This is a petition brought to implement Butler v. Haley Greystone Corp., remanded to the Land Court in 347 Mass. 478 , and decided on appeal in Butler v. Haley Greystone Corp. 352 Mass. 252 . The matters involved here were thoroughly discussed in those two opinions and further discussion is unnecessary in that the rights of the parties were there fully reviewed and determined. The correction of the appropriate certificate of title was properly ordered by the Land Court conformable to the rescripts from this court and there was no error in the decision before us on appeal. New York Life Ins. Co. v. Embassy Realty Co. Inc. 293 Mass. 352 , 355-356.
Decision affirmed with costs to the petitioners.
The plaintiff appeals from two final decrees entered in the Superior Court in two suits tried together pursuant to Murphy v. Furcolo, 353 Mass. 745 . That rescript opinion described the principal issue at stake to be the ownership of a bond purchased by one of the defendants in that case during the bizarre course of events described in Commonwealth v. Carson, 349 Mass. 430 , and held in the custody of the clerk of the Suffolk Superior Court for Civil Business. After hearing, the trial judge, who found the subject matter of the two suits before him identical, ruled that the trustee in bankruptcy of Hancock Raceway, Inc. was the beneficial owner of the bond for the benefit of the creditors of Hancock Raceway, Inc. and ordered the clerk to deliver it to his attorney. The evidence was not reported. There was no error. During the first trial of an earlier entered case, Murphy v. Furcolo, 350 Mass. 772 , the plaintiff absented himself purposely from the trial. A final decree was entered in that case dismissing his bill. His subsequent motion to vacate this decree was denied, as was his petition for leave to file a bill of review, an action we upheld in Murphy v. Furcolo, 350 Mass. 772 . The court properly ruled that the final decree in the first case was res judicata as to the plaintiff's claims in these cases. See Ratner v. Rockwood Sprinkler Co. 340 Mass. 773 , 776. The facts found by the judge amply support his decrees, which hopefully bring to a close this long litigation steeped in chicanery and deceit. Kittredge v. Manning, 317 Mass. 689 , 691.
[Note 1] Joseph L. Murphy vs. Charles F. Furcolo.
In this case, reserved and reported without decision by a single justice, injunctive relief is sought against prosecution of the producers and members of the cast of a performance called "Hair," for violation of G. L. c. 272, Sections 16 and 32. Declaration is sought that prosecution would contravene various constitutional provisions. Each justice participating has seen the performance at the request of the parties. One scene shows members of the cast in the nude facing the audience. One nude male performer is bathed on stage. There is incidental stage action which a jury could conclude was clowning intended to simulate sexual intercourse or deviation. This appears to be less realistic than the conduct discussed in People v. Bercowitz, 61 Misc. 2d (N. Y.) 974. The play in various respects will be offensive to some persons.
It constitutes, however, in some degree, an obscure form of protest protected under the First Amendment. Viewed apart from the specific incidents mentioned above, it is not lewd and lascivious, whatever other objections there may be to it. The incidents, already mentioned are separable from, and wholly unnecessary to, whatever theme this noisy, disorganized performance may have. Discretionary equitable jurisdiction, infrequently exercised, exists to restrain enforcement of an unconstitutional criminal statute or unconstitutional application of a valid statute. See Slome v. Chief of Police of Fitchburg, 304 Mass. 187 , 188; Kenyon v. Chicopee, 320 Mass. 528 , 531, 535. Reasonable doubts are asserted whether the statutes cited have application to dramatic performances (cf. Re Giannini, 69 Cal. 2d 563-577), and whether, if so applied, these statutes may be unconstitutionally vague. See Alegata v. Commonwealth, 353 Mass. 287 , 293. Injunctive relief will be given, but, by analogy to the principle that he who seeks equity must do equity, the injunction, to be framed in the county court, shall be conditioned upon excision forthwith of the specified lewd features so as (a) to have each member of the cast clothed to a reasonable extent at all times, and (b) to eliminate completely all simulation of sexual intercourse or deviation. Nothing in this opinion or any injunction is to preclude prosecution for any misuse of the national flag, a matter not argued to us.