The complaint in this action seeks an injunction to restrain the Attorney General from requesting the New Jersey Bell Telephone Company to discontinue telephone service to plaintiffs. The company has agreed to comply with any order of the Attorney General issued pursuant to the order of this court, and therefore the complaint has been dismissed as to it.
This matter initially came before the court on order to show cause for a preliminary injunction. A preliminary injunction was granted which, upon appeal, was reversed by the Supreme Court. Lopez v. New Jersey Bell Telephone Co., 51 N.J. 362 (1968).
The basis of the reversal of the order for a preliminary injunction was that this court abused its discretion. The Supreme Court concluded its opinion:
"It is evident to us that, on the entire record before the trial court, the plaintiffs' application should have been denied and that the grant of preliminary injunctive relief was beyond discretionary bounds. Cf. General Electric Co. v. Gem Vacuum Stores, 36 N.J. Super. 234, 236 (App. Div. 1955)." (at p. 374)
The reference to General Electric Co. v. Gem Vacuum Stores, 36 N.J. Super. 234 (App. Div. 1955), clearly shows that the Supreme Court was dealing with the exact issue that was before it, namely, the propriety of the issuance of a preliminary injunction.
The Supreme Court equated the discontinuance of telephone service to the seizure of property used in connection with bookmaking. It reasoned that since there was a valid search warrant, the authorities could either have seized the telephones or could have requested the discontinuance of the telephone service. It recognized that if there had been a physical seizure of the telephones, plaintiffs would have been entitled to a judicial review under R.R. 3:2 A -6. Although the Supreme Court suggested that plaintiffs could have applied to the Law Division under R.R. 3:2 A -6 for the return of service, it did not disapprove of the procedure followed by them.
"In the case at hand the enforcement authorities satisfied the suggested safeguards in Sokol. [ Sokol v. Public Utilities Commission, 65 Cal. 2 d 247, 53 Cal. Rptr. 673, 418 P. 2 d 265 (1966).] They sought and obtained search warrants on presentations of probable cause. The warrants authorized them to seize all property at the plaintiffs' premises used in connection with bookmaking and lottery. If property was seized illegally, the plaintiffs had a simple and effective mode of obtaining its return pursuant to our rules relating to search warrants. R.R. 3:2A-1 et seq. Under the statutes, the authorities could have physically seized the telephones along with other property seized by them. See N.J.S. 2A:152-6, N.J.S.A. They chose the alternative of having the service discontinued, apparently in order to avoid doing unnecessary harm to the Telephone Company's equipment.
If the telephones had been physically seized, the plaintiffs presumably would have sought review of that action by motion in the Law
Division pursuant to the cited rules. R.R. 3:2A-6. We incline to the belief that when the service was discontinued following the seizures at their premises, they could have sought similar review in the Law Division. Instead they sought and obtained review and relief in the Chancery Division. Be that as it may, they suffered no legal prejudice by virtue of the fact that the authorities followed the course of discontinuance rather than physical ...