McNamee, J.
Various applications were made by the petitioners to the State Education Department for a license to display a motion picture, and its speaking parts, entitled " Tomorrow’s Children.” The picture was reviewed and rejected successively between May 5, 1934, and August 20, 1937, by the reviewers of the picture division of the Department of Education, by the director of the division, and again by the reviewers upon a revision of the picture, and finally by the Commissioner of Education of the State. The grounds of rejection and of refusal were that the picture was “ immoral,” “ will tend to corrupt morals,” and “ will tend to incite to crime.” In connection with the argument the picture was viewed by this court.
A display of the picture opens with a foreword, which indicates its purpose and content, and which states, among other things, that sterilization is an operation performed on human beings to prevent the production of children; that it is a form of birth control; that it is “ an immoral means to a desirable end.”
[477]*477Among other things and briefly, the picture portrays a Catholic priest preaching a sermon against sterilization, a group of welfare women being orally instructed in the theory and its consequences, young doctors in a hospital discussing its efficacy. Then is represented a drunkard and his poverty-stricken, feeble-roinded family, with its sick, crippled, and criminal members, and a normal, attractive foster daughter. The welfare workers are shown later as inducing the father and mother to submit themselves and their children to sterilization in exchange for “ help,” including the normal foster child. In the depiction of the foster daughter, the young woman refuses to submit, escapes, is pursued, imprisoned, and is brought before the court, sentenced to submit to the operation, is seen on the operating table, prepared for the surgeon’s knife, and finally as being released on the sudden discovery that she is not the natural child of the family, and, therefore, there was no law permitting the mutilation of her body against her will. Other scenes in the hospital are displayed, with sterilization operations in progress. The judge exercising this extraordinary power over the persons of others and passing sentence is exhibited as corrupt and venal, the court room as occupied by the obviously feeble-minded and criminal ; and, again, the judge is shown discharging a frenzied, moronic, sexual pervert upon the intervention oí a “ senator ” exerting political influence on the court.
Practically every announcement and speaking part heard and every action exhibited, except those of the wholesome love affair between the foster daughter and her fiancé, interpret and elucidate sterilization as a means and a method of contraception and birth control, or tend to that end. The reproduction of the species and its prevention exclude almost every other consideration. The reproductive organs are the theme and their perversion is the topic of the picture, and without reference thereto the picture would have neither plot nor substance.
The picture in question was intended to be viewed and its dialogue heard by mixed audiences óf men, women and children of all degrees of mental and moral cultivation, including members of the great body of devotees and votaries of religion. And the question here is whether the representatives of the Department of Education have rejected the picture and refused the license capriciously or arbitrarily, or have done so in compliance with the law. The question of the good faith of the Commissioner is not in the case.
The public display of motion pictures in this State for pay is prohibited unless a license therefor is granted by the Department of Education, and unless it shall contain identification matter “ which [478]*478such department shall prescribe.” (Education Law, § 1089.) Provision is thus made to inform the public whether a given picture has met the legal and moral requirements of the law. The statute also requires that the Department shall issue a license, “ unless such film or a part thereof is obscene, indecent, immoral, inhuman, sacrilegious, or is of such a character that its exhibition would tend to corrupt morals or incite to crime.” (§ 1082.)
The Commissioner is constituted the fact-finding agency under the statute and has been intrusted by the Legislature with the duty of determining whether or not a picture is immoral, tends to corrupt morals or to incite to crime. And it has now become academic I under our law that if there is evidence to constitute a reasonable / basis for the determination of the Commissioner, if his determina- / tion is not arbitrary nor capricious, if the verdict of a jury reaching the same conclusion would not be set aside as against the weight of evidence, the court is not at liberty to disturb his finding. Citations of authority for this rule might well be regarded as superfluous, but some will be mentioned later.
The petitioners rely in a special.jvay on several cases to support their position, viz., People v. Muller (96 N. Y. 408); People v. Eastman (188 id. 478), and People v. Wendling (258 id. 451). All of these were cases of criminal prosecution under the Penal Law, and not comparable either in fact or in law. And in the Wendling case, most heavily relied upon, the court held only that the showing of base people on the stage, including prostitutes, and the use of coarse and profane language, was not a violation of section 1140-a of the Penal Law. The court was then at pains to say: “We do not purpose to sanction indecency on the stage by this decision or to let down the bars against immoral shows or to hold that the depiction of scenes of bawdry on the stage is to be tolerated,” but that the showing of people who are not “ nice ” does not make an obscene play (p. 455). The Halsey case, cited by the petitioners, was an action for malicious prosecution, and in the main the case involved the question of probable cause and whether or not a book is salacious because it embodies a few paragraphs of that character. (Halsey v. New York Society, 234 N. Y. 1.) Again the citation is not useful because there the action was one for damages, and the rights of the parties were determined at common law and not, as here, by the terms of a statute.
As this case is not a prosecution under penal provisions nor one at common law, so a motion picture, as this court has already held, is neither a book, a newspaper nor literature, but “ a spectacle or show rather than a medium of opinion and the latter quality is a mere incident to the former.” And, further, in the same case, [479]*479this court said, through Hinman, J.: “ Certainly there are some things which are happening in actual life today which should not have pictorial representation in such places of amusement as are regulated by this legislation, places where the audiences are not confined to men alone or women alone and where children are particularly attracted.” (Pathe Exchange, Inc., v. Cobb, 202 App. Div. 450, 456, 457.)
In that case the picture involved only “ current events ” and not a studied creation inherently tending to distort the minds of the unwary and of children, to teach the corruption of courts and to portray devices for circumventing the Penal Law.
The Lord case was a picture involving venereal diseases, and the claim was that it was educational.
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McNamee, J.
Various applications were made by the petitioners to the State Education Department for a license to display a motion picture, and its speaking parts, entitled " Tomorrow’s Children.” The picture was reviewed and rejected successively between May 5, 1934, and August 20, 1937, by the reviewers of the picture division of the Department of Education, by the director of the division, and again by the reviewers upon a revision of the picture, and finally by the Commissioner of Education of the State. The grounds of rejection and of refusal were that the picture was “ immoral,” “ will tend to corrupt morals,” and “ will tend to incite to crime.” In connection with the argument the picture was viewed by this court.
A display of the picture opens with a foreword, which indicates its purpose and content, and which states, among other things, that sterilization is an operation performed on human beings to prevent the production of children; that it is a form of birth control; that it is “ an immoral means to a desirable end.”
[477]*477Among other things and briefly, the picture portrays a Catholic priest preaching a sermon against sterilization, a group of welfare women being orally instructed in the theory and its consequences, young doctors in a hospital discussing its efficacy. Then is represented a drunkard and his poverty-stricken, feeble-roinded family, with its sick, crippled, and criminal members, and a normal, attractive foster daughter. The welfare workers are shown later as inducing the father and mother to submit themselves and their children to sterilization in exchange for “ help,” including the normal foster child. In the depiction of the foster daughter, the young woman refuses to submit, escapes, is pursued, imprisoned, and is brought before the court, sentenced to submit to the operation, is seen on the operating table, prepared for the surgeon’s knife, and finally as being released on the sudden discovery that she is not the natural child of the family, and, therefore, there was no law permitting the mutilation of her body against her will. Other scenes in the hospital are displayed, with sterilization operations in progress. The judge exercising this extraordinary power over the persons of others and passing sentence is exhibited as corrupt and venal, the court room as occupied by the obviously feeble-minded and criminal ; and, again, the judge is shown discharging a frenzied, moronic, sexual pervert upon the intervention oí a “ senator ” exerting political influence on the court.
Practically every announcement and speaking part heard and every action exhibited, except those of the wholesome love affair between the foster daughter and her fiancé, interpret and elucidate sterilization as a means and a method of contraception and birth control, or tend to that end. The reproduction of the species and its prevention exclude almost every other consideration. The reproductive organs are the theme and their perversion is the topic of the picture, and without reference thereto the picture would have neither plot nor substance.
The picture in question was intended to be viewed and its dialogue heard by mixed audiences óf men, women and children of all degrees of mental and moral cultivation, including members of the great body of devotees and votaries of religion. And the question here is whether the representatives of the Department of Education have rejected the picture and refused the license capriciously or arbitrarily, or have done so in compliance with the law. The question of the good faith of the Commissioner is not in the case.
The public display of motion pictures in this State for pay is prohibited unless a license therefor is granted by the Department of Education, and unless it shall contain identification matter “ which [478]*478such department shall prescribe.” (Education Law, § 1089.) Provision is thus made to inform the public whether a given picture has met the legal and moral requirements of the law. The statute also requires that the Department shall issue a license, “ unless such film or a part thereof is obscene, indecent, immoral, inhuman, sacrilegious, or is of such a character that its exhibition would tend to corrupt morals or incite to crime.” (§ 1082.)
The Commissioner is constituted the fact-finding agency under the statute and has been intrusted by the Legislature with the duty of determining whether or not a picture is immoral, tends to corrupt morals or to incite to crime. And it has now become academic I under our law that if there is evidence to constitute a reasonable / basis for the determination of the Commissioner, if his determina- / tion is not arbitrary nor capricious, if the verdict of a jury reaching the same conclusion would not be set aside as against the weight of evidence, the court is not at liberty to disturb his finding. Citations of authority for this rule might well be regarded as superfluous, but some will be mentioned later.
The petitioners rely in a special.jvay on several cases to support their position, viz., People v. Muller (96 N. Y. 408); People v. Eastman (188 id. 478), and People v. Wendling (258 id. 451). All of these were cases of criminal prosecution under the Penal Law, and not comparable either in fact or in law. And in the Wendling case, most heavily relied upon, the court held only that the showing of base people on the stage, including prostitutes, and the use of coarse and profane language, was not a violation of section 1140-a of the Penal Law. The court was then at pains to say: “We do not purpose to sanction indecency on the stage by this decision or to let down the bars against immoral shows or to hold that the depiction of scenes of bawdry on the stage is to be tolerated,” but that the showing of people who are not “ nice ” does not make an obscene play (p. 455). The Halsey case, cited by the petitioners, was an action for malicious prosecution, and in the main the case involved the question of probable cause and whether or not a book is salacious because it embodies a few paragraphs of that character. (Halsey v. New York Society, 234 N. Y. 1.) Again the citation is not useful because there the action was one for damages, and the rights of the parties were determined at common law and not, as here, by the terms of a statute.
As this case is not a prosecution under penal provisions nor one at common law, so a motion picture, as this court has already held, is neither a book, a newspaper nor literature, but “ a spectacle or show rather than a medium of opinion and the latter quality is a mere incident to the former.” And, further, in the same case, [479]*479this court said, through Hinman, J.: “ Certainly there are some things which are happening in actual life today which should not have pictorial representation in such places of amusement as are regulated by this legislation, places where the audiences are not confined to men alone or women alone and where children are particularly attracted.” (Pathe Exchange, Inc., v. Cobb, 202 App. Div. 450, 456, 457.)
In that case the picture involved only “ current events ” and not a studied creation inherently tending to distort the minds of the unwary and of children, to teach the corruption of courts and to portray devices for circumventing the Penal Law.
The Lord case was a picture involving venereal diseases, and the claim was that it was educational. The opinion states that it showed persons in the nude, but to what extent or in what manner is not indicated. There this court, speaking through Whitmter, J., said: “ Here, it is not alleged and it does not appear that the examining officials acted in bad faith, or capriciously, or arbitrarily, or without reasonable grounds for apprehending that public morality, decency, or welfare would be endangered. * * * There is only a difference of opinion as to the character of the picture. That is a question of fact, the determination of which has been committed to the Education Department. There is evidence to support its determination. And it is not a case where, upon all the evidence, there was such a preponderance the other way that the verdict of a jury to the same effect * * * would be set aside by the court as against the weight of evidence,” and, therefore, there was no question to review. (Matter of Public Welfare Pictures Corp. v. Lord, 224 App. Div. 311.)
In the Bell case the picture under consideration was entitled “ Birth Control,” showing particularly a widely publicized person. The Special Term enjoined the commissioner of licenses against interfering with the production. The Appellate Division unanimously reversed, despite the fact that the plaintiff proposed to exhibit the picture only to adults, saying that “ The nature of the subject dealt with by this motion picture in itself is evidence that there is room for an honest opinion on the part of the defendant that the presentation of the photo-play will be injurious to public morality, decency and welfare. The Legislature has declared it to be against the public interests to have contraceptive information disseminated. * * * It fairly appears that the concentration of the minds of those in attendance at such a production on this question of birth control for a considerable period of time — for the film is long — may engender a desire to obtain the information, of the existence of which they are thus assured, and lead to violations of the law.” (Message Photo-Play Co., Inc., v. Bell, 179 App. Div. 13, 20, 21.)
[480]*480In the Edgerton case a license was revoked, and the County Court annulled the revocation. The Appellate Division, in reversing the County Court and denying the license, stated the policy which is in harmony with the statute, viz., “ Even though the picture inculcates such a lesson, it does not necessarily follow that the exhibition may not offend against public decency. However desirable it may be to disseminate such knowledge, it may well be doubted that it should be done by means of a picture show in a public playhouse.” (Genesee Recreation Co. v. Edgerton, 172 App. Div. 464, 466.)
“ Tomorrow’s Children ” publicizes and elucidates sterilization as a means to prevent the conception of children, that it is a form of birth control, contraception without penalty, and that it is “ an immoral means to a desirable end.” It declares its own immorality. It tends to inculcate the fact that venal judges in court dispense injustice and that young girls may be mutilated, unlawfully, but under the forms of law, when accident does not prevent. It demonstrates the manner how and the ease with which the law may be violated. The content of the picture is devoted to an illegal practice which is, as a matter of common knowledge, immoral and reprehensible according to the standards of a very large part of the citizenry of the State.
Many things may be necessary in surgery which are not proper subjects for the movies. The teaching and demonstration of many facts may be necessary to the classroom of the law school, the medical school and clinic, the research laboratory, the doctor’s office, and even the theological school, which are not proper subject-matter for the screen. This court, speaking through Rhodes, J., recently upheld the Commissioner of Education in his refusal to grant a license for a picture on the ground that the picture “ unduly emphasizes the carnal side of the sex relationship.” (Matter of Eureka Productions, Inc., v. Byrne, 252 App. Div. 355.)
The law of New York prohibits the dissemination of any written advertisement, circular or notice, of any kind of a recipe to prevent conception, and prescribes that one who thus offends is guilty of crime. (Penal Law, § 1142.) It is our view that a public presentation of the picture “ Tomorrow’s Children ” is a clear violation of that provision. The Commissioner of Education is intrusted by the State with the education of its children, which necessarily involves obedience to law; and by the statute in question he is also charged with the duty of protecting their morals in keeping with the moral standards of the people of this State. His action in rejecting this picture and in refusing a license in this case we regard as neither capricious nor arbitrary, but a proper exercise of the office with which he is clothed.
[481]*481The determination should be confirmed, with costs against the petitioners.
Crapser and Bliss, JJ., concur; Hill, P. J., and Heffernan, J., dissent in an opinion by Hill, P. J., in which Heffernan, J., concurs.