This is a contempt proceeding against Guy W. Calissi, Bergen County Prosecutor, for allegedly violating the November 13, 1959 order of Judge Scherer granting an ad interim restraint against enforcement of L. 1959, c. 119, N.J.S.A. 2 A:171-5.8 et seq. , the so-called Sunday Closing Law. The contempt proceeding came before the court on notice in the then pending action. Preliminarily, the court informed the defendant, who appeared pro se , of the essential facts constituting the contempt. The defendant agreed that the contempt charged was criminal in nature and entered a plea of not guilty. By consent the matter was heard by the court without a jury. Counsel for the plaintiff in the action acted as prosecutor of the proceedings. R.R. 4:87-2.
It is not disputed that the defendant in this proceeding did in fact cause arrests to be made for violations of the said chapter 119 subsequent to the issuance of the restraint by Judge Scherer of which he concedes he had actual knowledge. His position is that the restraint did not apply to him because he was not made a party to the action. Further, that it was his duty as prosecutor to enforce the law. The court notes that the majority of the arrests were not made against the plaintiff, as contended by counsel for the plaintiff, but rather against a separate corporate entity, although this, of course, has no bearing on the decision.
Is the defendant in contempt?
The determination of this question turns on the nature and effect of the restraint ordered by Judge Scherer. Plaintiff's counsel asserts that the order had the effect of a common law supersedeas and would, in effect, lift the statute off the books so that the order would be binding not only on the parties to the action, but also on all those who had knowledge of the order.
Counsel for plaintiff predicates this position, as he states in his memorandum of law:
"Under the old certiorari practice, which was the traditional procedure for reviewing the validity of statutes, ordinances, regulations,
and the like, the mere issuance of the writ operated as a stay. Anyone having notice of the issuance of the writ was bound thereby."
The dictum of Justice Jacobs, then judge of the Appellate Division, supports plaintiff's contention that a supersedeas under R.R. 4:88-5 is "governed by prerogative writ precedents." Haines v. Burlington County Bridge Commission , 1 N.J. Super. 163, 173-174 (App. Div. 1949). In a proper case a stay might be ordered in an action in lieu of prerogative writs which would have the effect of the former supersedeas; however, this is only one of the various types of relief that a court may render in such an action.
"Under the new rules the filing of a complaint in lieu of prerogative writ carries with it no stay, but provision is made in Rule 3:81-5 for the granting, on motion, of ' ad interim relief by way of stay, restraint or otherwise as justice may require, which relief may be granted by the court with or without terms.' The power granted by this rule goes far beyond the mere power to grant a stay, such as was incident to a writ of certiorari , and among other things empowers the court to command or restrain the doing of any specific act. When the court enters an order under this rule which commands or restrains a specified act, it enters an injunction as that word is used in our rules." Rinaldi v. Mongiello , 4 N.J. Super. 7, 10-11 (App. Div. 1949) (reference is made to rule number prior to 1953 revision, now R.R. 4:88-5).
It is, therefore, clear that an injunction may be issued in an action in lieu of prerogative writ under R.R. 4:88-5, and if so issued, its scope would be limited by our rules of court pertaining to injunctions, more particularly R.R. 4:67-5 dealing with the scope of an injunction or restraining order. Cf. Rinaldi v. Mongiello , 4 N.J. Super. 7 (App. Div. 1949), where after finding the restraint issued under R.R. 4:88-5 was an injunction, the court allowed an interlocutory appeal.
Was Judge Scherer's order in the nature of a supersedeas as plaintiff contends, or was it an injunction subject to the limitations of R.R. 4:67-5? Although the forms of action have been changed by the new rules, we must examine the former ...