Wortendyke on plaintiffs' application for a temporary restraint. The judge at that time stated:
'* * * I find no evidence in the affidavits before me, or in the nature of the proceedings as disclosed in the oral arguments, that the civil rights of these plaintiffs have been infringed under color of the statutes of New Jersey * * *. Any other criminal offender under any other statutory offense in New Jersey would be subject to the criminal procedure prescribed by the New Jersey law and could not expect to complain to this Court and seek from this Court intervention in the regular handling of the enforcement of the State's criminal laws.'
From all of the above, what happened was that the county and municipal law enforcement agencies of Bergen and Essex Counties, proceeding properly under the present New Jersey obscenity statute (the successor to similar legislation of that state that dates back almost a hundred years), arrested several booksellers who offered for sale copies of the book 'Tropic of Cancer' and seized copies of the book. The foundation of those actions was the reading of the book by the Prosecutor of Bergen County and his opinion therefrom that the book is obscene. The circumstance that after that he learned of the Besig decision is of no particular importance.
If the state prosecution against the book and its sellers was or is arbitrary, S. & R. Amusement Corp. v. Quinn, 136 N.J.Eq. 420, 421, 38 A.2d 571 (1944), or unlawful or in excess of the authority of the municipal representatives, Higgins v. Krogman, 140 N.J.Eq. 518, 55 A.2d 175 (1947), or is illegally interfering with legitimate business by peace officers, under the guise of enforcing the law, the power of the New Jersey courts to restrain it is indisputable. Bantam Books, Inc. v. Melko, 25 N.J.Super. 292, 299, 96 A.2d 47 (Ch.Div.1953), modified, 14 N.J. 524, 103 A.2d 256 (1954), quoting Higgins v. Krogman, supra, with approval. The other side of the medal is of course that 'That court of chancery has no power to enjoin police officers from enforcing the criminal law of the state or from making an arrest or taking other lawful action under the sanction of a criminal statute.' Dell Publishing Co. v. Beggans, 110 N.J.Eq. 72, 74, 158 A.765, 766 (1932).
Complete reliance is placed by plaintiffs on the proposition that defendants, though they performed their duty under the New Jersey law and in accordance with it, nevertheless violated plaintiffs' civil rights because the law itself is unconstitutional. Of the two reasons advanced for this charge, the suggestion, in the face of the state Supreme Court holding to the contrary, that N.J.S. 2A:115-2 does not include 'intent' is frivolous and the other, that it is too vague, is just about in the same category.
In the circumstances we are squarely faced with the question of whether we should abstain from passing upon the merits of this litigation, leaving that decision to the New Jersey courts. The opinion of Mr. Chief Justice Stone for the Supreme Court in Douglas v. City of Jeannette, 319 U.S. 157, 63 S. Ct. 877, 87 L. Ed. 1324 (1943), is controlling on this problem. The pertinent law as there laid down cannot be misinterpreted. The Court said at pp. 163-164, 63 S. Ct. at pp. 880-881:
'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. Davis & Farnum Mfg. Co. v. Los Angeles, 189 U.S. 207 (23 S. Ct. 498, 47 L. Ed. 778); Fenner v. Boykin, 271 U.S. 240 (46 S. Ct. 492, 70 L. Ed. 927). 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.' Spielman Motor Co. v. Dodge, 295 U.S. 89, 95 (55 S. Ct. 678, 79 L. Ed. 1322), and cases cited; Beal v. Missouri Pacific R. Corp., 312 U.S. 45, 49 (61 S. Ct. 418, 85 L. Ed. 577), and cases cited; Watson v. Buck, 313 U.S. 387 (61 S. Ct. 962, 85 L. Ed. 1416); Williams v. Miller, 317 U.S. 599 (63 S. Ct. 258, 87 L. Ed. 489).
'Nor is it enough to justify the exercise of the equity jurisdiction in the circumstances of this case that there are numerous members of a class threatened with prosecution for violation of the ordinance.'
Cf. Fass v. Roos, 184 F.Supp. 353 (D.C.N.J.1960) and cases there cited. See also Fenner v. Boykin, 271 U.S. 240, 46 S. Ct. 492, 70 L. Ed. 927 (1925); Cline v. Frink Dairy Company, 274 U.S. 445, 452, 47 S. Ct. 681, 71 L. Ed. 1146 (1926).
There has been no showing to us of a danger of irreparable injury 'both great and immediate'. There has been no showing to us that the courts of New Jersey will deal with the ordinary question of its type which is raised here in any way other than fairly, wisely and expeditiously. It is urged as a reason for this court to dispose of the fundamental issue that the State court is holding its hand pending the determination of this court. The New Jersey state courts are, as always, most considerate and courteous. Our determination is that this case is one for decision on the merits by the State courts. As Chief Justice Stone said in Jeannette, 319 U.S. p. 164, 63 S. Ct. p. 881:
'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.'
The amended bill of complaint will be dismissed.
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