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COOPER v. MCDERMOTT. (03/22/60)

March 22, 1960


Appeal, No. 103, Jan. T., 1960, from order of Court of Common Pleas No. 2 of Philadelphia County, Sept. T., 1959, No. 1327, in case of George Cooper et al. v. Thomas F. McDermott. Order affirmed.


Michael von Moschzisker, with him Fred Cohen, and John Rogers Carroll, for appellants.

Thomas A. Masterson, Deputy City Solicitor, with him Anthony J. Ryan and John M. McNally, Jr., Assistant City Solicitors, and David Berger, City Solicitor, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Eagen

[ 399 Pa. Page 161]


Six of the appellants, citizens of the State of California, stand indicted in the Court of Quarter Sessions of Philadelphia County, charged with the violation of, or conspiracy to violate, Section 524 of the Act of June 24, 1939, P.L. 872, as amended by the Act of July 17, 1957, P.L. 972, 18 PS ยง 4524. Specifically, the indictment containing two counts charges that the defendants "feloniously did distribute, exhibit and give away a quantity and quantities of certain obscene literature consisting of writing, printed matter, pictures, images, drawings, figures, photographs and other pictorial representations, which are unrelated to science, art and scientific studies, and which when taken as a whole are indecent, lewd, lascivious and have the effect of inciting to lewdness or sexual crime, and certain lewd, lascivious, filthy, indecent and disgusting pamphlets, story papers, papers, writings, drawings, photographs, figures and images, and certain written and printed matter of an indecent character", and that the defendants "feloniously did write, print, publish and utter, or did cause to be printed, published and uttered a quantity

[ 399 Pa. Page 162]

    of advertisements and notices giving information, directly or indirectly, stating or purporting to do so, where, how, of whom, or by what means certain, or what purported to be, a quantity and quantities of obscene, lewd, lascivious, filthy, disgusting and indecent pictures, writings, papers, figures, images, matter, articles, and other obscene literature could be purchased, obtained or had." This statute in substance renders it a crime feloniously to write, print, publish, distribute or exhibit, etc., obscene literature of the printed, picture or photograph type, which is unrelated to science, art or scientific study and which, when taken as whole, is indecent, lewd, lascivious and has the effect of inciting to lewdness or sexual crime.

Pursuant to the indictments and at the request of the District Attorney of Philadelphia County, the Governor of Pennsylvania issued warrants of extradition commanding that the defendants be taken into custody and returned to Philadelphia County for the purposes of trial.

This appeal involves three separate complaints in equity (in two actions the six individuals charged with the criminal violations involved are plaintiffs and in the other action three taxpayers, residents and citizens of the City of Philadelphia, appear as plaintiffs), which seek to enjoin the defendant, the Chief of County Detectives in the office of the District Attorney of Philadelphia County, from taking any action in furtherance of the execution of the extradition warrants.

It is charged that the statute of 1939, supra, upon which the criminal charges are based is vague and on its face unconstitutional and is in violation of the Fourteenth Amendment to the Constitution of the United States and of Article I, Sections 7 and 9 of the Pennsylvania Constitution. It is also argued that the act of the Governor of Pennsylvania in authorizing extradition is void, arbitrary, unreasonable and without

[ 399 Pa. Page 163]

    legal warrant and that a waste of tax funds will result if further prosecution ensues.

All actions were consolidated for the purposes of disposition and the court below denied injunctive relief and dismissed the request for a preliminary injunction. An appeal to this Court followed.

Equity has no jurisdiction under the circumstances presented. As a general rule, the office and jurisdiction of a court of equity, unless enlarged by statute, are limited to the protection of the rights of property and do not invade the domain of the courts of the common law. Equity's jurisdiction does not involve control of the prosecution, punishment and pardon of crimes or misdemeanors: In re Sawyer et al., 124 U.S. 200 (1888); Douglas v. City of Jeannette, 319 U.S. 157 (1943). These important functions, for most compelling reasons and sound public policy, are performed exclusively in courts exercising criminal jurisdiction: Meadville Park Theatre Corporation v. Mook et al., 337 Pa. 21, 10 A.2d 437 (1940). As stated in that opinion, page 24: "Only confusion and frustration in the enforcement of these laws would result if a person arrested or about to be arrested for their violation could by transforming himself into a complainant and a district attorney into a defendant, in civil proceedings, have his guilt or innocence adjudicated by a court of equity."

While there have been rare and unusual instances wherein courts of equity have enjoined public officers from proceeding with the enforcement of penal statutes, in those cases the validity of the statutes under which the proceedings had begun was seriously and substantially challenged and, in addition, it was clearly apparent that irreparable damage and harm would be done to property by a continuation of the prosecution. Both of these elements are indispensable: Martin v. Baldy, 249 Pa. 253, 94 A. 1091 (1915); M. & S. Ry. and L. Co.

[ 399 Pa. Page 164]

    found in another state. We read no such intention on the part of the Legislature in this statute. Sections 6 and 23 would seem clearly to indicate the contrary and to provide for extradition of persons whose acts in the asylum state result in the commission of crimes in the demanding state. If the defendants are fugitives, the extradition is mandatory; if they are not fugitives the extradition is discretionary. In Ex Parte Morgan, 86 Cal. App. 2d 217, 194 P. 2d 800 (1948), the court quoting from Cassis v. Fair, 126 W. Va. 557, 29 S.E. 2d 245 (1944), at page 248 stated: "'No reason in law, expediency or comity has been suggested why extradition should be limited to those who were physically in the state at the time the crime was committed. Many crimes may be committed in a state while the culprit remains without its borders. This is particularly true where such offender acts through an agent or a conspirator.'"

It is to be noted also that both in Ex Parte Morgan and in Cassis v. Fair, supra, it was strongly urged that the provisions of the Uniform Extradition Act in regard to the extradition of those accused of crime, who were not in the demanding state at the time of its commission and who, therefore, had not fled therefrom, are unconstitutional and in violation of the laws of the United States. This contention was rejected therein, as it has been consistently so when raised in other jurisdictions: Ennist v. Baden, 158 Fla. 141, 28 So. 2d 160; English v. Matowitz, 148 ...

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