sought is against the further prosecution of the pending case. * * *
'The constitutional question said to be for determination by the Federal court is one which the state court is competent to deal with in the criminal action pending before it. Its decision of the Federal question is subject to ultimate review in the Supreme Court of the United States. An adequate legal remedy is thus available. * * *' 99 F.2d at page 740.
Restraint of a pending criminal prosecution for violation of an unconstitutional state law has been denied even where the court deems it necessary to restrain threatened future prosecutions under the void statute, Cline v. Frink Dairy Co., 1927, 274 U.S. 445, 47 S. Ct. 681, 71 L. Ed. 1146. The plaintiff gas transmission company in this case has not asserted grounds for equitable relief insofar as it seeks to restrain the defendant's officials from prosecuting and defendant's Municipal Court from hearing the pending criminal prosecution against the plaintiff for violation of Ordinance No. 26. Plaintiff has advanced serious objections to the ordinance, asserting it to be invalid both on the basis of state law and on the basis of federal law. These objections can be raised at the trial of the criminal action and at the appeal if the outcome is adverse to the plaintiff. The federal question can be raised in an appeal to the Supreme Court of the United States. It would be an abuse of discretion for this court to intrude in the pending criminal proceedings in the Municipal Court of the Township of Bernards.
As to the third aspect of plaintiff's motion, a request for an order restraining the municipality from instituting future criminal proceedings against the plaintiff for violation of Ordinance No. 26, such an order restraining enforcement of a state law will issue only if it is necessary to prevent irreparable injury which is clear and imminent. The case of Douglas v. City of Jeannette, 1943, 319 U.S. 157, 63 S. Ct. 877, 87 L. Ed. 1324, concerned a suit be certain members of the Jehovah's Witnesses sect to restrain threatened criminal prosecution of them in the state courts for violation of a city ordinance which prohibited solicitation of orders for merchandise without first procuring a license from the city and paying a license tax. The Court of Appeals reversed the district court which had enjoined the defendants from enforcing the ordinance against the plaintiffs. Though in a companion case the Supreme Court held the ordinance as applied to be unconstitutional, Murdock v. Pennsylvania, 1943, 319 U.S. 105, 63 S. Ct. 891, 87 L. Ed. 1292, it affirmed the Court of Appeals, holding that federal courts should restrain criminal cases arising under state laws only in exceptional cases. The Court declared:
'Notwithstanding the authority of the district court, as a federal court, to hear and dispose of the case, petitioners are entitled to the relief prayed only if they establish a cause of action in equity. Want of equity jurisdiction, while not going to the power of the court to decide the cause, Di Giovanni v. Camden Fire Ins. Ass'n, 296 U.S. 64, 69, 56 S. Ct. 1, 3, 80 L. Ed. 47; Commonwealth of Pennsylvania v. Williams, 294 U.S. 176, 181, 182, 55 S. Ct. 380, 383, 79 L. Ed. 841, 96 A.L.R. 1166, may nevertheless in the discretion of the court, be objected to on its own motion. Twist v. Prairie Oil (& Gas) Co., 274 U.S. 684, 690, 47 S. Ct. 755, 757, 71 L.Ed 1297; Commonwealth of Pennsylvania v. Williams, supra, 294 U.S. at Age 185, 55 S. Ct. at page 385, 79 L. Ed. 841, 96 A.L.R. 1166. Especially should it do so where its powers are invoked to interfere by injunction with threatened criminal prosecutions in a state court.
'The power reserved to the states under the Constitution to provide for the determination of controversies in their courts may be restricted by federal courts only in obedience to Congressional legislation in conformity to the Judiciary Article of the Constitution. Congress, by its legislation, has adopted the policy, with certain well defined statutory exceptions, of leaving generally to the state courts the trial of criminal cases arising under state laws, subject to review by this Court of any federal questions involved. Hence, courts of equity in the exercise of their discretionary powers should conform to this policy by refusing to interfere with or embarrass threatened proceedings in state courts save in those exceptional cases which call for the interposition of a court of equity to prevent irreparable injury which is clear and imminent; and equitable remedies infringing this independence of the states- though they might otherwise be given- should be withheld if sought on slight or inconsequential grounds.
'It is a familiar rule that courts of equity do not ordinarily restrain criminal prosecutions. No person is immune from prosecution in good faith for his alleged criminal acts. Its imminence, even though alleged to be in violation of constitutional guaranties, is not a ground for equity relief since the lawfulness or constitutionality of the statute or ordinance on which the prosecution is based may be determined as readily in the criminal case as in a suit for an injunction. Where the threatened prosecution is by state officers for alleged violations of a state law, the state courts are the final arbiters of its meaning and application, subject only to review by this Court on federal grounds appropriately asserted. Hence the arrest by the federal courts of the processes of the criminal law within the states, and the determination of questions of criminal liability under state law by a federal court of equity, are to be supported only on a showing of danger of irreparable injury 'both great and immediate.'
'* * * It does not appear from the record that petitioners have been threatened with any injury other than that incidental to every criminal proceeding brought lawfully and in good faith, or that a federal court of equity by withdrawing the determination of guilt from the state courts could rightly afford petitioners any protection which they could not secure by prompt trial and appeal pursued to this Court. * * *' 319 U.S. at pages 162-164, 63 S. Ct. at page 880.
The plaintiff here contends that it is faced with a danger of irreparable injury, grave and immediate, unless threatened prosecutions of it under Ordinance No. 26 are restrained, for each day in which gas is in the pipe constitutes a violation of the ordinance, subjecting the plaintiff to liability for a fine of $ 200 or, as to its employees, 90 days in jail or both. With this contention I cannot agree. The plaintiff has not shown that the defendant intends to harass it with numerous prosecutions; it has not shown that the operation of its gas transmission facilities, if and when it receives a new certificate of public convenience and necessity, would be curtailed by the municipality's future criminal proceedings, should any be brought. Further, as there is already a criminal suit pending against the plaintiff in the municipal court it has available to it a forum where it may raise its objections to the ordinance. Adequate procedures for appeal from the judgment of the municipal court are available. Rule 2:11, New Jersey Rules of Criminal Practice. It would seem eminently desirable that the New Jersey courts pass upon the ordinance in the first instance, for the plaintiff advances serious questions as to its validity under state law as well as under federal law. Consequently plaintiff's motion for a preliminary injunction will be denied both as to restraint of the prosecution of the pending criminal suit and as to the restraint of future criminal suits.
As this court has jurisdiction of the cause, however, and as the plaintiff may be able to prove at a full hearing that threatened future criminal prosecutions will subject it to grave and irreparable injury, defendant's motion to dismiss for lack of jurisdiction will likewise be denied. As suggested in A. F. of L. v. Watson, supra, the ultimate disposition of this case may depend upon now unforeseeable events attendant upon the course of the litigation in the state proceedings.
Let an order in conformity with this opinion be submitted.