
    The People of the State of New York, Appellant, v. Robert C. Clark, Respondent.
    Second Department,
    July 29, 1910.
    Injunction — Agricultural Daw, section 10, construed — equitable power of court — statutory construction— constitutional construction preferred.
    Section 10 of the Agricultural Law, empowering the Supreme Court iu an action to recover a penalty or forfeiture for a violation of the act, to issue an injunction restraining the defendant from a further violation thereof, is not' mandatory and was not intended by the Legislature to invade the equitable province of the court or to take away the discretion vested in it by the Constitution. Hence, an injunction will not.be granted if it do not appear that there is reason to believe that some.action or neglect to act is to be anticipated which will result in injury to the plaintiff.
    
      It seems, that the Legislature cannot prescribe the conditions under which the Supreme Court vested by the Constitution with supreme jurisdiction in la\y ■ and equity, shall exercise its equitable power of enjoining individuals.
    Where a statute is open to two constructions, one of which will make it consti- . tutional and the other unconstitutional, the former construction will be given; Thomas, J., dissented in part.
    Appeal by the plaintiff, The People of the State of Hew York,, from ah order of the Supreme Court, made..at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the ,29th day of April, 1910, denying the plaintiff’s motion for an injunction pendente lite,
    
    
      Taylor More, for the appellant.
    
      William C. Breed [Henry H. Abbott with him on the brief], for the respondent.
   Woodward, J. :

This action was brought under the provisions of section 8 of the Agricultural Law (Consol. Laws, chap. 1; Laws of 1909, chap. 9) for the recovery of certain penalties, and the plaintiff moved the court for an in junction pendente, lite under the.pro visions of section 10 of the same act, which'motion was denied, and from the order denying such motion the plaintiff appeals to this court.

Section 10 of the Agricultural Law provides that “ In an action in the Supreme Court for the recovery of a penalty or forfeiture incurred for the violation of any of the provisions, of this chapter an application may be made on the part of the People to the court or any justice thereof for an injunction--to restrain the defendant^. his agents and employees from the further violation of such provisions,” and then -provides that “The court or justice to whom such-application may .be made shall grant such injunction on proof by affidavit -that the defendant has been guilty of the violations alleged in the complaint, or of. a violation of- any such provision subsequent, to -the commencement of the action, and in the same manner as, injunctions are usually granted under the rules and practice of the court.”

There seems to he - no reason for doubting that the plaintiff has complied with tlm conditions prescribed in the statute, and if the provisions, of section 10 áre to be construed as mandatory, it was the \ duty of the court to grant the injunction, unless the Legislature has exceeded its powers in this regard. We are of the opinion, however, that it was not the intention of the Legislature to invade the equitable province of the court,.and to take away that discretion which is vested in-it by the Constitution-. The clause Which requires that the injunction shall be granted in the “same manner as injunctions are usually granted under the rules and practice of the court” must be given some effect, and one of the fundamental rules in the granting of an in junction is that it must be made to appear, to the satisfaction of the court that there is reason to believe that some action, or neglect to act,-is' to be anticipated,.which will result in injury to the adverse party. When there are no'facts before the court tending to show that there is a likelihood that the defendant will do or permit anything;to be done which will prejudice the rights of the plaintiff courts of equity, under the "rules and regulations of the court, uniformly refuse to grant injunctions, and that was the case in the matter now up for review. The fact that the defendant may have violated the statute, which prescribes .penalties, and is, therefore, of a penal nature, does not raise the presumption that he will do so again, and it would be a violation of every conception of equity to restrain that which is not threatened, or for which there is not a reasonable ground for anticipating will be done, and it is open to very grave question whether the Legislature has a right to prescribe the conditions under which the Supreme Court, vested with supreme jurisdiction in law and equity, shall exercise the equitable power of enjoining individuals. As every presumption is in favor of a statute, if it is open to two constructions, one of which would obey and the other violate the Constitution, the universal rule of courts is to select the former. ¡No statute should be declared unconstitutional if by any reasonable construction it can be given a meaning in harmony with the fundamental law. (People ex rel. Simpson v. Wells, 181 N. Y. 252, 257.) By giving to the words “ shall grant such injunction,” the meaning which is suggested by the remaining clause, and which is meaningless unless thus restricted, the provision does not conflict with the constitutional powers of the Supreme Court, and this is the proper construction of the statute. Permitting the court to grant an injunction under the rules and practice of the court, that is, under the same general conditions which would justify a court of equity in granting an injunction, is proper, and where, as in the case at bar, there is no reason shown for the granting of a restraining order,- the court is justified in refusing to grant the plaintifPs motion.

The order appealed from should be affirmed* with costs.

Hirschberg, P. J., and Jerks, J., concurred; Burr, J., concurred in the result on the authority of Heim v. New York Stock Exchange (138 App. Div. 96); Thomas, J., though of the opinion that the law is correctly stated, voted to reverse on the facts.

Order affirmed, with ten dollars costs and disbursements.  