Ruty v. Huelsenbeck

• Decision Date: 07 November 1931
• Parties: RUTY et al. v. HUELSENBECK, County Sheriff.
• Court: New Jersey Court of Chancery

156 A. 922

RUTY et al.

v. HUELSENBECK, County Sheriff.

Court of Chancery of New Jersey.

Nov. 7, 1931.

Syllabus by the Court.

1. Notwithstanding the general rule that a court of equity will not interfere in the enforcement of the criminal law, the court will, at the suit of the owner of a business, in a proper case enjoin the sheriff or other police authorities from interfering with the conduct of the business by physical force, such as raids and continuous trespasses, upon the mere claim that offenses against the criminal law are being committed during the operation of the business.

2. Such an injunction will not interfere with the orderly processes of the criminal law, and will not protect complainants or others from being made to respond to the criminal law, but it will protect complainants in the operation of the business against interference by the sheriff or other police authorities in such a way as to physically prevent the operation of the business or continuous trespasses which would result in its closing.

3. Affidavits considered and temporary injunction granted, enjoining the sheriff and his deputies from interfering with the conduct of a "Marathon Dance" by raids and other trespasses.

4. Where the sheriff threatens to interfere with the operation of a business by extrajudicial methods, such as a raid, an injunction will issue, if there be doubt as to the illegality of the operation of the business.

Suit by George Ruty and another against Harry L. Huelsenbeck, Sheriff of Essex County. On application for a temporary injunction.

Temporary injunction granted.

Osborne, Cornish & Scheck, of Newark, for complainants.

Jules E. Tepper, of Newark, for defendant.

CHURCH, Vice Chancellor.

The bill is filed by complainants who leased a dance hall from Dreamland Recreation Club, Inc., for a period of ten weeks at a rental of $6,000, which sum has been paid; Dreamland Recreation Club, Inc., holding a license from the proper authorities of the city of Newark, dated June 30, 1931, permitting the holding of dances in the dance hall, which license does not expire until May 23, 1932. The purpose of complainants in making the lease was to hold what is known as a Marathon dance. The word "Marathon" expresses the nature of the dance. The dance started on October 22, 1931.

The charge of the bill, summarized, is: The sheriff of Essex county had publicly announced on October 29, 1931, that he proposed, with his deputies, to "raid" the dance hall and to arrest the dancers and others interested in the dance and to stop the dance. The announcement of the sheriff had been preceded by a demand for the payment by complainants of $5,000 ostensibly as consideration for the sheriff not intervening. There was no illegality in the conduct of the dance and no violation of law. The dance had been continuously attended by police officers of the city of Newark, and no cause had been found for interference. The sheriff himself had attended the dance on October 24, 1931, and had stated that he found nothing wrong with the performance. The sheriff proposed to "raid" the dance hall and make the arrests, not because of any idea upon his part that the law was being violated, but to compel the payment of $5,000. If the sheriff were permitted to interfere with the dance in the manner proposed by him, the entire investment of complainants would be destroyed. An injunction was prayed against the proposed claimed illegal interference by the sheriff.

Upon the presentation of the bill to the court early on the morning of October 30th, the court declined to act without notice being sent to the sheriff, and counsel for complainants were advised to immediately give notice to the sheriff that the court would hear him as to whether an order should go with temporary restraint. While the court and counsel for complainants were waiting for the sheriff, the sheriff proceeded with his deputies to the dance hall and did in fact "raid" it and made several arrests and stopped the dance. While the sheriff was engaged in his "raid," the court's order to show cause which contained temporary restraint was served upon the sheriff, the court having granted the order to show cause with temporary restraint upon being advised that the sheriff, instead of appearing before the court as he had been invited, proceeded to make the "raid," with knowledge that counsel for complainants at the moment were applying to the court for an order to show cause with temporary restraint, and both court and counsel were waiting for the sheriff to be heard.

In the affidavits presented, the sheriff denies that he had notice that the court was waiting for him. I do not believe that denial, and I think the sheriff did have notice and acted as he did to anticipate the effect of the order of the court, but that matter does not need to be determined at this time. It may await further proceedings in this cause if such proceedings be deemed necessary.

1. The bill states a cause of action cognizable in this court, and the affidavits presented for complainants support the bill.

The sheriff urges that this court will not interfere with the enforcement of the criminal law. The statement is too broad, as indicated by Brex v. Smith, 104 N. J. Eq. 386, 146 A. 34, and Public Welfare Pictures Corp. v. Brennan, 100 N. J. Eq. 132, 134 A. 868, in which cases the matter was fully considered. To the cases mentioned in Brex v. Smith may be added 4 Pomeroy's Eq. (2d Ed.) p. 3221, § 1345; p. 4049, § 1743; Philadelphia Co. v. Stimson, 223 U. S. 605, 638, 32 S. Ct. 340, 56 L. Ed. 570; La Chapelle v. Bubb (C. C.) 69 P. 481; Burns v. McAdoo, 113 App. Div. 165, 99 N. Y. S. 51; Hagan v. McAdoo, 113 App. Div. 506, 99 N. Y. S. 255; Fairmont Athletic Club of Greater New York v. Bingham, 61 Misc. Rep. 419, 113 N. Y. S. 905; Cullen v. Bourke (Sup.) 93 N. Y. S. 1085; McGorie v. McAdoo, 113 App. Div. 271, 99 N. Y. S. 47; Manhattan Iron Works v. French, 12 Abb. N. C. (N. Y.) 446; Gaither, Police Commissioner v. Cate (Court of Appeals) 156 Md. 254, 144 A. 239 at page 240; Hall v. Dunn, 52 Or. 475, 97 P. 811, 25 L. R. A. (N. S.) 193; City of Louisville v. Lougher, 209 Ky. 299, 272 S. W. 748.

And upon the general principle may also be cited Bayonne v. Borough of North Arlington, 77 N. J. Eq. 166 at page 171, 75 A. 558, 140 Am. St. Rep. 547; Inhabitants of Greenville v. Seymour, 22 N. J. Eq. 458, headnote; American School of Magnetic Healing v. McAnnulty, 187 U. S. 94, 23 S. Ct. 33, 47 L, Ed. 90; State ex rel. Ladd v. District Court (Supreme Court) 17 N. D. 285, 115 N. W. 675, 15 L. R. A. (N. S.) 331; New Yorker StaatsZeitung v. Nolan, 89 N. J. Eq. 387, 105 A. 72.

The sheriff relies on Trenton Theatre Building Co. v. Firth, Sheriff of Mercer County, 93 N. J. Eq. 27, 115 A. 340; Rosenberg v. Arrowsmith, 82 N. J. Eq. 570, 89 A. 524, and Green v. Piper, 80 N. J. Eq. 288, 84 A. 194. Those cases have no application here. In both Rosenberg v. Arrowsmith and Trenton Theatre Building Co. v. Firth it appeared upon the face of the record that the complainants were deliberately violating the law, to wit, the provisions of section 1 of an Act for Suppressing Vice and Immorality, 4 Comp. Stat, of New Jersey 1910, p. 5712, which has to do with business operations and with diversions on Sunday, and, by the express terms of that statute, the sheriff or any constable or any other citizen is permitted "to stop every person so offending, and to detain him or her till the next day, to be dealt with according to law," as pointed out by the Supreme Court in Hogan v. Firth, 115 A. 204.

No statute and no case had been brought to my attention, nor has the research which I have been able to make in the limited time at my disposal led me to one, which holds that the sheriff or any other police officer may enforce the criminal laws by physically preventing the conducting of business by means either of actual force or continuous "raids." I find no suggestion of any such power residing in the sheriffs at common law as stated by Blackstone (Cooley's 4th Ed.) page *343, nor in the statement in 35 Cyc. title "Sheriffs and Constables," p. 1532, under the title "Particular Powers and Duties" of sheriffs. This court has interfered to prevent police authorities from preventing the presentation of plays which in the eyes of the police authorities were lewd, and it has acted in other cases not reported to prevent police authorities, under the guise of the enforcement of the criminal law, from actively interfering with the conduct of a business.

Under the bill and answer interposed by the sheriff and the affidavits in this case, the matter is one of discretion in the court, and whether a temporary injunction should go or be refused requires a consideration of the facts and circumstances. It would be intolerable if the operation of any business might be interfered with because some police officer came to the conclusion that the business was being operated in violation of the law. Such a condition would result in a government of men, not of law.

2....