Reed v. Littleton

• Decision Date: 13 July 1937
• Citation: 9 N.E.2d 814,275 N.Y. 150
• Parties: REED v. LITTLETON, Dist. Atty., et al.
• Court: New York Court of Appeals Court of Appeals

275 N.Y. 150

9 N.E.2d 814

REED

v.LITTLETON, Dist. Atty., et al.

Court of Appeals of New York.

July 13, 1937.

Action for a declaratory judgment by Percy Campbell Reed against Martin W. Littleton, as District Attorney of Nassau County, and others. From a judgment of the Appellate Division, entered on the 15th day of January, 1937 (249 App.Div. 310, 292 N.Y.S. 363), reversing on the law a declaratory judgment of the Supreme Court, Nassau County, made the 27th day of June, 1936, and entered in the office of the clerk of the county of Nassau on the 1st day of July, 1936 (159 Misc. 853, 289 N.Y.S. 798), and dismissing the complaint, plaintiff appeals.

Affirmed. Appeal from Supreme Court, Appellate Division, Second department.

Edwin M. Borchard, of New York City, for appellant.

Philip Huntington, of Glen Cove, for respondent.

CRANE, Chief Judge.

For several years plaintiff has been the proprietor and operator of a greyhound racing track at the Mineola Fair Grounds located in the village of Garden City. In connection therewith he operates a complicated system of selling and repurchasing so-called ‘options' for the purchase of dogs participating in the races. The defendants contend that the sole purpose and intent of plaintiff in operating this system is to enable the general public attending the race meetings to gamble on the result of the races, in violation of section 986 of the Penal Law (Consol.Laws, c. 40). Plaintiff maintains that his operations are carried on in good faith for the purpose of acquiring for himself a large stable of racing greyhounds, and that it does not constitute gambling in violation of the statute. The district attorney commenced criminal proceedings against him in the police court, and this plaintiff was acquitted of the charge. The district attorney has served notice of his intention to institute further prosecutions, and plaintiff seeks from the court a declaratory judgment that the court determine that the method of purchase and sale of racing greyhounds and the sale of options thereon is not in violation of any of the sections of article 88 of the Penal Law (section 970 et seq.). The Appellate Division has held that an action for a declaratory judgment was not available to plaintiff under the facts here disclosed. From that determination plaintiff appeals.

Section 473 of the Civil Practice Act provides: ‘The supreme court shall have power in any action or proceeding to declare rights and other legal relations on request for such declaration whether or not further relief is or could be claimed, and such declaration shall have the force of a final judgment. Such provisions shall be made by rules as may be necessary and proper to carry into effect the provisions of this section.’

In International Mutoscope Reel Co. v. Valentine, 271 N.Y. 622, 623, 3 N.E.(2d) 453, the owners of machines known as ‘crane,’ ‘claw,’ and ‘digger’ type brought action against the police commissioner to have it determined that such machines were not violative of sections 977, 982, and 1376 of the Penal Law, and were not susceptible of being used for gambling, lottery, or any purpose in violation of the Penal Law. This court held that ‘the case is not one for a declaratory judgment.’ See, also, Buffalo Gravel Corp. v. Moore, 201 App.Div. 242,194 N.Y.S. 255, affirmed, 234 N.Y. 542, 138 N.E. 439.

The court of equity has at times been called upon to enjoin the enforcement of a criminal prosecution. The rule has been firmly established that it will not ordinarily intervene to enjoin the enforcement of the law by the prosecuting officials (Davis v. American Society for Prevention of Cruelty to Animals, 75 N.Y. 362;Delaney v. Flood, 183 N.Y. 323, 76 N.E. 209, 2 L.R.A.(N.S.) 678, 111 Am.St.Rep. 759, 5 Ann.Cas. 480) unless under proper circumstances there would be irreparable injury, and the sole question involved is one of law (Mills Novelty Co. v. Sunderman, 266 N.Y. 32, 193 N.E. 541) where a clear legal right to the relief is established (Triangle Mint Corp. v. Mulrooney, 257 N.Y. 200, 177 N.E. 420). One reason for such a rule is the desire to preserve the separation of governmental powers. Cf. Truax v. Corrigan, 257 U.S. 312, dis. op., Brandeis, J., at page 374, 42 S.Ct. 124, 137, 66 L.Ed. 254, 27 A.L. R. 375.

Where administrative officials act under a statute which infringes the Constitution, or under rules or regulations that are invalid, a person may have the right to petition the court to determine the jural relations, and to have the invalidity of the statute, rule, or regulation declared. Here there is no question of invalidity of the statute. The findings of the trial court set forth the acts and operations of plaintiff as shown by the evidence in this proceeding. The court has adjudged that ‘the business conducted by him at the Mineola Fair Grounds * * * and in selling and repurchasing options on dogs is a legal and valid business and is not in violation of the gambling laws of the State of New York, nor in violation of section 986 of the Penal Laws of the State of New York.’ Plaintiff, in an effort to show the necessity for such a judgment, states in his brief that such a judgment is binding upon the District Attorney: ‘It is not conceivable that he would undertake to disregard it. But if he did, it would be res judicata and a complete defense to any future prosecution on the same facts.’ But perhaps at a later date the District Attorney may find further facts which in his opinion give a different color to the whole transaction. Additional evidence may be procured by the prosecuting authorities which sheds a new light upon the transactions carried on by the appellant. Will the civil courts impede the administration of justice by placing a restraint upon the administrative officials who threaten to act under a statute concededly valid? Counsel even stated in argument that if the equity court should determine that the scheme was gambling the judgment would be binding on the defendant in a criminal court.

Appellant urges many cases as authority for the relief asked for in his complaint. None of them goes so far as appellant would have this court go in the present instance. In the case at bar, the criminal statutes are concededly valid, and there is no question of any right to any license or permission, nor of any right to proceed without a license. Many of the cases cited involved the constitutionality of statutes or rules and regulations. Sage-Allen Co. v. Wheeler, 119 Conn. 667, 179 A. 195, 98 A.L.R. 897, was an action for judgment to the effect that certain rules of the State Board of Examiners in Optometry were illegal and void and for an injunction restraining them from enforcing said rules. Erwin Billiard Parlor v. Buckner, 156 Tenn. 278, 279, 300 S.W. 565, 566, was a bill filed ‘for a decree declaring unconstitutional chapter 104 of the Private Acts of 1925, as amended by chapter 290 of the Private Acts of 1925, and for a decree of injunction restraining the defendants from proceeding in the criminal court against complainants for violations of said Private Acts.’ In Utah State Fair Ass'n v. Green, 68 Utah, 251, 258, 249 P. 1016, 1017: ‘The purpose of the action [was] to test the constitutionality of chapter 77.’ Little v. Smith, 124 Kan. 237, 257 P. 959, 57 A.L.R. 100 involved an action to obtain the interpretation of a statute ‘and particularly a declaration and determination as to the validity of section 18 of that act.’ In Dyson v. Attorney-General, [1911] 1 K. B. 410: The ‘action was brought against the Attorney-General to test the validity of the notices issued by the Commissioners of Inland Revenue under the Finance Act.’ Similarly Burghes v. Attorney-General, [1911] 2 Ch. 139, 140, involved an action ‘against the Attorney-General for a declaration that a certain form issued by the...