I dissent.
Under the guise of protecting the public treasury the plaintiff would prevent the purchase of equipment which may be used for a lawful purpose. Assuming that it might be used also for an unlawful purpose it is nevertheless in the same category as firearms which may be so used but whose employment in the enforcement of the law is absolutely essential. It is conceded by the majority that the plaintiff’s primary concern is to prevent repetitions of police conduct held to fall within the constitutional prohibitions in the Irvine (Irvine v. California, 347 U.S. 128 [74 S.Ct. 381, 98 L.Ed. 561]), Cahan (People v. Cahan, 44 Cal.2d 434 [282 P.2d 905]) and Tarantino (People v. Tarantino, 45 Cal.2d 590 [290 P.2d 505]) cases. Such a sweeping injunction is beyond the power of a court to impose and constitutes an attempt by judicial action to impose restraints on other branches of the government in violation of the separation of powers doctrine.
It is provided by statute that an injunction will not lie to “prevent the execution of a public statute by officers of the law for the public benefit.” (Code Civ. Proc., § 526, subd. 4; see also Civ. Code, § 3423.) Certainly the execution of the statutes embodied in the Penal Code is “for the public benefit. ’ ’
Furthermore, even if an injunction would lie to accomplish the purpose sought by the plaintiff nothing in the present record justifies a determination that there is a threat that the defendant chief of police is now engaged, or will engage, in any unlawful activity. At all stages in this proceeding he has made it clearly understood that he has intended and intends to comply with the law. The plaintiff concedes that the chief has acted at all times in good faith in this respect. The record shows that the type of microphone installations *897held to be illegal in the Irvine and Cahan cases were utilized by the chief only prior to those decisions and at a time when such installations were held by our courts to be proper means of police detection. It was not until almost two years after the filing of his answer in this case that the decision in the Irvine case for the first time put him on notice that such conduct might be improper. The defendant asserts, without contradiction, that he has not since that time employed such devices in a prohibited fashion. There is nothing in the record to indicate that he will not comply with the law. The court should give consideration to his conceded good faith. Until a specific violation is threatened there is no reason for court relief. Here there is no such threat. Indeed, the defendant has consistently asserted that he intends to comply with the law as the courts have interpreted it.
Also there is no question, and the opinion so concedes, that lawful police activity should not fall within the scope of the injunctive restraint sought to be imposed. It is not disputed that lawful police measures may often involve the use of microphonic equipment and recording devices. To issue an injunction in the present case would impose on the defendant the unreasonable burden of determining at his peril whether the use of such equipment in any situation would be violative of the restraining order. The existence of such a restraint certainly would constitute an undue interference with the duties of a public official sworn to uphold and enforce the law. I would affirm the judgment.
Spence, J., concurred.
Respondent’s petition for a rehearing was denied September 4, 1957. Shenk, J., and Spence, J., were of the opinion that the petition should be granted.