The opinion of the court was delivered by
Donges, J.
This appeal brings up a decree of the court of chancery entered as a final decree upon stipulation that the petition and exhibits shall be taken as stipulated facts and that the determination thereon shall be taken as on final hearing and a final decree entered.
The proceeding was commenced under the Declaratory Judgments act. The petition for injunction and other relief was filed to ascertain the rights of the complainant, Moresh, in view of contracts he made with individuals in Bayonne calling for the payment monthly of a stipulated sum in return
for which Moresh would keep in condition, by tightening and otherwise, the glass windows in the contractees’ store windows, and in ease of breakage would replace the glass. Moresh also sought to restrain the prosecutor of the pleas from pressing an indictment theretofore found for an alleged violation by such contracts of the Insurance law, and from instituting or bringing to the attention of the grand jury proceedings involving other alleged violations by reason of like contracts of complainant; and to restrain the commissioner of banking and insurance from instituting and prosecuting any suits for penalties for the violation of the act by reason of such contracts.
The vice-chancellor held that the contracts in question were not contracts of insurance; second, that the Insurance law did not prohibit individuals from engaging in the insurance business; third, that the court of chancery had power to' restrain the prosecution of an indictment theretofore found and to restrain the submission of any like questions to the grand jury; fourth, that the court of chancery had power to enjoin the commissioner of banking and insurance from instituting and prosecuting civil proceedings, in their nature punitive, for alleged violations of the act; and fifth, that the court had power to proceed and determine all the questions under the Declaratory Judgments act.
We are met,
in limine,
with serious questions touching the jurisdiction of equity to afford relief in the circumstances of this case.
It is true that the jurisdiction of the court of chancery was not questioned in that court, nor is the question argued here. It is well settled, however, that jurisdiction may not be conferred by consent, nor assumed by acquiescence. Chief-Justice Gummere, speaking for this court, in
Long Branch
v.
Hoch, 99 N. J. Eq. 356,
said:
“It is enough to say in disposing of this contention that counsel cannot, by mere silence or by express consent, confer upon courts of equity the power to determine litigated matters which', under our judicial system, must be settled in a court of law, or, stated in another way, strip the law courts of juris
diction cónferred upon them under the constitution and transfer it to courts of equity. If counsel for the defendants had moved to dismiss the bill for lack of jurisdiction in a court of equity, a refusal to grant this motion could not have been legally justified.”
To the same effect is
Pridmore
v.
Steneck,
decided by this court at the February term, 1937,
122 N. J. Eq. 35.
We
now take up the question of jurisdiction. Mr. Justice Gray, writing the opinion for the United States supreme court in
In re Sawyer, 121 U. S. 200; 31 L. Ed. 402,
said:
“The office and jurisdiction of a court of equity, unless enlarged by express statute, are limited to the protection of nights of property. It has no jurisdiction over the prosecution, the punishment or the pardon of crimes or misdemeanors, or over the appointment and removal of public officers. To assume such a jurisdiction, or to sustain a bill in equity to restrain or relieve against proceedings for the punishment of offenses, or for the removal of public officers, is to invade the domain of the courts of common law, or of the executive and administrative department of the government.”
He further says: “Any jurisdiction over criminal matters that the English court of chancery ever had became obsolete long ago, except as incidental to its peculiar jurisdiction for the protection of infants, or under its authority to issue writs of
habeas corpus
for the discharge of persons unlawfully imprisoned. * * *
“From long before the Declaration of Independence it has been settled in England that a bill to stay criminal proceedings is not within the jurisdiction of the court of chancery, whether those procedeings are by indictment or by summary process.” And he cites eases to support. He further says: “The modern decisions in England, by eminent equity judges, concur in holding that a court of chancery has no, power to restrain criminal proceedings, unless they are instituted by a party to a suit already pending before it, and to try the same right that is in issue there.”
In
Ex parte Young, 209 U. S. 123,
Mr. Justice Peckham, writing the opinion for the same court, said that it is the
general rule that a court of equity has no jurisdiction to enjoin criminal proceedings by indictment or otherwise under the state law, and then said:
“But there are exceptions. When such indictment or proceeding is brought to enforce an alleged unconstitutional statute, which is the subject-matter of inquiry in a suit already pending in a federal court, the latter court, having first obtained jurisdiction over the subject-matter, has the right, in both civil and criminal cases, to hold and maintain such jurisdiction, to the exclusion of all other courts, until its duty is fully performed.. * * * But the federal court cannot, of course, interfere in a case where the proceedings were already pending in a state court.”
And he further says that if the proceedings are begun after the court of equity has taken jurisdiction, then and then only, they may be enjoined.
We conclude that the court of chancery, in the situation herein, was without jurisdiction to enjoin prosecution of indictments.
The relief sought against the commissioner of banking and insurance to restrain the collection of the penalties provided by the Insurance law for a violation thereof is likewise without jurisdiction of the court of chancery.
“Finally, whenever any forfeiture is provided for by a statute, to be incurred on the doing or not doing some specified act, equity can afford no relief from it, and the same is true of a statutory penalty.”
1 Pom. Eq. Jur. (4th ed.)
¶
458 p. 870.
In
Brunetto
v.
Town of Montclair, 87 N. J. Eq. 338,
Mr. Justice Trenchard, speaking for this court, said:
“An injunction will not issue to restrain a prosecution for a penalty under a municipal ordinance regulating the erection of buildings on the mere ground that such an ordinance is invalid or that it does not bind the property of the party seeking the injunction.
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The opinion of the court was delivered by
Donges, J.
This appeal brings up a decree of the court of chancery entered as a final decree upon stipulation that the petition and exhibits shall be taken as stipulated facts and that the determination thereon shall be taken as on final hearing and a final decree entered.
The proceeding was commenced under the Declaratory Judgments act. The petition for injunction and other relief was filed to ascertain the rights of the complainant, Moresh, in view of contracts he made with individuals in Bayonne calling for the payment monthly of a stipulated sum in return
for which Moresh would keep in condition, by tightening and otherwise, the glass windows in the contractees’ store windows, and in ease of breakage would replace the glass. Moresh also sought to restrain the prosecutor of the pleas from pressing an indictment theretofore found for an alleged violation by such contracts of the Insurance law, and from instituting or bringing to the attention of the grand jury proceedings involving other alleged violations by reason of like contracts of complainant; and to restrain the commissioner of banking and insurance from instituting and prosecuting any suits for penalties for the violation of the act by reason of such contracts.
The vice-chancellor held that the contracts in question were not contracts of insurance; second, that the Insurance law did not prohibit individuals from engaging in the insurance business; third, that the court of chancery had power to' restrain the prosecution of an indictment theretofore found and to restrain the submission of any like questions to the grand jury; fourth, that the court of chancery had power to enjoin the commissioner of banking and insurance from instituting and prosecuting civil proceedings, in their nature punitive, for alleged violations of the act; and fifth, that the court had power to proceed and determine all the questions under the Declaratory Judgments act.
We are met,
in limine,
with serious questions touching the jurisdiction of equity to afford relief in the circumstances of this case.
It is true that the jurisdiction of the court of chancery was not questioned in that court, nor is the question argued here. It is well settled, however, that jurisdiction may not be conferred by consent, nor assumed by acquiescence. Chief-Justice Gummere, speaking for this court, in
Long Branch
v.
Hoch, 99 N. J. Eq. 356,
said:
“It is enough to say in disposing of this contention that counsel cannot, by mere silence or by express consent, confer upon courts of equity the power to determine litigated matters which', under our judicial system, must be settled in a court of law, or, stated in another way, strip the law courts of juris
diction cónferred upon them under the constitution and transfer it to courts of equity. If counsel for the defendants had moved to dismiss the bill for lack of jurisdiction in a court of equity, a refusal to grant this motion could not have been legally justified.”
To the same effect is
Pridmore
v.
Steneck,
decided by this court at the February term, 1937,
122 N. J. Eq. 35.
We
now take up the question of jurisdiction. Mr. Justice Gray, writing the opinion for the United States supreme court in
In re Sawyer, 121 U. S. 200; 31 L. Ed. 402,
said:
“The office and jurisdiction of a court of equity, unless enlarged by express statute, are limited to the protection of nights of property. It has no jurisdiction over the prosecution, the punishment or the pardon of crimes or misdemeanors, or over the appointment and removal of public officers. To assume such a jurisdiction, or to sustain a bill in equity to restrain or relieve against proceedings for the punishment of offenses, or for the removal of public officers, is to invade the domain of the courts of common law, or of the executive and administrative department of the government.”
He further says: “Any jurisdiction over criminal matters that the English court of chancery ever had became obsolete long ago, except as incidental to its peculiar jurisdiction for the protection of infants, or under its authority to issue writs of
habeas corpus
for the discharge of persons unlawfully imprisoned. * * *
“From long before the Declaration of Independence it has been settled in England that a bill to stay criminal proceedings is not within the jurisdiction of the court of chancery, whether those procedeings are by indictment or by summary process.” And he cites eases to support. He further says: “The modern decisions in England, by eminent equity judges, concur in holding that a court of chancery has no, power to restrain criminal proceedings, unless they are instituted by a party to a suit already pending before it, and to try the same right that is in issue there.”
In
Ex parte Young, 209 U. S. 123,
Mr. Justice Peckham, writing the opinion for the same court, said that it is the
general rule that a court of equity has no jurisdiction to enjoin criminal proceedings by indictment or otherwise under the state law, and then said:
“But there are exceptions. When such indictment or proceeding is brought to enforce an alleged unconstitutional statute, which is the subject-matter of inquiry in a suit already pending in a federal court, the latter court, having first obtained jurisdiction over the subject-matter, has the right, in both civil and criminal cases, to hold and maintain such jurisdiction, to the exclusion of all other courts, until its duty is fully performed.. * * * But the federal court cannot, of course, interfere in a case where the proceedings were already pending in a state court.”
And he further says that if the proceedings are begun after the court of equity has taken jurisdiction, then and then only, they may be enjoined.
We conclude that the court of chancery, in the situation herein, was without jurisdiction to enjoin prosecution of indictments.
The relief sought against the commissioner of banking and insurance to restrain the collection of the penalties provided by the Insurance law for a violation thereof is likewise without jurisdiction of the court of chancery.
“Finally, whenever any forfeiture is provided for by a statute, to be incurred on the doing or not doing some specified act, equity can afford no relief from it, and the same is true of a statutory penalty.”
1 Pom. Eq. Jur. (4th ed.)
¶
458 p. 870.
In
Brunetto
v.
Town of Montclair, 87 N. J. Eq. 338,
Mr. Justice Trenchard, speaking for this court, said:
“An injunction will not issue to restrain a prosecution for a penalty under a municipal ordinance regulating the erection of buildings on the mere ground that such an ordinance is invalid or that it does not bind the property of the party seeking the injunction. Such grounds, if sound, constitute a complete defense to the prosecution in a court of law, and, if convicted, he has an adequate remedy by
certiorari. Bloomfield
v.
Glen Ridge, 55 N. J. Eq. 505.”
See, also,
21 C. J. 99.
The petition in the instant case also invokes the jurisdiction of the court of chancery on the ground that the respondent is threatened with a “multiplicity of suits, indictments and criminal trials, and [the carrying out of such threats] will result in irreparable injury to him and his said business.”
Mr. Pomeroy in his work on
Equity Jurisprudence (4th ed.) p. 394
¶ 245 states four classes of cases in which equity takes jurisdiction on the ground of multiplicity. The second class is the one, if any, into which the present case would fall and that is stated to be: “2. Where the dispute is between two individuals, A and B, and B institutes or is about to institute a number of actions either successively or simultaneously against A, all depending upon the same legal questions and similar issues of fact, and A by a single equitable suit seeks to bring them all within the scope and effect of one judicial determination.” Such is the situation here, since the state, acting through its two agents, the prosecutor of the pleas and the commissioner of banking and insurance, is threatening to enforce the statute in question against the complainant. In both proceedings, to wit, the criminal prosecution and suits to collect the penalties, the questions of law and fact would be the same, namely, is the statute valid, does it apply to the complainant’s business and has he violated it P The threatened prosecutions would be successive actions for repeated violations of the statute. It is stated by Mr. Pomeroy, paragraph 253, page 427, that in such cases equity will not take jurisdiction and give relief by way of restraint unless the plaintiff’s right has been established in at least one action at law in his favor. In the present case there has been no determination at law of the controverted questions.
There is some conflict of authority as to the jurisdiction of equity to enjoin criminal and quasi-criminal prosecutions where a multiplicity of such proceedings is threatened and where irreparable injury is said to be threatened, although the weight of authority denies this jurisdiction.
“The rule (that criminal prosecutions will not be enjoined) applies whether the prosecution is by indictment or by summary process, and to prosecutions which are merely threatened or anticipated as well
as to those which already have been commenced. It also applies, although the ordinance or statute on which the prosecution is based is void, although the party seeking the injunction is not guilty of a violation of the ordinance or statute; * * * or although the enforcement of the invalid law or ordinance complained of will result in a multiplicity of prosecutions; but there are some decisions and
dicta
to the contrary.”
32 C. J. 281.
In
Fitts
v.
McGhee, 172 U. S. 516,
the
Sawyer Case, supra,
is relied on, and it is further stated:
“That the defendants may be frequently indicted constitutes no reason why a federal court of equity should assume to interfere with the ordinary course of criminal procedure in a state court.”
In
City of Denver
v.
Beede, 25 Col. 172; 54 Pac. Rep. 624,
it was held:
“A court of equity will not restrain a prosecution at law when the question is the same at law as in equity.
Wallack
v.
Society, 67 N. Y. 23.
An exception to this rule exists when an injunction is necessary to protect a party from oppressive and vexatious litigation, but in such cases the court only acts by granting an injunction after the controverted right has been determined in a previous action in favor of the party applying for such relief.
“As before suggested, if the ordinance is invalid, we cannot assume that the court in which the appellee may be tried for its violation will not so hold, if this question is presented; nor can we presume that, if he is acquitted upon this ground, the officers of the city will continue to harass him with further arrests; so that if his own contention be true, he is in no danger of suffering the irreparable injury of which he complains; nor would he, under such circumstances, be subjected to a multiplicity of suits. It would doubtless be convenient for appellee to have the judgment of the court upon the validity of the ordinance before subjecting himself to liability for accumulated penalties; but, if arrested and convicted, and he chooses to take the chances of ultimately defeating the ordinance upon the ground of its invalidity that is no ground for equitable interference.”
In
Brown
v.
Mayor, &c., of Birmingham, 140 Ala. 590; 37 So. Rep. 173,
the court said :
“The averment that repeated and numerous prosecutions are threatened is not a sesame to open the gates of equity injunctive jurisdiction to the complainant, on the idea of preventing a multiplicity of suits. *
* *
Moreover, the application of the doctrine of multiplicity of suits, sought to be made here, would involve this general proposition: That, whenever a person is being prosecuted severally for numerous alleged offenses, he may, to avoid their multiplicity, have all the prosecutions enjoined, and the several cases tried in one proceeding in the chancery court.”
In
G. W. Mart & Son
v.
City of Grinnell, 194 Iowa 499; 187 N. W. Rep. 471,
the supreme court of Iowa said:
“We will not presume or assume that a court of law will hold an invalid ordinance valid. Th'e same objections can be raised in a court of law as in equity, and the same questions may be presented therein by way of objection to its validity, or the constitutionality of the law in question. If the defendant is convicted, his right of review on appeal
exists;
if acquitted, we will not presume that the officials of a city would continue to harass the defendant with further arrests. Under the facts pleaded there is no danger that plaintiffs will suffer great or irreparable injury, nor would they be subject to a multiplicity of suits under the circumstances of this ease.”
In
Wallack
v.
Society for the Reformation of Juvenile Delinquents, &c., 67 N. Y. 23,
it is stated.
“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. An exception exists where an injunction is necessary to protect a defendant from oppressive and vexatious litigation. But the court acts in such case by granting an injunction only after the controverted right has been determined in favor of the defendant in a previous action.”
Tested by these rules, we are of the opinion that a case properly invoking the jurisdiction of the court of chancery upon the score of threatened multiplicity of suits has not been presented by the pleadings in the instant case. The questions sought to be presented by the present litigation could properly
be raised in a trial of the indictment found in the Hudson county court, and could also be raised in defense of a suit for penalty by the commissioner of banking and insurance. We cannot presume that these public officials, if the first cases tried resulted in decisions in favor of the complainant here, would continue to molest him with further actions based upon the same questions of law and similar issues of fact.
As stated above, the proceeding herein is by way of petition under the Declaratory Judgments act
(P. L. 1924 ch. 140 p. 312),
but that act does not confer jurisdiction on any court over any subject-matter which did not theretofore fall within its jurisdiction. It merely empowered the entry of the declaratory judgments in courts of competent jurisdiction where no further relief could be granted at the time the proceeding was instituted.
We are of the opinion that there is in the present case no ground upon which the jurisdiction of the court of chancery can be placed. It is to be noted that we are not passing upon the jurisdiction of that court in a case where a complainant has been subjected to repeated and vexatious prosecutions after his position has been established in a proceeding at law based upon the same facts and law.
The decree is reversed, with instructions to dismiss the petition.