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Bantam Books Inc. v. Melko

Decided: March 31, 1953.


Goldmann, J.s.c.


This injunction action results from the defendant's promulgation of a list of publications found "objectionable" by a citizens' committee. The proceedings center upon the committee's ban of The Chinese Room , a novel by Vivian Connell, but involved here is the larger question of extra-legal censorship.

Plaintiff, a New York corporation, has for some years been engaged in the business of publishing and selling paper-bound 25- and 35-cent reprints of books. Among them is The Chinese Room , first published by the Dial Press in 1942 and reprinted by plaintiff in 1948 at 25 cents a copy, pursuant to an arrangement with the original publisher. There were ten additional printings of the paper-bound edition before this action was instituted in February 1951. More than 2,500,000 copies of the novel have been sold throughout the United States and Canada.

Plaintiff distributes its books through circulation companies, among them the Curtis Circulation Company of Philadelphia which supplies the New Brunswick News Dealers Supply Company, of New Brunswick, N.J., and the Union County News Dealers Supply Company, of Elizabeth, N.J. Both serve Middlesex County and distribute plaintiff's reprints to newspaper stands, stores and other outlets in that area.

Some time before May 1950 the defendant Melko, then Prosecutor of the Pleas of Middlesex County, formed or accepted the services of a so-called Committee on Objectionable Literature, composed of citizens of the county. The purpose of the committee was to review publications offered for sale in Middlesex County, in order, as it is alleged, to determine whether they were fit and suitable reading for the public.

Defendant assigned Detective Bucko of his staff to work with the committee. He would visit stores and newspaper stands throughout the area, particularly those near schools, inform the owner of the state-wide drive against obscene literature, and ascertain what publications were in heavy demand, especially among young people. He would then

select copies for the temporary use of the committee -- these apparently were later returned, except for those found objectionable. Each member received for review an equal share of the books and magazines garnered by Bucko, and eventually would report to the full committee which of them were objectionable and which unobjectionable. Defendant then prepared his list of objectionable publications on the basis of the committee's recommendation.

On May 5, 1950 defendant wrote the New Brunswick News Dealers Supply Company, copy to the Attorney-General of the State, as follows:

"Pursuant to the policy which I understand has been adopted by distributors of magazines and books to withdraw from circulation such literature as is found objectionable by the County Prosecutor and a committee appointed for that purpose, I am submitting herewith a list of all such publications which have been examined by the Middlesex County Committee and have been found to be of such nature that they should be withdrawn from circulation.

Will you please acknowledge receipt of this communication and advise me what steps you will take in the matter?

Very truly yours,

Matthew F. Melko,

Prosecutor of the Pleas of

Middlesex County."

(In passing, it may be observed that there is no proof of a "policy" adopted by the distributors, such as is referred to in the letter.)

The list mentioned in the letter contained 36 titles, of which 20 were distributed by the New Brunswick company. Five of the 36 titles were reprints published by the plaintiff.

The company manager, Ben Gelfand, acknowledged receipt of the above letter on May 9, stating "we shall do everything possible to cooperate with your wishes." Gelfand testified that he regarded the letter as a mandate to remove the books; his company did not want to get into trouble with the prosecutor's office or invite bad publicity. The New Brunswick News Dealers Supply Company immediately withdrew the objectionable publications, including The Chinese Room , from all retail outlets serviced by it.

Gelfand sent a copy of the prosecutor's letter to Edward Koch, manager of the Union County News Dealers Supply Company in Elizabeth. Koch then wrote the defendant:

"We have been informed that your office has issued a list of publications that you have found objectionable and which you have banned from the newsstands in Middlesex County.

As we distribute magazines and allied publications in sections of Middlesex County, we ask that we be furnished with this and any subsequent lists."

Defendant replied immediately on May 10, 1952:

"In response to your request we are attaching hereto a list of objectionable literature to be withdrawn from circulation.

We appreciate your sincere cooperation."

The list was the same as that which accompanied the May 5 letter to the New Brunswick company.

Koch testified that his company, too, withdrew all copies of publications distributed by it which were on the list. He interpreted the "cooperation" mentioned at the close of the prosecutor's letter as an order to take the books out of circulation; if not, the company would be prosecuted. Koch, like Gelfand, testified there had been many requests for The Chinese Room , but that no copies were supplied to retailers after May 10.

Upon learning of what had happened, plaintiff requested defendant to have the citizens committee again review five of the listed books. This was done, for on July 25, 1950, Prosecutor Melko wrote to plaintiff's then attorney, stating that the committee was of the opinion that four of the titles

"should not be included on the list of objectionable books. The committee feels that the fifth book, 'The Chinese Room' is properly listed as being objectionable and recommends its being kept on the list."

There were further conferences at which The Chinese Room was discussed. The results, insofar as plaintiff was

concerned, were negative. On November 28, 1950, defendant wrote plaintiff's present attorney as follows:

"Dear Mr. Steiner:

I am compelled to agree with Mr. Charles A. Pascal, Chairman of the Middlesex County Committee on Objectionable Literature, that the above named book is one that should not be exposed for sale where it can be purchased by school children.

I feel that the Committee is justified in requesting the distributors not to forward copies of this book to Middlesex County.

Very truly yours,

Matthew F. Melko

Middlesex County Prosecutor"

The complaint charges that the defendant's action in not allowing The Chinese Room to come into Middlesex County is "invalid and illegal and beyond the scope of his office and that there is no legislative authority or any statute of the State of New Jersey under which the defendant could have acted where no crime has been committed or charged." Further, plaintiff alleges that "the pretended authority of the defendant in calling into action the committee above referred to, accepting its recommendations and acting upon them and instructing distributors not to bring the book into the County of Middlesex for sale and distribution, is not only illegal and void but has resulted and will result in irreparable injury to the plaintiff."

Plaintiff demands judgment that: (1) the May 10, 1950 letter of instruction to the Union County News Dealers Supply Company, and any similar letters to distributors, be declared void and of no effect; (2) the defendant be ordered to notify the Union County company, or any other distributor to whom he may have written, that his instructions are illegal and of no effect; (3) the citizens committee has no right to use the method it has been employing to prevent publishers and distributors from offering books for sale; (4) The Chinese Room may be distributed and sold in Middlesex County, without interference by the prosecutor's office; (5) defendant's letters and instructions constitute an extra-legal means for preventing the circulation of The

Chinese Room , and have resulted and will result in irreparable injury to plaintiff's business; and finally, (6) defendant's action in using his office to send letters to distributors telling them not to distribute and sell The Chinese Room in Middlesex County is an unlawful exercise of the powers of his office.

Defendant's answer denies the significant allegations of the complaint and sets up two separate defenses: (1) a denial that compulsion or threats were used at any time upon anyone having to do with the publication and sale of The Chinese Room , and (2) the book is "obscene and indecent and contains words indecent and lascivious in context within the meaning of R.S. 2:140-2 and R.S. 2:140-3," so that plaintiff comes into court with unclean hands.

The present Prosecutor of Middlesex County, Alex Eber, has been substituted in the place and stead of the original defendant.

The issues as molded by the pretrial order were: (1) Does the defendant prosecutor have the authority to ban the sale of books in his county as lewd and lascivious by order or letter issued by him; (2) does he have such authority as to the sale of The Chinese Room; (3) did he in fact issue an order banning the sale of The Chinese Room in Middlesex County; (4) were the letters signed by him in effect a ban on the sale of that book; (5) should an injunction issue restraining the prosecutor from further notifying distributors of the book that it should not be sold in Middlesex County; (6) should a mandatory injunction issue directing the prosecutor to recall the letters he issued; and (7) was his action in issuing the letters illegal and beyond the scope of his authority?

Defendant prosecutor argues that his letters cannot be construed as an order banning the sale of The Chinese Room in his county, or that they were in fact a ban on such sale. The contention is naive. His letter of May 5, 1950, for example, was taken by the distributors as a plain mandate to remove the books listed as "objectionable." And the May 10 letter to Koch, voicing "appreciation" for his "cooperation," was interpreted as an order to take the books

out of circulation under threat of prosecution. True, as the prosecutor says by way of defense, there was no actual compulsion or threat in words, but such was the very real impact and effect of his letters. They were enough to bring about the result he and his committee desired. They did what they were intended to do. The distributors were quick to obey, for they had plenty of other books to sell and were anxious lest the pattern of Middlesex County's action spread to other counties and markets. The plain fact of the matter is that not a single copy of The Chinese Room was sold in Middlesex County after the prosecutor's letters were received.

It is next argued that the court of equity will not interfere with the enforcement of criminal law. Dell Publishing Co. v. Beggans , 110 N.J. Eq. 72 (Ch. 1932), is the only case cited in support of the proposition. The argument is vulnerable in two respects: as stated it is too broad, and further, the application here is not to enjoin criminal proceedings but to enjoin the prosecutor, acting under color of authority, from violating property rights claimed by plaintiffs. Brex v. Smith , 104 N.J. Eq. 386 (Ch. 1929); Ruty v. Huelsenbeck , 109 N.J. Eq. 273 (Ch. 1931).

The language of Vice Chancellor Berry in S. & R. Amusement Corp. v. Quinn , 136 N.J. Eq. 420, 423-424 (Ch. 1944) is appropriate:

"While ordinarily equity will not enjoin criminal prosecutions, there is an exception to the rule where property rights are involved, and it is claimed seriously and in good faith that the act of the prosecutor is not authorized by law. * * * Here, however, no criminal prosecution is pending, nor has any restraint against the due processes of the law been imposed or sought. It will not be presumed that the complainant in the conduct of his business is guilty of a crime. The presumption is to the contrary.

The question of whether equity has power to enjoin the arbitrary action of municipal officials in interfering with

persons in the conduct of their business was considered by Vice-Chancellor (now Judge) Haneman in Higgins v. Krogman , 140 N.J. Eq. 518 (Ch. 1947). He said (at pages 520-521):

"The power of the Court of Chancery to restrain illegal interference with legitimate business by peace officers under the guise of enforcing the law is indisputable. See Iannella v. Piscataway Township , 138 N.J. Eq. 598; 49 A. 2 d 491. Cases in which this question has arisen are generally concerned with an alleged violation of the criminal law and an attempt to prevent such violation by methods other than those which might be classed as due process. An examination of these cases discloses that although the Court of Chancery will ordinarily not interfere with the enforcement of the criminal law of this state, this court will enjoin interference with the conduct of business by physical force upon the mere claim that offenses against the criminal law are being conducted during the operation of such business, particularly where the law-enforcing officers fail or refuse to properly arrest and charge the alleged violators in accordance with the established law. [citing many cases]

There is ample authority for the proposition that valuable property rights will be protected by injunction from damage or destruction, threatened or resulting, from the arbitrary acts ...

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