
    DINSMORE v. N. Y. BOARD OF POLICE.
    
      Superior Court of the City of New York; Special Term,
    December, 1882.
    Injunction against Public Officers.-—Sunday Laws.
    A court of equity has power to grant an injunction in an action against the Board of Police of the city of New York, a corporation, to restrain them from interfering with the necessary operations and business of an express company engaged in the business of interstate commerce, even though a law of the State of New York prohibits, any such operations and business on Sunday, and such' interference was pursuant to such law.
    
    
      It seems, that the provisions of the Penal Code of New York and particularly § 363,—by which “ all manner of servile labor, on the first day of the week, is prohibited, excepting in works of necessity or charity,”—in so far as they authorize an interference by the police with the inter-state traffic of common carriers, are repugnant to art. 1, § 8, subd. 3 of the Constitution of the United States, and void; and that such interference cannot be asserted as an exercise of the police power of a State of the United States.
    
      It seems, however, that a different rule prevails where the State is both the initial and terminal point of commerce. In such case, a State of the United States may lawfully interdict a carrier from transacting its ordinary business, and from receiving and delivering non-perishable merchandise on Sunday under ordinary circumstances.
    In this case, an injunction was granted to restrain the Board of Police of the city of New York from interfering with an express carrier’s transportation of freight between States of the United States, and denied as to domestic matters, that is, as to goods to be received and delivered within the city of New York.
    Motion to continue an injunction.
    The plaintiff, William B. Dinsmore, as President of the Adams Express Company, an incorporated association, brought this action to restrain the defendant, “The Board of Police of the City of New York,” from arresting, impeding or interfering with the employees of the Adams Express Company on any Sunday thereafter, and particularly to restrain defendants from disturbing the ordinary business of the Adams Express Company on Sundays.
    The complaint alleged, among other things, the nature of the plaintiff’s business as dispatch carriers, and the perishable, fragile, and important nature of many articles transported by plaintiff; it also alleged facts tending to show that such business was carried on between the Eastern and Western States of the United States, the city of New York being the terminus of various trunk lines of communication and the place of trans-shipment between such States. That the Adams Express Company did not own the vehicles of communication between such States, but rented an allotted space in such vehicles, and were under an obligation to remove the contents under, their dominion . on or shortly after arrival. That many of the articles they transported, and much of the contents' of such vehicles, must be moved through the city of New York on Sunday or else deteriorate greatly and in some instances be destroyed. The complaint also averred the approach of Christmas and New Year’s day, and the fact that they fell on Monday of 1882 and 1883, and that consequently in the usual course, an immense mass of viands requiring immediate delivery must be moved on the Sundays preceding the holidays in question, or be subject to the vicissitudes of the weather and to destruction by reason of the delay incident to a stoppage of plaintiff’s business on the Sundays preceding such holidays. It was further alleged that the express, before such holidays, was largely used for the transmission of matter which had its origin in charity or affection.
    The complaint also showed that, were there any communication by rail between Jersey City and the Grand Central Depot (the point of departure and arrival for the Eastern States), that under section 5258 of the Revised Statutes of the United States, it would be the right of carriers to traverse such line of connection, and that the State of New York could not arrest such connection under any claim of police power. That in the absence of any such connection by rail the Adams Express Company had for years acted as the conduit of delivery for merchandise, valuables and various articles between- Jersey City and the Grand Central Depot, and that such business was virtually within the purview of such act of Congress.
    It was further alleged that the Board of Police had arrested, and threatened to continue to arrest the various agents and servants of the Adams Express Company for violations of the Penal Code in that they worked in the business of such express company on Sundays. And that the plaintiff was remediless by the course of the common law; that procuring the discharge of the arrested servants on habeas corpus would not prevent the injury to plaintiff’s property in the custody of such servants. It was also averred that the defendant itself had requested plaintiff to institute a suit and to procure an injunction to restrain the interference of the police.
    The defendants, by the counsel to the corporation, interposed an answer to the complaint. This answer consisted of formal denials of knowledge or belief, or upon information or belief. The motion for continu-. arice of the injunction was heard on the complaint and answer, and affidavits corroborative of the complaint. The further facts appear in the opinion.
    
      Clarence A. Seward (Blatchford, Seward, Griswold, and Da Costa), for- plaintiff.
    I. This court has jurisdiction to grant'the injunction sought. The defendant is estopped from denying the jurisdiction, having requested plaintiff to bring this suit (Railway Co. v. McCarthy, 96 U. S. 258-267). The defendant, by requesting plaintiff to bring suit for an injunction, selected its form and procedure, and cannot change its ground and contend that the remedy is at law (Bank of Utica v. City of Utica, 4 Paige, 399 ; Curtis v. Fox, 47 N. Y. 299, 302).
    II. It is quite clear that there is no plain, complete, and adequate remedy at law, arid that the case is justiciable in chancery and not at law.
    III. Even if there were an action at law it was evident that it could be availed of only by a multiplicity of suits ; and equity had under a bill of peace jurisdiction (Mohawk & Hudson R. R. Co. v. Artcher, 6 Paige, 83).
    
      IV. Neither the dignity of the defendant as a legislative corporation, nor the gravity of the duties which it is called upon to perform, withdrew the defendant from the consideration of the court, if the right of property and of injury thereto was involved. Boards of health, similarly situated, have been enjoined (G1ossop v. Heston, &c., L. R. 12 Ch. Div. 102; Attorney General v. Hackney Local Board, L. R. 20 Eq. Cas. 626; Mayor, &c. v. Rural, &c., L. R. 1 Exch. Div. 344; Stage Horse Cases, 15 Abb. Pr. N. S. 51. 66). So wrongful exercise of statutory right will be enjoined (Shaw v. Earl of Jersey, L. R. 4 Com. Pl. Div. 359 ; Sherman v. Wright, 49 N. Y. 227, 232).
    V. The matter being justiciable, the question is whether the acts of the defendant have tended to the injury of the property of the'public in the custody of the plaintiff? Section 603 of the Code of Civil Procedure refers to an injury to physical property, but equity will not stay its hand because the injunction at the same time protects the owner, as well as his property (Emperor of Austria v. Day, 3 De Gex, F. & J. 217, 240). Where the injury to property is beyond question, equity never hesitates to interfere by injunction. The English judicature act, subsection 8, is less broad than section 603 of the Code of Civil Procedure of New York, and in England the remedy is frequently applied to arrest an injury to property (Saxby v. Esterbrook, L. R. 3 Com. Pl. Div. 339 ; Thorley, &c. Co. v. Masson, L. R. 14 Ch. Div. 582 763 ; Thomas v. Williams, L. R. 14 Ch. Div. 864; Thorley, &c. Co. v. Masson, L. R. 6 Ch. Div. 582; Hill v. Davies, L. R. 21 Ch. Div. 798). It is obvious that the injury here is irremediable and irreparable, unless enjoined (Story's Eq. Jur. % 926).
    VI. Courts of equity will enjoin public functionaries when they depart from the power which the law has vested in them and assume to themselves a power over property which the law does not give them (Story Eq. Jur. § 955 a ; Wood v. City of Brooklyn, 14 Barb. 425). Davis v. The American Society, &c., 75 N. Y. 362, 364, does not oppose this. The Penal Code does not justify any injury to property. If it read as broadly as defendants contend, then the question arises, is it constitutional ? (Calder v. Bull, 3 Dallas, 386 ; Gunn v. Barry, 15 Wall. 610 ; Osborne v. Nicholson, 13 Wall. 654; Taylor v. Porter, 4 Hill, 140, 146.
    VIII. Section 263 of the Penal Code does nob prohibit plaintiff’s business; assuming “ servile labor” to retain its primary significance, work performed by servants for the express business is <ca work of necessity or charity.” That which tends to protect property or life is a work of necessity (People ex rel. Lawrence v. Lyons, 5 Hun, 643 ; Parmalee v. Wilks, 22 Barb. 539 ; Crocket v. State, 33 Ind. 416 ; Turner v. State, 67 Ind. 595; Sun Printing & Pub. Assoc. v. Tribune Assoc., 44 Super. Ct. [J. & S.] 136, 141 ; Merritt v. Earle, 31 Barb. 38 ; affirmed in 29 N. Y. 115; Commonwealth v. Knox, 6 Mass. 76; Flagg v. Millbury, 4 Cush. [58 Mass.] 243 ; Aldrich v. Blackstone, 128 Mass. 148; McGatrick v. Mason, 4 Ohio St. 566 ; Whitcomb v. Gilman, 35 Vermont, 297; Sparhawk v. Union Passenger Ry. Co., 54 Penn. St. 401; Murray v. Commonwealth, 24 Penn. St. 270). In this State a carrier may lawfully contract to carry on Sunday (Carroll v. Staten Island R. R. Co., 58 N. Y. 126 ; S. C., 17 Am. R. 221; affirming 65 Barb. 32 ; Wood v. Erie Ry. Co., 72 N. Y. 196 ; S. C., 28 Am. R. 125; affirming 9 Hun, 648; Philadelphia, W. & B. R. R. Co. v. Philadelphia, &c. Steam T. Co., 23 How. [U. S.] 209). If he may contract it is difficult to perceive why he cannot fulfill, if it tends to the preservation of the subject matter (Powhattan & Co., v. Appomattox R. R. Co., 24 How. [U. S.) 247, 258).
    IX. If the plaintiff’s business on Sunday is wholly prohibited by the Penal Code, then such provisions of . the Penal Code are unconstitutional and void. Jurisdiction over inter-state commerce cannot be conferred upon a State by an assertion of the police power (Railroad Co. v. Husen, 95 U. S. 465, 469 ; County of Mobile v. Kimball, 102 U. S. [12 Otto] 691, 702 ; Meyers v. Chicago, R. I. & P. R. Co., 57 Iowa, 555). The Revised Statutes of the United States (§ 5258), give to the New Jersey and New York railroads a right to connect with each other, and when so connected a further right to convey through or across any State. This statute was declared to have been enacted for the purpose of preventing trammels by State legislatures upon interstate commerce, and to prevent the creation of such trammels in the future (Railroad v. Richmond, 19 Wall. 584). Here the Adams Express Company acts as the connecting link within the purview of the protective scope of such statute. If the code is unconstitutional it is clear the injunction should be continued (Joyce on Inj. 737; Holt v. Commissioners of Excise, 31 How. Pr. 334, 339, note).
    
      George P. Andrews, counsel to the corporation, for the defendant.
    
      
       For recent cases as to the right of a railroad company as a common carrier, to make its own contracts and disregard any laws of a State which seek to regulate shipments to points beyond the limits of the State, such laws being repugnant to the federal constitution, see Carton v. Illinois Central Rw. Co., Supreme Court, Iowa, July 13, 1883.
    
    
      
       Amended May 5, 1883, ch. 358, so as to read as follows: “§363. All labor on Sunday is prohibited, excepting the works of necessity or charity. In works of necessity or charity is included whatever is needful during the day for the good order, health or comfort of the community.”
    
   Arnoux, J.

Plaintiffs, so- far as the case before me shows, transact business of a three-fold character, (the first of which is the most important), being (1) the transmission of express matter in transit through the State of New York, and in part through the city of New York; (2) the receipt of freight; and (3) the delivery of freight in this city. The defendants have t.hreatened,to arrest this business on Sunday, and the plaintiffs have prayed for an injunction against such interference.

So far as the power of the court is concerned, to grant an injunction where the defendants threaten to interfere with the business of plaintiffs, the question lias been examined and determined in favor of the power of the court in a proper case, in The Manhattan Iron Works v. The Board of Police, and which can be fortified by the authorities cited by the learned counsel for plaintiffs. Campbell, Ld. Ch. J., in Emperor of Austria v. Day, 3 De Gex, F. &. J. 217, 240, said:

“ This court has jurisdiction by injunction to protect property for an act threatened, which, if completed, would occasion a right of action.”

Even if an erroneous conclusion had been arrived at in that case, the court unquestionably has jurisdiction in this case, for the reason that the defendants suggested to plaintiff that this course should be pursued, as appears by the papers presented to the court (See authorities on plaintiff’s brief).

This case involves the consideration of two questions : First, the inter-state express traffic; and, second, the domestic business of the plaintiff.

In respect to the first, the complaint shows that the plaintiffs have no means of storage of the goods in transit, either at Jersey City or at the Grand Central Depot. The result would be to permit the railroad to discharge the goods into the street and compel the plaintiff there to place guards over it, with the consequent risk of theft, and damage by the elements.

It cannot be presumed that the Legislature passed I this law to deprive citizens of rights vested in them by 1 existing laws, unless for the benefit of the whole com-, 1 munity, and on making full satisfaction (Calder v. Bull, 3 Dall. 386). Such a presumption would be, to ¡' use the language of the supreme court of the United States, in Gunn v. Barry, 15 Wall. 610, “ contrary to | reason and justice, and to the fundamental principles 4 of the social compact.”

If the Penal Code is susceptible of any such construction, however, as would interfere with the interstate traffic of the plaintiff, such provisions are unconstitutional and void, because they violate the provisions of the Constitution of the United States,which delegates to Congress the exclusive power to regulate commerce among the several States (U. S. Const., art. I., § 8, subd. 3). This is decided by the supreme court of the United States in Railroad Co. v. Husen (95 U. S. [5 Otto] 465, 469), sb that whatever doubt may have heretofore existed respecting the right of a State under its police power to arrest inter-state commerce heretofore existing, such doubt has been forever removed.

That case presented the following facts

The State of Missouri passed a statute prohibiting the introduction into that State of certain cattle during eight months of each year, and if transported by any railroad, making it liable for damages arising from disease. Husen brought the action against the Hannibal and Saint Jo R. R. for violation of that law, and recovered judgment, which, on appeal, was affirmed. The railroad company then took the case by writ of error to the supreme court of the United States. The supreme court unanimously reversed this judgment, on the ground that this absolute prohibition was an unlawful restraint of commerce by the State. It cannot be doubled that if eight months is thus obnoxious, fifty-two days would be equally so. If fifty-two days consecutively would be obnoxious, then fifty-two days hebdomadally arranged would be equally so. For the court say: “Transportation is essential to commerce, or rather, it is commerce itself; and every obstacle to it or burden laid upon it by legislative authority is regulative (Cases of State Freight Tax, 15 Wall. 232; Ward v. Maryland, 12 Id. 418; Walton v. Missouri, 91 U. S. 275 ; Henderson v. Mayor, &c. of N. Y., 92 U. S. 259; Chy Lung v. Freeman, Id. 275).” The court then proceed to examine the right of .the State to regulate commerce under its police powers, and adds, “But whatever maybe the nature and reach of the police power of a State, it cannot be exercised over a subject confided exclusively to commerce by the Federal Constitution. It cannot invade the domain of the national government.”

And in County of Mobile v. Kimball, 102 U. S. 691, the same court held that commerce among the States consists in intercourse and traffic, including in these terms the transportation of property as well as the purchase, sale and exchange of commodities.

These authorities must be accepted as decisive upon this question, and therefore, this court must hold that so far as the Sunday laws attempt to restrict the transportation of merchandise by the plaintiff consigned beyond the State on one side to be delivered beyond the State on the other side, they are unconstitutional and void under the constitution of the United States.

A different rule prevails, however, where the State is the initial and terminal point. There the regulation above quoted has no application. The State may restrict or prohibit the business to be therein transacted, provided it does not violate well-known rules of legislation and equity. The court in the case last above cited, 102 U. S. 699, adds to this opinion, this: “The States have as full control over their purely internal commerce as Congress has over commerce among the oeveral States and with foreign nations.”

So where a thing may lawfully be done but a certain method is ordained to be malum prohibitum, the law must be enforced and cannot be restrained by injunction. This distinction is clearly pointed out in Davis v. American Society for the Prevention of Cruelty to Animals (75 N. Y. 362). The law made cruelty an offense. Plaintiffs were extensively engaged in the business of slaughtering hogs. The president of the defendant announced that they must discontinue slaughtering hogs by the methods then used, and that he would arrest all persons engaged in it and stop tlxeir business as often as he found plaintiffs conducting it in that way. Observe that it was not the fact of killing the animals that, in the eye of the law, constitutéd the offense, but it was the method that plaintiffs adopted. So in the case at bar, it is not every act that plaintiffs may do on Sunday that is unlawful, nor every act exempt.

It must depend upon the nature and necessity'- of the act. There may be perishable articles in their possession whose delivery is essential and necessary to its owners. The plaintiff certainly would not be justified (and its distinguished counsel has, in the beginning of Ms argument, forestalled any such supposition), and consequent result in transacting its ordinary business, or receiving and delivering non-perishable merchandise on Sunday under ordinary circumstances.

No general rule can be laid down to govern such a case. They must be dealt with as they arise.

Therefore, as to domestic matters, that is, goods to be received and delivered in this city, the injunction is denied ; as to goods in transit the injunction against defendants is continued.  