Wallack v. Society for Reformation of Juvenile Delinquents , 1876 N.Y. LEXIS 339 ( 1876 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The act, chapter 836 of the Laws of 1872, entitled "An act to regulate places of amusement in the city of New York," makes it unlawful to exhibit to the public in any place within the city, a dramatic or other exhibition mentioned in the act, until a license therefor shall have been obtained from the mayor, who is authorized to grant such license on the payment of a specified fee. The act directs that license fees received by the mayor under the act shall be paid over by him to the treasurer of the defendant, The Society for the Reformation of Juvenile Delinquents, in the city of New York, for the use of the society. (§§ 4, 5.)

The second section subjects a person offending against the act to a penalty for each unlicensed exhibition, and authorizes the defendant to sue for and recover the penalty for the use of the society, in the name of the people. The eighth section provides that, in case any person shall open, or advertise to open, any theater or other place for any exhibition for which, by the act, a license is required, without having first obtained it, it shall be lawful for the society to apply to the Supreme Court, or any justice thereof, for an injunction to restrain the opening thereof until he shall have complied with the requisitions of the act in obtaining a license, which injunction the section declares may be allowed upon a complaint in the name of the society, and in the same manner as injunctions are now usually allowed by the practice of the court.

The plaintiff is the manager of a theater in the city of New York, in which dramatic representations are given, for which, under the act, a license is required. He alleges in his complaint that the act of 1872 is unconstitutional, and that the defendant threatens to take legal proceedings under the eighth section to restrain him from prosecuting his business, and is about to institute them, unless he obtains the license required by the act. He avers that to sue him for penalties, and to shut up by legal proceedings his place of amusement for one or several times, would greatly and irremediably injure the good will and present profits of his business, and cause him great damage. The relief demanded is that a perpetual injunction issue, restraining the defendant from beginning or prosecuting against the defendant any suit for penalties given by the act, or from applying for an injunction under the eighth section. It is not expressly alleged that the plaintiff is conducting the theater without having obtained a license, but this is implied in the allegations made, and unless the fact is assumed, the plaintiff has no standing in court. The ground upon which the unconstitutionality of the act of 1872 is claimed, is not set out in the complaint, but was stated upon the argument to be, that the license fee required to be paid is, in substance, a tax imposed upon the persons engaged in giving the public exhibitions mentioned in the act, for the benefit of The Society for the Reformation of Juvenile Delinquents, a a private corporation, and for a private and not a public purpose, and that the law imposing it is an unauthorized exercise by the legislature of the power of taxation.

We are not at liberty to enter into the consideration of the general question of the validity of the legislation in question. We are precluded from doing so by the objection taken in limine by the defendant, and which is fatal to the plaintiff's action, that assuming the unconstitutionality of the act of 1872, the plaintiff is not, upon the facts stated in the complaint, entitled to an injunction. The general rule is that the court will not restrain a prosecution at law, when the question is the same at law and in equity. (Wolfe v. Burke, 56 N.Y., 118.) An exception exists where an injunction is necessary to protect a defendant from oppressive and vexatious litigation. But the court acts in such cases by granting an injunction only after the controverted right has been determined in favor of the defendant in a previous action. On this ground the Chancellor in West v.The Mayor (10 Paige, 539) dissolved a temporary injunction restraining the defendant from prosecuting suits against the complainant for violation of a corporation ordinance claimed to be invalid.

The unconstitutionality of the act of 1872 would be a perfect defence to a prosecution for the penalties given by it, and the question as to the constitutionality of the act has not been determined. It would, doubtless, be convenient for the plaintiff to have the judgment of the court upon the constitutionality of the act before subjecting himself to liability for accumulated penalties. But this is not a ground for equitable interference, and to make it a ground of jurisdiction in such cases would, in the general result, encourage, rather than restrain, litigation. Nor can the prosecution for the penalties be restrained in this action, on the ground that it is a suit in the nature of a bill of peace. The plaintiff does not bring it in behalf of himself and others claiming the same right. It does not appear that the validity of the law is questioned by any other person. The judgment in the action would only bind the parties to it. (Eldredge v. Hill, 2 J. Ch., 281.)

The plaintiff also asks for an injunction restraining the defendant from applying for an injunction under the eighth section of the act. The case of Wolfe v. Burke (supra) is a decisive answer to this part of the prayer of the complaint. The act expressly gives the right to the defendant to make the application. If for any reason an injunction ought not to be granted on such an application, it can not be assumed that it would be. It would be an anomaly for a court of equity to issue an injunction restraining the defendant from applying to the same court for equitable relief in the same matter, and especially when it is authorized by the express terms of a statute, the validity of which has not been judicially questioned.

We do not wish to be understood as expressing any doubt of the validity of the law of 1872. We simply leave that question undetermined, and dispose of the case on the question here considered.

The judgment should be affirmed.

All concur.

Judgment affirmed.