McGovern v. Van Riper , 137 N.J. Eq. 548 ( 1946 )

William McGovern, the sheriff of Hudson County, was indicted for failure to comply with R.S. 53:1-15 providing that "the sheriffs * * * shall immediately upon the arrest of any person for an indictable offense, * * * take the fingerprints of such person * * * and forward without delay two copies * * * together with photographs * * * to the state bureau of identification." The day following the handing down of the indictment, Mr. McGovern filed a bill of complaint in the Court of Chancery to enjoin the Attorney-General and Acting Prosecutor of Hudson County, Mr. Van Riper, and Charles H. Schoeffel, Superintendent of State Police, their agents and servants "from taking the fingerprints or photographs of the complainant upon his arrest for the misdemeanor for which he now stands charged, and from forwarding the same to the Superintendent of State Police of New Jersey or elsewhere unless and until he stands convicted thereof."

The Court of Chancery made an order to show cause with adinterim stay "from taking the fingerprints and photographs * * * and * * * from forwarding the same to the Superintendent of State Police of New Jersey or to any other person or body." On the adjourned date of the order to show cause, August 6th, 1945, an order was entered that the defendants "desist and refrain from forwarding, disseminating or publishing in advance of conviction, the fingerprints and photographs of the complainant to any person or body whatever unless the complainant shall become a fugitive from justice.

"Further ordered that the ad interim restraint heretofore granted against fingerprinting and photographing the complainant, upon his arrest for the misdemeanors with which he now stands charged, be and the same is hereby vacated and dissolved."

William McGovern appeals to this court from that part of the order of August 6th, 1945, which vacated and dissolved the restraint against fingerprinting and photographing him. No appeal is taken from the restraint against disseminating or publishing the fingerprints and photographs in advance of conviction, and consequently we are not concerned with that phase of the matter.

Appellant argues that fingerprinting and photographing in advance of conviction deprive him of rights protected by article I, paragraphs 1 and 6 of the State Constitution and by the Fourteenth Amendment of the Federal Constitution. We do not think this is so. In Bartletta v. McFeeley, 107 N.J. Eq. 141;affirmed, 109 N.J. Eq. 241, it was held to be lawful for the police to photograph or fingerprint an accused person before trial and conviction. Fingerprints and photographs are useful means for the recapture of escaped prisoners and detection of second offenders and the slight interference with the person entailed thereby is well warranted in the common interest. United States v. Kelly, 55 Fed. Rep. 2d 67;A.L.R. 122.

That part of the order under review lifting the restraint against fingerprinting and photographing is affirmed, with costs.

Having examined the case and passed upon the meritorious questions raised by this appeal, we now pass to a consideration of the brief filed on behalf of the respondents. Without quoting at length therefrom, we state categorically that it contains impertinent, scandalous and contemptuous matter. Respondents' brief will be suppressed and not preserved with the record of the case.

Justices Heher and Oliphant and Judge Wells concur in the opinion in the above entitled case, excepting the references to the brief filed on behalf of the respondents.

For affirmance — THE CHIEF-JUSTICE, PARKER, CASE, BODINE, DONGES, HEHER, PERSKIE, COLIE, OLIPHANT, WELLS, RAFFERTY, DILL, FREUND, McGEEHAN, JJ. 14.

For reversal — None.