Opinion
21752.
ARGUED SEPTEMBER 14, 1962.
DECIDED OCTOBER 1, 1962.
Sale of obscene literature, etc.; constitutional question. Fulton Superior Court. Before Judge Moore.
Buchanan, Edenfield Sizemore, Newell Edenfield, for plaintiffs in error.
Paul Webb, Solicitor General, J. Walter LeCraw, Assistant Solicitor General, contra.
By exempting radio and television stations, theatres and newspapers from operation of its provisions making criminal the possessing, selling, etc., of obscene materials while subjecting all others so doing to the terms of the law, the statute (Ga. L. 1956, p. 801; Code Ann. § 26-6301) offends Art. I, Sec. I, Par. II of the Constitution (Const. of 1945; Code Ann. § 2-102) in that it denies equal protection, and it was error to overrule the demurrer to the indictment raising this question.
ARGUED SEPTEMBER 14, 1962 — DECIDED OCTOBER 1, 1962.
This is a criminal case involving a joint indictment against the accused that they did unlawfully sell and offer to sell and did possess for the purpose of selling at a certain newsstand certain indecent, obscene and immoral pictorial magazines, pamphlets and booklets, tending to debauch the morals, the accused having knowledge of the nature of the contents of said publications; the indictment thereafter setting forth descriptions of said pictures and subject matter contained in the booklets. The indictment is alleged to be an offense of "violating Sec. 26-6301, Supp. Code of Ga." Before pleading to the merits of the indictment, the defendants presented their demurrers and plea in abatement. After a hearing thereon the court overruled the same, and the exception is to this judgment, the pleadings having raised certain constitutional attacks upon the statute and the indictment. In particular, one of the constitutional attacks is that the statute upon which the indictment is based is discriminatory in that it violates Art. I, Sec. I, Par. II of the Constitution of Georgia ( Code Ann. § 2-102; Const. of 1945) providing that "Protection to person and property is a paramount duty of government and shall be impartial and complete."
The case is before this court on review because of the constitutional attacks upon the statute.
While the demurrer attacks the indictment upon many grounds including constitutional attacks upon the statute (Ga. L. 1956, p. 801; Code Ann. § 26-6301), a decision on the attack upon the law which asserts that it offends Art. I, Sec. I, Par. II of the Constitution of Georgia ( Code Ann. § 2-102) which provides that, "Protection to person and property is the paramount duty of government, and shall be impartial and complete," will dispose of the case. The invoked clause of the Constitution interdicts discrimination in laws. It demands uniformity and impartiality and hence, forbids discrimination. But it is well established law by decisions of this court that this clause of the Constitution allows classification by legislation when and only when the basis of such classification bears a direct and real relation to the object or purpose of the legislation, and when thus classified, uniformity upon all those coming within the class satisfies the Constitution. Coy v. Linder, 183 Ga. 583 ( 189 S.E. 26); Carmichael v. Atlanta Gas-Light Co., 185 Ga. 34 ( 193 S.E. 896); Geele v. State, 202 Ga. 381 ( 43 S.E.2d 254, 172 ALR 196); The Ledger-Enquirer Co. v. Brown, 213 Ga. 538 ( 100 S.E.2d 166). To the same effect see 16A CJS 239, § 489. The cited decisions make it crystal clear that an arbitrary classification, where there exists no real difference as concerns the purpose of the legislation, is not allowed and constitutes a violation of the Constitution notwithstanding an arbitrary attempt to classify and then discriminate as between those in the different classifications. We now look to the law under attack and test it by the foregoing standards. We quote the act in its entirety as follows: "Any person who shall bring, or cause to be brought, into this State for sale, exhibition, or shall sell or offer to sell, or shall lend or give away or offer to lend or give away, or who shall possess or having possession thereof, shall knowingly exhibit or transmit to another any indecent, immoral or obscene pictorial newspaper, book, pamphlet, magazine, newspaper, film, picture, recording or other printed paper or obscene matter principally made up of pictures, stories or sounds of deeds of lust tending to debauch the morals, or shall advertise any of said articles or things for sale, by any form of notice, printed, written, or verbal, or shall manufacture, draw, or print any of said articles, with intent to sell or expose or to circulate the same, shall upon conviction, be punished by confinement and labor in the penitentiary for not less than one nor more than five years. However, upon the recommendation of the jury, said offense may be punished as for a misdemeanor. Provided, that any legitimate or licensed radio station, television station, moving picture theater, or newspaper, published primarily for the distribution of public news, shall be exempt from the provisions of this Act."
The indisputable purpose of the law is to prevent injury to the public which would result from the making, importation, possessing, advertising, selling or giving away any of the obscene materials covered by the law. No rational distinction can be found between the evils which the act seeks to prevent that would flow from the handling in the manners forbidden of the obscene materials by those to whom the law is applicable or those whom the law exempts from its operation; therefore no justification or reason exists for the classification which is the rankest sort of discrimination. Therefore, the exemption renders the law under which this indictment is drawn offensive to the invoked clause of the Constitution, and for that reason the act is unconstitutional and void.
The court erred in overruling the demurrer containing this ground of attack and in refusing to dismiss the indictment.
Judgment reversed. All the Justices concur, except Head, P. J., who dissents.