Brex v. Smith

• Decision Date: 25 April 1929
• Citation: 146 A. 34
• Parties: BREX, Deputy Chief of Police, et al. v. SMITH, Prosecutor of Pleas, et al.
• Court: New Jersey Court of Chancery

146 A. 34

BREX, Deputy Chief of Police, et al.

v. SMITH, Prosecutor of Pleas, et al.

Court of Chancery of New Jersey.

April 25, 1929.

If prosecuting attorney has evidence before him that person connected with police department has improperly collected money, the proper course should be to present facts to grand jury, instead of making demand for submission to him for examination of bank accounts of all members of police department.

Suit by Frank E. Brex, Deputy Chief of the Police Department of the City of Newark, and others, against Joseph L. Smith, Prosecutor of the Pleas of Essex County, and others, for an injunction. Decree for complainants, continuing injunction, advised.

Merritt Lane, of Newark, for complainants.

Joseph L. Smith, of Newark, for defendants.

CHURCH, Vice Chancellor. This application is in effect a demand by the prosecutor that all the bank accounts of all the members of the Newark police department, and, in some instances, those of their wives, be submitted to him for examination. The only reason given is "to assist him in some investigation he is making." Presumably, he thinks there may have been in some instances improper reception of money.

The prosecutor contends that a court of equity has no jurisdiction, because it cannot enjoin a public official, stating that this court cannot stay or interfere with a criminal proceeding. In the first place, this statement is too broad, for the courts have held that under certain circumstances this may be done in criminal cases. In Ex parte Young, 209 U. S. 123, 28 S. Ct. 441, 52 L Ed. 715, 13 L. R. A. (N. S.) 932, 14 Ann. Cas. 764 (to cite but one), the United States Supreme Court said, after citing numerous cases: "These cases show that a court of equity is not always precluded from granting an injunction to stay proceedings in criminal cases." In the second place, it has no bearing on the matter now before me, because the application is not to enjoin criminal proceedings, but to enjoin the prosecutor, acting under color of authority, from violating property rights claimed by the complainants.

The Court of Chancery will not interfere with public officials, unless they are acting without authority or property rights are involved. The rule is probably best expressed in the language of Chief Justice Ames in Greene v. Mumford, 5 R. I. 472, 73 Am. Dec. 79, quoted in People v. Canal Board of New York, 55 N. Y. 390, as appears on page 11 of the prosecutor's brief, as follows:

"Chief Justice Ames, in Greene v. Mumford, 5 R. I. 472 , states the rule by which courts of equity are governed in the exercise of jurisdiction over public officers, whether acting individually or as members of a public board or body organized according to law. He says: 'Certainly it is not the mere fact that a public officer is attempting to exercise a void authority which induces a court of equity to restrain him; but, notwithstanding he is a public officer, that he is about, by such exercise, to do an act which brings the case within its peculiar jurisdiction; for example, an act in breach of trust, in derogation of a contract which ought to be specifically performed, or an act of irreparable misclUef to the real estate of another.'

"And the New York court proceeds: 'A court of equity exercises its peculiar jurisdiction over public officers to control their action only to prevent a breach of trust affecting public franchises, or some illegal act under color or claim of right affecting injuriously the property rights of individuals.'"

And the general rule is stated in 32 Corpus Juris, title "Injunctions," § 383, as follows:

"Courts of equity have no power to restrain public officers by injunction from performing any official act which they are by law required to perform, or acts which are not in excess of the authority and discretion reposed in them. Nevertheless it is a rule of very general application that, where public officers are acting in breach of trust, or unlawfully or without authority or threatening to do so, and such acts will result in irreparable injury, or will require a multiplicity of suits at law, to obtain redress, they may be enjoined. This is, it has been held, not an action or suit against the state. This rule of course applies whether the acts complained of operate to the prejudice of the public, or to the injury of rights of individuals or corporations. Nevertheless, an injunction will not be granted where the injury is slight, or doubtful, or where on the facts the right to the injunction is doubtful, or where there is an adequate remedy at law against the officers who it is claimed are acting illegally or threatening to do so. And mere apprehension of unauthorized acts by public officers will not authorize the issuance of an injunction; and even where the right to an injunction might otherwise exist, the court may properly refuse it by reason of plaintiff's acquiescence in the acts complained of, or because of acts raising an estoppel against him."

In Royal Baking Powder Co. v. Emerson (C. C. A. 8th Cir.) 270 F. 429, a suit was brought in equity to enjoin the prosecutor of the pleas from proceeding against the Royal Baking Powder Company for violation of a state statute. The Circuit Court of Appeals said at page 432:

"It is true that the general rule is that courts of equity will not enjoin criminal prosecutions. The exception is that 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, equity can act. Hebe Co. v. Shaw, 248 U. S. 297, 39 Sup. Ct 125, 63 L. Ed. 255; Greene v. Louisville, etc., R. R. Co., 244 U. S. 499, 506, 507, 37 Sup. Ct. 673, 61 L. Ed. 1280, Ann. Cas. 1917E, 88; Truax v. Raich, 239 U. S. 33, 37, 36 Sup. Ct. 7, 60 L. Ed. 131, L. R. A. 1916D, 545, Ann. Cas. 1917B, 283; Western Union Telegraph Co. v. Andrews, 216 U. S. 165, 30 Sup. Ct. 286, 54 L. Ed. 430; Ex parte Young, 209 U. S. 123, 28 Sup. Ct. 441, 52 L. Ed. 714, 13 L. R. A. (N. S.) 932, 14 Ann. Cas. 764. This lack of legal authority may arise because the act is within an invalid statute, or because it is not authorized by a valid statute. In...