Campbell v. Medalie
| Decision Date | 18 June 1934 |
| Docket Number | No. 366.,366. |
| Citation | 71 F.2d 671 |
| Parties | CAMPBELL v. MEDALIE. |
| Court | U.S. Court of Appeals — Second Circuit |
Frederick B. Campbell, of New York City (Paul C. Whipp and Lounsbury D. Bates, both of New York City, of counsel), for appellant.
Martin Conboy, U. S. Atty., of New York City (Francis H. Horan and Edward J. Ennis, Asst. U. S. Attys., all of New York City, of counsel), for appellee.
Before MANTON, L. HAND, and SWAN, Circuit Judges.
It is attempted by this suit to enjoin the appellee from continuing to prosecute the appellant under the first count of an indictment, returned on October 5, 1933, for violation of the Act of March 9, 1933, c. 1 (48 Stat. 1), and violation of executive order of the President of August 28, 1933 (No. 6260 12 USCA § 95 note). While the appellant was prosecuting a suit to enjoin the Chase National Bank from turning over gold bullion to the government authorities, a cause decided by us this day 71 F.(2d) 669, he was indicted September 28, 1933, by the grand jury on two counts. On October 5 a superseding indictment was returned. It charges a violation of the Act of March 9, 1933, for failure to file a return. By that act the President, having declared a national emergency to exist, may "investigate, regulate, or prohibit, under such rules and regulations as he may prescribe * * * hoarding, melting, or earmarking of gold or silver coin or bullion * * * by any person within the United States; * * * and the President may require any person engaged in any transaction referred to in this subdivision to furnish under oath, complete information relative thereto. * * *" 50 USCA appendix § 5. For a willful violation of this statute, fine and imprisonment or both may be imposed. The Executive Order of April 5, 1933 (No. 6102 12 USCA § 248 note) declared a national emergency, and prohibited the "hoarding of gold coin, gold bullion * * * within the continental United States," and prescribed regulations for carrying out the purposes of the order. The Executive Order of August 28, 1933 (No. 6260 12 USCA 95 note) declared "that a period of national emergency exists," and prescribed provisions for the regulation of the hoarding of gold bullion by any person within the United States. Section 3 of the order required a return to be made under oath to the Secretary of the Treasury by every person having gold bullion and a filing of the return with the collector of internal revenue in the district of residence. The returns therein specified were required within fifteen days, but the time was extended until September 18, 1933. Section 10 provided for fine and imprisonment for willful violation of the executive order, and by this latter executive order, the prior executive order of April 5 was revoked. It is conceded that appellant did not comply with the executive order. On September 16, 1933, he demanded of the Chase National Bank the delivery and return to him of the bars of gold, which demand was refused. September 26, 1933, he filed a bill against the bank praying for a decree that the bank be ordered and directed to deliver to him his gold bullion.
A bill in equity to enjoin the prosecution of this indictment will not lie. This is but a single prosecution, and no other is threatened. If appellant, a lawyer, be convicted, he may be disbarred, but that is insufficient reason for a court of equity to interfere with the normal prosecution of a criminal indictment. If the indictment be bad or the statute, for any reason suggested by the appellant, be unconstitutional, his remedy at law is still adequate and sufficient. The usual purpose of a suit in equity is the protection of rights of property. An injunction will be granted only where the facts disclose the likelihood of immediate and irreparable damage to property. Cline v. Frink Dairy Co., 274 U. S. 445, 47 S. Ct. 681, 71 L. Ed. 1146; Tyson v. Banton, 273 U. S. 418, 47 S. Ct. 426, 71 L. Ed. 718, 58 A. L. R. 1236; Terrace v. Thompson, 263 U. S. 197, 44 S. Ct. 15, 68 L. Ed. 255; Ex parte Young, 209 U. S. 123, 28 S. Ct. 441, 52 L. Ed. 714, 13 L. R. A. (N. S.) 932, 14 Ann. Cas. 764.
The general rule has often been stated that a court of equity is without jurisdiction to restrain criminal proceedings. The exception to this rule exists when the...
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...Hoffman Brewing Co. v. McElligott, 2 Cir., 1919, 259 F. 525; C. A. Weed & Co. v. Lockwood, 2 Cir., 1920, 266 F. 785; Campbell v. Medalie, 2 Cir., 1934, 71 F.2d 671; cf. Land v. Dollar, 1947, 330 U.S. 731, 67 S.Ct. 1009, 91 L. Ed. 1209. The second defense, that equitable jurisdiction may not......
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