from the township. Plaintiff’s application for renewal of the license for the period from May 1, 1965, to May 1, 1966, was denied by the township.

This suit was brought to enjoin interference with plaintiff’s operation of the theater and enforcement against him and his theater of an ordinance or so-called township resolution for licensing and regulating public amusement places. Defendants filed an answer and counterclaim praying that plaintiff be enjoined from operating the theater.

The circuit court, after multiple hearings on orders to show cause, complaint, counterclaim, et cetera, finally found for defendants, dismissed plaintiff’s complaint and caused an injunction to issue against him as defendants prayed.

After appeal taken to the Court of Appeals, denial there of stay of proceedings, and other actions occurring in that Court which did not completely dispose of the case, this Court granted plaintiff’s motion to bypass the Court of Appeals but denied his application to dissolve the trial court’s injunction. The [469]*469case is now before us on the merits. The controlling question is whether the trial court properly enjoined the operation by plaintiff of what it found to be a “public nuisance”.

There is ample evidence to support the trial court’s finding that the physical layout, construction and arrangement of the facilities and screen of plaintiff’s moving picture business on his leased premises were such that the pictures shown on the screen were clearly visible from a public street and residential properties adjacent to plaintiff’s business location and that they could be and were seen by children from such locations. To quote from the trial court’s opinion:

“The screen upon which these films are shown is 35 feet by 70 feet in dimension, and is 54 feet above the ground. The pictures upon it are clearly visible in the public streets which abut the theater property, in houses, and in front and rear yards of the homes which adjoin the streets. Young people and children in their homes, upon their lawns and yards, and in the public streets, can witness these films, and young people from other areas who, of course, become acquainted with the nature of the films being shown, come to these points of vantage to view the pictures.”

This the evidence supports.

The pictures, as indicated by the record, dwelt on the subjects of sex and the human anatomy. Plaintiff admitted on the witness stand and proclaimed in his newspaper advertising that the moving pictures shown were not fit to be seen by children below 18 years of age. He testified that he could not make money on his theater operation by showing so-called family-type pictures or others of a kind properly to be shown to younger persons below age 18 and that, therefore, he was showing the kind he did and that the defendants had no right, authority, or business [470]*470trying to tell him what type of pictures he could show.

What is a public nuisance? Joyce, Law of Nuisances, § 7, p 15, defines a public nuisance, inter alia, as an act which offends public decency. Cited to section 6, p 13, is the case of Hayden v. Tucker, 37 Mo 214, in which it was held that the keeping and standing of jacks and stallions within the immediate view of a private dwelling and a public highway is a nuisance which equity will enjoin as “a disgusting annoyance perpetually bringing the blush of shame to modesty and innocence.” The factual difference between the Hayden and the instant case, in that there involved was a display of equine and here pictures of the human frame, is not a distinction calling for a different conclusion as to the nuisance question.

The trial court in the case at bar quoted from Prosser in his work on Torts, Public Nuisance, § 89, p 605 to the effect that a public nuisance is an act that interferes “with the public health, * * * with public morals, * * * as in the ease of indecent exhibitions,” et cetera. The Prosser passage was quoted in Township of Garfield v. Young, 348 Mich 337, 342, after which this Court defined a public nuisance as including an activity that affects public morals.

It is our judgment that the foisting off of a display of pictures not fit for children to see onto places within their view on public streets, on residential properties and in private homes, without the consent of the property owners and the parents, is a public nuisance.

Plaintiff contends that the actions of the township and court below constitute censorship and a deprivation of his rights, under the First and Fourteenth Amendments, of freedom of speech and. of [471]*471the press. Plaintiff cites Jacobellis v. Ohio (1963), 378 US 184 (84A S Ct 1676; 12 L ed 2d 793), for the proposition that any form of censorship is an assault upon freedom of press and an infringement of freedom. There follows reliance on Butler v. Michigan (1956), 352 US 380 (77 S Ct 524; 1 L ed 2d 412), in which a statute making it a misdemeanor to sell or make available to the general reading public any book containing obscene language “tending to the corruption of the morals of youth” was held unconstitutional as violative of the Fourteenth Amendment’s due process clause. It will be observed, however, that in that case the court said that the legislation was not reasonably restricted to the evil with which it was said to deal, namely, corruption of the morals of youth, but, instead, it in effect reduced the adult population of Michigan to reading only what is fit for children. The court seems to suggest that prosecutions for that purpose might better be limited to cases of violations of another Michigan statute which was specifically designed to protect its children against obscene matter by prohibiting the giving of such matter to minor children. The trial court in the instant case quoted from plaintiff’s favorite case, Jacobellis, supra, the following (p 195):

“ ‘We recognize the legitimate and indeed exigent interest of States and localities throughout the Nation in preventing the dissemination of material deemed harmful to children. But that interest does not justify a total suppression of such material, the effect of which would be to “reduce the adult population to reading only what is fit for children.” Butler v. Michigan, 352 US 380, 383. State and local authorities might well consider whether their objectives in this area would be better served by laws aimed specifically at preventing distribution of objectionable material to children, rather than at totally pro[472]*472hibiting its dissemination. Since the present conviction is based upon exhibition of the film to the public at large and not upon its exhibition to children, the judgment must be reviewed under the strict standard applicable in determining the scope of the expression that is protected by the Constitution.’ ”

The trial court followed this Jacobellisan quotation with its own language as follows :

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Bloss v. Paris Township
157 N.W.2d 260 (Michigan Supreme Court, 1968)
Bloss v. Paris Township
159 N.W.2d 867 (Michigan Court of Appeals, 1968)

Cite This Page — Counsel Stack

Bluebook (online)
157 N.W.2d 260, 380 Mich. 466, 1968 Mich. LEXIS 159, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bloss-v-paris-township-mich-1968.