Dissenting Opinion by
Ms. Justice Musmanno:In view of the fact that this Court has today (in the case of Commonwealth v. Blumenstein, 396 Pa. 417) declared Section 528 of the Act of 1939 unconstitutional, it seems to me that to adjudicate the issues originally involved in the present litigation is like trying to enforce law in a county which has no sheriff. If the defendants, who were indicted under the Act of 1939, cannot be prosecuted, why enjoin the District Attorney from prosecuting them? The proposed injunction, as the law now stands, is like enjoining a person from swimming in a river which is empty of water.
Nevertheless, since the Majority has filed an opinion on the subject if for no other reason than to dispose of the costs, I believe, with due regard for the responsibilities of my office, that I must at least say this much, namely: If, in the final disposition of the case in the court below, the injunction is granted against the District Attorney, (although I can’t understand why) the costs should under no circumstances be placed on the District Attorney. To do so, would be not only inequitable but, as I view the case, contrary to the most elementary rules of justice. To impose costs on a district attorney because of an injunction action begun by someone else, — an injunction which sought to impede the District Attorney in the discharge of his sworn duty, — would represent to me the ultimate in legal paradox and the apogee of jurisprudential outrage.
*461Since the Majority in this case re-affirms its decision in the case of Commonwealth v. Blumenstein, 396 Pa. 417, I wish to incorporate by reference the Dissenting Opinion I filed in that case.
The facts involved in this appeal are very simple. The plaintiff, Kingsley International Pictures Corporation, is the exclusive distributor in the United States of an alleged obscene motion picture entitled “And God Created Woman”. The District Attorney of Philadelphia County viewed the picture and, in the exercise of his discretion as a quasi-judicial officer, concluded that the picture came within the prohibition outlined in Section 528 of the Act of 1939. In discussing the equity action in this case we must assume that Section 528 is still constitutional because we must appraise the situation as it appeared to the District Attorney in February, 1958, when the people of Pennsylvania still believed that our criminal code proscribed lascivious, obscene, indecent and immoral films.
The District Attorney, satisfied that the exhibitors of the film in question, were violating The Penal Code, seized the film and instituted criminal proceedings against two exhibitors in Philadelphia. The plaintiff in New York, remaining far from the battle scene, asked for an injunction in our Philadelphia courts to prevent the District Attorney from proceeding with the criminal actions indicated. In the complaint the plaintiff denied that the picture was obscene and said: “Said film has met with general public acceptance and considerable financial success whenever exhibited.”
I make no comment on the merits or demerits of the film since I have not seen it nor have I read any judicial description of it. I would say, however, that the fact it has met with financial success is no proof to me that it is lily white pure. There can be little doubt that there were many people in the days of the Augean *462Stables who would gladly have paid an admission price to see them because, although difficult to explain, there do exist people who enjoy that type of scenery and effluvium.
The decent and morally upright people of the Commonwealth do not have to be subjected to morally corruptive influences because of a small minority with prurient inclinations. The Supreme Court of New York well stated this situation in the case of Kingsley International Pictures v. Regents of University, 4 N.Y. 2d 349: “Essentially, then the question amounts to this: What can society do about protecting itself from motion pictures which are corruptive of the public morals? We hold that it may refuse to license a motion picture which alluringly portrays adultery as proper behavior. We so hold with full confidence that our Founding Fathers never intended that our Federal Constitution be the altar upon which this State, and this nation must sacrifice themselves to the ravages of moral corruption. Our Constitution is a document for government, not a tool for anarchy or a license for corruption.”
In emphasizing the deleterious effect that an immoral motion picture may have on a community, the New York Court said further: “This is not a case of a book on a shelf or in a home — it is a case of mass dissemination of approved illicit sex by the spoken word and a visual art. It is a case not of one showing but hundreds of showings. It is a case not of an audience of one, but audiences of hundreds — -in some cases thousands — at each showing. It is a case not merely of a theme of words, but a theme woven about scenes clearly portraying and suggesting acts of adultery.”
Chief Justice Warren excellently stated, in his Concurring Opinion in the case of Roth v. United States, 354 U.S. 476, 495, the governmental duty to punish *463purveyors of filth: “The defendants in both these cases were engaged in the business of purveying textual or graphic matter openly advertised to appeal to the erotic interest of their customers. They were plainly engaged in the commercial exploitation of the morbid and shameful craving for materials with prurient effect. I believe that the State and Federal Governments can constitutionally punish such conduct
The Constitution of the State of Pennsylvania has reposed in the hands of the District Attorney the power and authority, as well as responsibility of protecting the people from those who would attack the public health and welfare. In discharging his responsibilities under the Constitution and the laws of the Commonwealth he is required to enforce the obscenity statutes of the General Assembly. That is what District Attorney Victor Blanc attempted to do in this case and it is incredible that he should be restrained through the processes of law from doing what the law requires him to do. And it is utterly shocking that he should be restrained from protecting the rights of the citizens of Philadelphia who elected him to do that very thing.
The complaint of the Kingsley Pictures Corporation was filed on February 4, 1958. After various proceedings not necessary to dwell on here, the Court of Common Pleas dismissed the complaint on March 6, 1958. The plaintiff appealed to this Court and asked for a supersedeas. This Court granted the supersedeas and ordered the District Attorney not to interfere with the showing of the film until final disposition by this Court of the pending appeal.
This Court now sustains the appeal and, in doing so, lays down an extraordinary and, to me, alarming-doctrine, namely, that a District Attorney may be enjoined from proceeding in a criminal case. If Equity possesses such authority, it cannot be said that it is an authority which is hoary with age. As recently as *4641940, this Court said in the case of Meadville Park T. Corp. v. Mook, 337 Pa. 24: “That a court of equity’s restraining of a district attorney in the performance of his official duty is a most unusual procedure is evidenced by the fact that this is the first time any appellate court of this state has been called to review such a case.”*
In that case the District Attorney of Crawford County initiated by information a criminal prosecution before an alderman against the defendants, charging them with operating a lottery. The Court of Common Pleas of that county, upon an application therefor by the defendants, granted an injunction against the District Attorney. On appeal, we reversed, saying: “A district attorney is a constitutional officer-with a mandate from the state to proceed with prosecutions of violations of criminal laws. 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. The Commonwealth (as well as alleged law breakers) has an interest in the maintenance of the right of trial by jury. The machinery of the criminal law is designed for the protection of society and the office of district attorney is an important part of that machinery. It is difficult to conceive of anything more opposed to sound public policy than to permit an accused to obstruct by means of a suit in equity to which the state itself is not a party the operation in his case of the machinery of criminal procedure which has- been constitutionally established to protect the public welfare.” (Italics in original)
*465It is true that the Majority in its Opinion makes a distinction between this case and the one at bar (as will be discussed later) but the fact still remains, as stated by the Supreme Court of the United States in the case of Hygrade Provision Co. v. Sherman, 266 U.S. 497: “The general rule is that equity will not interfere to prevent the enforcement of a criminal statute even though unconstitutional."
In another United States Supreme Court case, the Court said: “A court of equity . . . 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." (Sawyer et al., 124 U.S. 200, 210)
In attempting to distinguish the Meadville Park case from the case at bar, the Majority says that in the former, case the plaintiff did have a remedy at law, whereas in the latter the plaintiff has no adequate and complete remedy at law. The Majority makes it even stronger by saying that the plaintiff “has no other remedy at all.”
This statement, I respectfully submit, does not at all agree with the realities of the situation. An immediate trial under Section 528 of The Penal Code would have given the plaintiff his remedy. His “remedy” incidentally, was only that he should have an opportunity to ascertain authoritatively whether his film was a legal property or not because it cannot be pretended that he would have any right of property in a product which, in fact, was illegal. If the trials of the two exhibitors had taken place in the early part of 1958, as it was the wish and intention of the Dis*466trict Attorney that they take place, Kingsley would have known in a matter of weeks whether its film was legal in Pennsylvania. If the verdicts established the film not to be obscene the most the plaintiff would have suffered would have been the loss of several weeks’ receipts which unquestionably it would immediately have recouped. If, on the other hand the film would have been proved obscene, then Kingsley would have had no property rights to be protected because, obviously, as I must repeat, no one can have property rights in an illegal thing.
The Majority completely ignores the rights of the public in this matter. The public has the right to be protected from lewd, lascivious and immoral exhibitions. This Court makes not one reference to the public in its Opinion. It seems to assume that the only question in the case was: How Avas Kingsley to be protected? Suppose Kingsley had owned a couple of poisonous snakes which it wished to exhibit on an admission fee basis. And suppose the municipal authorities concluded that the mere presence of the snakes in public constituted a mortal danger to spectators and bystanders. Would this Court, in such a situation, be concerned only with protecting the property rights of Kingsley and ignore the public peril presented by the snakes?
Had the District Attorney been allowed to try the two exhibitors, who were duly charged Avith committing a crime, the public Avould ha.Are been shielded from indecent performances, and Kingsley Avould have had his property rights resolved. But, instead of allowing the laAV to take its course, this Court by the positive act of ordering the District Attorney not to interfere with the exhibition of the film, and by the negative action of Avithholding decision for over a year, alloAved the public to be subjected to the film’s obnoxiousness for all that time, so that Avkatever rights the public *467possessed to be guarded from obscenity and indecent exhibitions have been completely dissipated, through no fault of its own.
So far as we now know the film could have been more than obscene, it could have been pornographic, and yet the public, including girls, young boys, and women were left absolutely defenseless before its vulgar assaults on public morals.
It is my belief that in this case the powers of Equity have been grossly abused. The rights of property in a film certainly do not rise and should not rise higher than the rights of the people to be protected from public corruption.
I wish to repeat that I disagree with the Majority that the plaintiff wa.s without remedy at law. The City Solicitor, in his brief, makes the following statement Avhich is not controverted: “When the District Attorney on March 25, .1958, moved to list the criminal cases against the exhibitors at an early date, he met Avith objection from the plaintiff. . . Again on April 8, 1958, when the defendants in the above docketed criminal cases should have been arraigned, the defense objected on the ground that the present appeals should first be determined.”
It is thus obvious that the plaintiff did not want an immediate adjudication as to Avhether its film Avas obscene or not. The plaintiff preferred to remain in the civil courts as long as possible because, with a supersedeas Avhich allowed it to exhibit the picture and continue to make money, it had nothing to lose and everything to gain by a delayed decision. The very thing Avhich the plaintiff obviously planned has triumphed. The plaintiff has squeezed every possible lucrative return out of the film. It has been run and re-run in many theatres so that even if the injunction Kingsley asked for Avere denied it would lose nothing because *468the picture has by now completely exhausted its profits-producing potentialities. Thus, Equity has been made the vehicle for a money-making scheme on a product which, so far as this Court knows, may be the filthiest film ever made.
And now, with this Court declaring Section 528 of The Penal Code unconstitutional, the plaintiff has achieved a victory beyond every possible anticipatory dream and the public has lost even the right to have been informed as to whether or not the Courts regarded the film as violative of the moral standards which are inextricably woven into the law of the land.
In support of its position the Majority has cited Pennsylvania Railroad Company v. Bogert, 209 Pa. 589, but the decision in that case cannot possibly apply to the facts in the case at bar. Our Court said there, as quoted by the Majority Opinion: “. . . when from the nature and complications of a given case, its justice can best be reached, by means of the flexible machinery of a court of equity, in short where a full, perfect and complete remedy cannot be afforded at law, equity extends its jurisdiction in furtherance of justice.’ ” The facts in that case were indeed complicated. The first sentence in the Court’s Opinion read: “It is impossible to gather a clear chronological history of this case from the jumbled-up records in the paper-books before us.” But there was nothing jumbled up about the ease at bar. There was no need for Kingsley to resort to Equity because of complicated facts.
The Majority Opinion quotes further from the Bogert case, namely: “ “The remedy at law must be plain; for if it be doubtful and obscure at law equity will assert a jurisdiction.’ ” But there was nothing doubtful and obscure about the indictments against the two exhibitors of the film “And God Created Woman.” The plaintiff had a remedy at law which was very *469plain. That remedy lay in the Court of Quarter Sessions where the court was prepared and the District Attorney was eager to try the eases without any delay whatsoever.
It was the plaintiff who wished to make the matter complicated, it was the plaintiff who wished to obscure the issue, it was the plaintiff who planned the involvement of Equity in a matter which was absolutely foreign to its jurisdiction. And then, it was and is this Court which allowed the plaintiff to gain an advantage to which it was not entitled, and, in doing so, this Court has indeed complicated criminal law and equity procedure to a degree which I shudder to contemplate.
I do not comprehend the Majority Opinion’s defense of property rights over the rights of the public. Would the distributor of a palpable gambling device have the right to enjoin the District Attorney from prosecuting the operator of such a device, simply because property rights are involved? Suppose Mr. A set up in Pennsylvania a race track replete with gambling booths, and the operators of the booths were arrested and indicted for violating the laws of the Commonwealth, would the owner of the race horses have the right to enjoin the District Attorney from proceeding against the gamblers simply because his horses were involved in the transaction? And if he would not have that right, on what basis can this Court say that the owner of an alleged obscene picture has more rights than the owner of legal horses?
The Majority Opinion says: “In the instant case the remedy at law is not even doubtful and obscure; it is wholly nonexistent. The plaintiff cannot have its property rights protected against invasion by the defendant in a criminal proceeding to which it is not a party and to which it cannot be made amenable.” The Kingsley *470Corporation could easily have made itself amenable to the criminal proceeding by coming into Pennsylvania. If, in fact, the picture was actually obscene, why should the plaintiff be allowed to use our Courts by remote control? Why should our Courts offer jurisdiction to persons who remain outside Pennsylvania while their illegal product circulates in Pennsylvania? Why should the plaintiff enjoy an immunity which is not given to those who are charged with violating The Penal Code in other particulars? The distributor of an obscene film is as much a violator of law as a man who commits larceny, robbery or burglary.
The case of Adams v. New Kensington, 375 Pa. 557, which the Majority cites in presumed support of its position gives it no support whatever. On the contrary, it flatly repudiates the Majority’s position! In that case the City of New Kensington passed an ordinance which required juke box owners to pay a certain license fee, the failure to pay which, would subject the owners to certain penalties. The plaintiff Adams filed a bill in equity to enjoin the enforcement of the ordinance, which, he asserted, was unconstitutional. The Court granted the injunction. This Court, however, vacated the injunction, and declared wisely, and with full appreciation of the dignity of Equity: “It is elementary that an injunction will not he granted to restrain criminal prosecutions on the mere ground that the statute or ordinance on which the prosecution is based is, for any reason, unenforceable, since the party has an adequate remedy at law; he may establish at trial, by way of defense, the invalidity of the legislative enactment.”
Nor do the other cases cited by the Majority support its thesis. The principle fallacy in the Majority’s position is that it fails to distinguish between cases where the object in dispute is alleged to be criminal in *471itself and cases where the object is inherently legal but is being illegally used. For instance, in the case of Morrison v. Davis, 252 F. 2d 102, cited by the Majority, the statute in issue imposed criminal penalties against operators of public transportation vehicles if they did not enforce segregation. The Court held that the enforcement of the statute could be enjoined. But it is to be particularly noted that no one claimed that there was anything illegal about the buses or rail cars. It was the use to which they were being put which was illegal. In the case at bar, however, the Commonweal th asserted that the film itself was intrinsically illegal: it was obscene and, therefore, contraband.
I am afraid that by its decision of today this Court has thrown a large monkey wrench into the prosecution machinery of the Commonwealth. I do not think it can be denied that in most criminal cases some property rights are involved. In such cases the owner may conveniently make himself a stalking horse for the defendant by going into Equity and requesting an injunction against the District Attorney on the basis that his property rights must be protected. The proceedings in Equity can then be protracted until witnesses in the criminal case move away or die, documents are lost or disappear and interest in the prosecution wanes, or disappears.
It is with a great deal of melancholy that I survey, as the people of this State must survey, the situation in Pennsylvania today on the subject of the efforts of the representatives of the people in the General Assembly to keep immoral and obscene motion pictures out of Pennsylvania.
With what was begun in the Hallmark case, continued in the Blumenstein case, and now devastating^ completed in the present case, the prosecution machinery of the State in obscene film cases has been *472reduced to a shambles. It is inevitable that the district attorneys and the police departments throughout Pennsylvania will be demoralized and bewildered as to what they can or should do to keep out of the State the carpetbaggers of filth, prevent the importation of pornography, and restrain the merchants of obscenity.
Unless the General Assembly comes to the aid of the people with renewed legislation and William Penn comes down from his pedestal atop City Hall to protect the State he founded against the forces of immorality at our borders, far more damaging to the welfare of the people than the Indians he encountered, the fair Commonwealth which he dedicated to religious freedom, civic liberties and moral purity, may well be on the way to a cinematic Gomorrah.
Italics, mine, unless otherwise indicated.