Opinion
July 2, 1962
This is a proceeding to review the denial of the Board of Regents for the issuance of a license for the exhibition of the motion picture "The Connection". The sole ground for refusing a license to show the motion picture is premised on obscenity in the use of the word "shit". In most instances the word is not used in its usual connotation but as a definitive expression of the language of the narcotic. At most, the use of the word may be classified as vulgar but it is not obscene, pursuant to section 122 Educ. of the Education Law, and the determination of the Board of Regents is annulled. The petitioner further alleges that the licensing section (§ 126) is unconstitutional as the fiscal charge constitutes the imposition of a tax and not a fee. ( People v. Jarvis, 19 App. Div. 466, 469.) Suffice it to note that the Legislature of this State in 1961 amended the section by reducing the fees charged so that we must assume, as of now, that the present charges are fair and reasonable. The presumption that the section is constitutional prevails. Determination of the Board of Regents annulled, with $50 costs to the petitioner. Bergan, P.J., Gibson, Herlihy, Reynolds and Taylor, JJ., concur.