H. W. Denton and International Union of Electrical, Radio and MacHine Workers, CIO v. City of Carrollton, Georgia
235 F.2d 481
5th Cir.
1956
Check Treatment

*1 Union and International DENTON H. W. Electrical, Machine Radio and Workers, CIO, CARROLLTON, OF

CITY GEORGIA, et al.

No. 15841. Appeals

United Fifth Circuit.

July 20, 1956.

Rehearing Sept. Denied

Cameron, Judge, Circuit dissented.

jamin Sigal, C., Washington, Adair C. D. Atlanta, appel- Goldthwaite, Ga., & for lants. Shirley Boykin, Carrollton, Ga., C. W. Jr., Harlan, .Moye, At-

Glen A. Charles lanta, Ga., Carrollton, Knight, H. Lamar Ga., appellees. for HUTCHESON, Judge, Before Chief BROWN, and CAMERON and Circuit Judges. Judge. BROWN, R. JOHN Circuit Electrical, Ra- International Union of Workers, CIO, and dio Machine and Den- ton, Georgia citizen, em- one of its ployed organizers, sought labor declara- tory injunctive relief the en- City forcement of an Ordinance1 of the Georgia, Carrollton, requiring that any person, firm, engaging corporation or profession, enterprise or business occupation agent, promot- of labor union organizer er, apply or a li- for obtain $1,- for cense which the fee was license plus day 000.00 ac- each $100.00 tivity was on. carried Conviction for comply failure with the Ordinance subjected a violator to fine not exceed- ing imprisonment or not ex- $100.00 ceeding sixty days or both. C., Diamond, Washington, plaintiffs claimed, Bert D. J. and the Court Goldthwaite, Jr., Atlanta, Ga., found, Ben- R. that at least em- some of the providing Mayor require, “An Ordinance for a business and Council shall no any per approved except by license tax and -diem license for such license shall be person conducting Mayor oc tbe business or act and Council. union, cupation agent “Upon approval Mayor union or of labor promotor any application ap- union or union labor labor Council such organizer plicant pay *. a license tax in the shall “ * * * * * * any person, $1,000.00 amount and shall thereafter corporation engaged in, deposit beginning twenty or who or firm of each any length period day time hour who four of each exercise for each City profes- person engaged any activity within Carrollton the said enterprise occupation City sion, or $100.00 business with sum Clerk agent, capacity during la- of a labor union the continuance of said license promotor, twenty period. labor union or- four hour bor union said There any prior engaging proration ganizer, shall shall no the initial license any $1,000.00. written said activities file extent “ * * Mayor City application firm individual corporation failing Carrollton, giv- obtain the afore- Council pay per individual, firm or or to thereafter the name of such said license provided license, age, corporation seeking continuation tax herein said diem out, origin, employer, any, place set shall conviction if any, punished prescribed person, record, in Section 263 of the criminal if stating said Carrollton, person and if none so the Code of said of upon Georgia.” oath, other as the and such matters

4§3 Co., manufacturing 261, 267, ployees concerns of two 738; Amalgamated engaged Ass’n, com- L.Ed. in interstate etc. in Carrollton organiz- Board, Employment sought Wisconsin Relations had assistance merce *3 plants 359, employees as 340 U.S. 71 S.Ct. 95 L.Ed. of these 364; etc., Teamsters, act Garner then 346 U.S. IUE v. members of the who 161, Agent Bargaining 74 S.Ct. 98 L.Ed. 228. as Collective required effectively To do this them. they point, In elaboration of as this to, organizer (Denton) con- “talk that an tact, operation serted that of the Ordi em- assemble and with” meet brought nance it within each of the three ployees city of Carroll- limits within the regulations classes of forbidden local de be, cov- ton “activities and which would Anheuser-Busch, lineated Weber v. Accepting, ap- ered the Ordinance.” Inc., 468, 485, 480, 348 U.S. 99 75 S.Ct. proof parently, plaintiffs’ further First, prohibits L.Ed. 546: it the exer “ inquiry on Denton whether right cise of freedom’ ‘full under- if he Ordinance would be enforced bargaining workers in the selection of organizational work, the took to do this representatives choice,” of their own city all Ordinances officials stated that Florida, 538, Hill v. State of 325 U.S. 65 enforced, fur- held would be the Court 1374, 1373, 1782; S.Ct. 89 Inter L.Ed. probable be, “a ther that there would Automobile, national Union of United against proceedings criminal stitution of Agricultural Implement Aircraft * * * * * * Denton, should if [he] O’Brien, Workers America v. 339 U. * ** organizational proceed ef- with 454, 978; 781, 70 S. S.Ct. 94 L.Ed. * obtaining a license forts without Amalgamated Ass’n, etc. v. Wisconsin Employment Board, supra; Relations that the Or In addition to the attack depriva Teamsters, etc., supra, Garner v. since dinance was an unconstitutional employees, presumably public speech, while free to tion of free representatives assembly, choose lawful under Section 7 and dissemination of information, Collins, Thomas v. 323 U.S. the Act must confine their choices to 430; 516, 315, agents approved 65 89 L.Ed. cf. S.Ct. lo and licensed Grosjean Co., City Government; Second, Press 297 U.S. v. American cal tends it Hague 660; 233, 444, regulate, by establishing 80 L.Ed. 56 S.Ct. stand its own CIO, 496, 954, ards, prohibited 59 83 L. v. 307 U.S. S.Ct. conduct which has been 1423; City Griffin, practice” 303 Ed. Lovell v. as an “unfair labor under the 666, 444, 949; Act, Packing 82 U.S. 58 S.Ct. L.Ed. Plankinton Wiscon Co. v. Largent Texas, 418, v. 318 Employment U.S. Board, sin Relations 338 U. 667, 873; 63 87 L.Ed. Martin v. 491, S.Ct. 953, 588; 94 S. 70 S.Ct. L.Ed. Ohio, Struthers, 141, 319 63 U.S. Building Trades Council v. Kinard Con 1313; and un S.Ct. 87 L.Ed. Co., 346 struction U.S. 74 S.Ct. warranted discrimination labor 423; Teamsters, etc., 98 L.Ed. Garner v. regu field unions a class and of local Capital supra; B., Service v. N. L. R. 347 process lation violation of the due 887; e.g., 98 74 S.Ct. L.Ed. U.S. protection provisions equal Con bargain duty good faith with stitution, e.g., Raich, Truax v. 239 U.S. employees’ representative would, or 131; L.Ed. 60 cf. v. might, depend “person 36 S.Ct. Hale on whether the * * * * * * Trading Co., engaged 306 Bimco U.S. 59 who 771; profession, enterprise the Ordinance business occu or * * * primarily assailed as an unconstitu pation was of a union operation agent” properly licensed; interference with the 29 tional cf. U.S. Management Act, 158(b), 159(f h), 160(c) Labor Relations 29 C.A. §§ — seq. carrying et forward United Mine Workers America v. Ar U.S.C.A. § Flooring predecessor Co., policy National Oak La kansas U.S. Amalgamated infringes Act; 559; Third, Relations see it bor 76 S.Ct. dealing machinery Utility Edison Workers Consolidated certifica- exclusiveness”, ground, substan “implications there was a serious and tion which carries 1337,2 Corp. question, wheth Telephone 28 U.S.C.A. tial § osse LaCr pre-emp Employment er the Ordinance collided with Relations v. Wisconsin Congressional legislation such as Board, L. tive Act, U. Labor National Relations New York Ed. Bethlehem Steel v. Watson, seq., Board, S.C.A. et A.P.L. State Labor Relations L.Ed. 873.3 since He declined to exercise the pre payment is a fee an exorbitant First, possessed he twofold reason. soliciting requisite procuring a suf stay pro because to do so would *4 “showing least .ficient of interest” of ceedings contrary to the a state court claimed, employees unit of the in the 30% Second, prin Statute.4 and this was the 159(c), Statement 29 NLRB U.S.C.A. § cipal action, basis for his the case Procedure, of 101.16-101.17. Sections showing wanting equity for lack of a danger never irreparable injury, District Court But the of of both got ju sure, great general immediate, he found far. To be and under right Douglas risdiction, 1343, principles 28 U.S.C.A. restated5 in v. § although ly since, merits, Jeannette, 164, 157, 163, he did on of 63 319 U.S. so necessary decide this find it to 87 L.Ed. 1324. not S.Ct. equity 2. “Tlie district courts of their discre- § 28 U.S.C.A. 1337: exercise of jurisdiction any powers original tionary to this shall have civil action or should conform by proceeding arising policy refusing to with or interfere Congress regulating proceeding any commerce embarrass in state Act of threatened exceptional protecting cases and commerce courts save those or trade monopolies.” interposition a court which call for the restraints injury equity prevent irreparable 3. asserted under 28 to was also Jurisdiction equita- imminent; which is clear and district court § U.S.C.A. 1331: “The infringing independence original jurisdiction of all civil ble this have remedies shall though they might other- the matter controver- of the wise be actions wherein sy states — given $3,000, if or value of be withheld the sum exceeds —should slight inconsequential costs, sought and arises or of interest and on exclusive Constitution, laws, grounds. or treaties under the stated “It is The Court a familiar rule that courts of the United States.” predicated upon ordinarily equity prosecutions. was not do not restrain criminal such, person although, allegations from on this uncon- No is immune alleged record, validity prosecution good faith his since the also for tradicted imminence, brought directly in Its even criminal acts. license fees was question, payment though alleged of the initial fee to be in violation of consti daily liability guaranties, ground probable is for for the tutional not and the more, equity days would, sat- the lawfulness or con 21 without relief since fee stitutionality isfy requirement. or ordinance this may prosecution on which based 4. 28 U.S.C.A. “A court of the 2283: readily in criminal case as determined as in a suit for an grant an United States injunction. Davis & stay proceedings ex in a State court Angeles, Mfg. 189 F. v. of Los Co. by expressly cept authorized Act of 778; 207, 498, L.Ed. U.S. 23 S.Ct. 47 necessary Congress, where aid of or 240, Boykin, 271 S.Ct. Fenner v. 492, U.S. 46 protect jurisdiction, effectuate or its the threatened 70 L.Ed. 927. Where judgments.” re District Court its alleged by prosecution state officers Amalgamated Clothing strongly on lied law, the courts of a state violations are Richman Broth America v. Workers meaning its the final arbiters of 452, 99 ers, S.Ct. 75 L.Ed. 348 U.S. subject only application, this to review grounds appropriately Court on adopt- legislation, “Congress, by fed Hence the arrest asserted. processes policy, of the crim courts certain well defined eral ed statutory exceptions, states, leaving general- and the deter inal law within questions criminal lia mination of ly trial crim- the state courts court, bility laws, arising law under state under state sub- inal cases be'supported only .a, equity, on are ject fed- Court of review this 'danger irreparable injury showing Hence, questions courts involved. eral

4§5 envisages 318; it- 43 67 But this rule S.Ct. L.Ed. United States wholesome LaFranca, necessity, v. 282 self the under circumstances U.S. 551; genuine damage, Raymond Chicago for 75 L.Ed. of affording and irretrievable v. Un though Co., equitable ion Traction U.S. 28 relief even 207 S.Ct. prosecu- 78; v. the result is forbid criminal Union Pacific R. Co. legal proceedings. Board of or other start Commissioners tion We of Weld Coun ty, euphemistically here with an exaction U.S. 62 L.Ed. S.Ct. 1110; tax,” Bickell, in its Lee called “license but which puni- 1337; cumulative S.Ct. 78 L.Ed. see Allen effect is exorbitant Regents effect, pur- University Georgia, tive. pose, Its and therefore its 1448; regulate, pro- U.S. seems but to 82 L.Ed. payment Margarine Co., hibit. The of a of Miller v. Standard license tax Nut 422; $1,000.00 large, alone, while would not 76 L.Ed. Georgia legality Banking doubtful, present if even Railroad were & Co. v. Red wine, equitable case relief. But U.S. Witsell, must added the further Toomer v. sum $100.00 *5 day person 1156, for a each acts a S.Ct. 92 as L.Ed. 1460. organizer,” union “labor but as “union large money amount of re agent” well, presumably as which could quired pre-pay for a test an becomes long organiza- cover activities after the aggravated factor if actual doubt exists union, tion drive and while the victorious concerning recoverability of such membership campaign, undertakes sums the event the basic law is ulti protracted process what abe of bar- mately declared invalid. That doubt both gaining. year person For one one statutory6 prohibition eliminates the v/orking days, approach the total would against enjoining state tax collections $32,300.00. 'i genu apprehension and is a basis for require any payment To ine and irretrievable loss. Union Pa testing sum such as a condition cific R. Co. v. Board Com’rs of Weld validity exaction, County, supra; Raymond Chicago if it not of does v. Un illegal Co., Georgia ion supra; itself make the tax that rea Traction Rail son, presents Banking heavy Redwine, at least such road & supra; bur Co. v. equitable Co., 87, den to decline Fox relief would v. Standard Oil 294 U.S. 55 that deny judicial altogether, 333, 780; be to review S.Ct. 79 L.Ed. Graves v. Tex parte Young, 123, Co., 144, 393, Ex 818, 209 U.S. 28 298 U.S. 56 S.Ct. 80 441, 714, 722; 1236; Kentucky S.Ct. 52 L.Ed. L.Ed. Dawson v. Missouri Dis Ry. 340, Tucker, Co., 288, v. Pacific Co. tilleries 230 U.S. & Warehouse 255 U.S. 961, 1507; 33 Thompson, 57 272, 638; S.Ct. L.Ed. v. 41 Terrace S.Ct. 65 L.Ed. Atlantic 197, 15, Doughton, 263 U.S. 44 Coast Line S.Ct. 68 R. Co. v. 262 U.S. 255; 413, 620, Beal L.Ed. v. Missouri 43 Pacific R. S.Ct. 67 L.Ed. 1051. This is Co., 45, 418, importance 312 61 for, U.S. S.Ct. 85 of critical L.Ed. here consider Indeed, any setting, recovery in such such where that suits likely Georgia clearly punitive would the so-called tax qualities, may, State Courts invalid, over whom enjoined, if we would have no it corrective powers, Regal Drug Wardell, the most 386, that a Federal Co. v. 260 U.S. v, City Atlanta, great Spielman See also ‘both Galfas 5 and immediate’. 931; City Cir., Dodge, 89, E.2d of Miami Motor Co. 193 v. Sut- Sales v. ton, Cir., 95, 678, 680, 1322, 1325, 5 181 -644. 55 E.2d L.Ed. S.Ct. 79 cited; 6. 28 U.S.C.A. 1341: “The district and cases v. court Beal Missouri P. R. enjoin, suspend Corp., U.S. 45, 49, 418, 420, shall not or 312 61 restrain the S.Ct. levy assessment, cited; 579, or collection of cases tax Wat speedy Buck, plain, under law where a v. son State U.S. remedy may 1426]; ¡the and efficient be had [136 85 L.Ed. 1416 A.L.R. Wil Miller, 317 State.” liams v. such U.S. courts ” L.Ed. 489. right (39 L.Ed. recovery un- say could is that the *” * * [584]). doubtful,7 Georgia least. der law is required, v. Dawson all course, That the suc- Of since we hold that Co., Kentucky large & Warehouse Distilleries license tax itself so cessive recovery the uncertainties about “The decisions great plaintiffs required so were not highest least it at the state left testing court of pay them as the means of paid money could doubtful whether so questions this Ordi- substantial over tax- at law nance, recovered equally that, have been under such it is true reasons, among payer, circumstances, they other because run have to did not paid money not have been further serious risk of substantial imprisonment compulsion or of fines for new of distraint and extended they or of of law to car- or under a mistake offenses were distraint successive ry that ‘if on the license settled activities without fact *. It is well payment doubtful, remedy This combination tax. at law be cognizance equity of real of the circumstances made the threat decline will not lasting damage genuine present. Wakelee, suit.’ Davis depends entirely upon petition alleging payment Recoverability doubt since a interpretation compliance tax unlawful reason with and fear prosecution Georgia Code, criminal was held insufficient. Revenue Com- Indemnity Ga.App. Royal Co., 1934, Alexander, Eibel v. mission 295, * “* Ga.App. denied recov ‘At 177 S.E. 187 S.E. *6 ery paid many years law, under threat of under of tax warrant and for oommon having statutes, protest no au of arrest thority from an officer at the time it; precedent York Life payment issue see New to to a condition * * 1936, Williamson, recovery v. 53 Insurance Co. under of a tax.’ Ga.App. 28, statutes, however, In Goodwin 182, 184 S.e. a stricter our state 1939, MacNeill, protest imposed, S.E. v. 3 will Ga. and a mere rule is Georgia Supreme 675, change 2d Court de from that suffice to status not * * paid recovery voluntary im payment of a fine to avoid *. There nied of a prisonment Georgia a general under sentence convic afford- is no which, appeal, recovery remedy taxpayer ing tion on was reversed. a a for Banking Georgia assessed, erroneously illegally Railroad & Co. v. Red or taxes 323, 321, wine, quoted except 342 U.S. [refer- as is hereinbefore augments doubt when a ring Georgia, L.Ed. 20- § Code of for, municipality is involved to the Geor 1007].” “ Attorney ‘plain, gia claim of a Georgia, General’s 20-1007 Code speedy remedy by “(3) payments; “Voluntary and efficient’” (4317): recov- payment suing Payments the State for refund after ery or other of taxes back.— “ * * * said, ignorance through The claims, of taxes” the of the made pay remedy, known, suit for refund after law, third ment, all where facts are or only applicable pay misplaced to taxes is confidence and is no and there directly prac- and amount artifice, deception, able State or fraudulent no by party, than of the total taxes less other are deemed 15% tice used controversy back, voluntary, and cannot be recovered Georgia hold urgent the ultimate Whatever and immedi- under made an unless per right uncertain, ing, necessity therefor, per- at least is or to release ate haps detention, pre- the circumstances property affected or to from or son payment person from “fear” made which the is or immediate seizure an vent prosecution, Piling protest “threat” of property. rather than at the time payer may expose change to risk of here payment the rule.” does not irresponsibility Atlanta, 1899, City of the individual financial 107 Ga. v. Hoke recovery collector of this small Clerk as tax denied S.E. liability 7,753) city, (population protest since paid and threat of taxes apparently personal repayment Mfg. levy Co. v. Dennison execution. Mfg. Wright, official, v. Dennison Co. Wright, not supra, 120 S.E. 156 Ga. possible right im dominant a factor apparently to recover indicated recovery requires portance payments since protest made under threat of money, collectibility Ship proceedings; Stewart actual Strachan but criminal Lewis, Dry Savannah, 1929, Co. v. Goods ping v. Co. L.Ed. 1135. much 147 S.E. creates Ga. enjom instituting therefore, basis was, defendants from substantial There Watson, prosecuting or against relief, proceedings equitable v. L. criminal A. F. Packing Co., Hynes petitioner supra; him in the event Grimes 1231; future should certain violate a City Council, Railroad ordinance Idaho Central Shields v. Utah Co., he contends invalid and uncon- Raich, supra; Toomer v. stitutional.” Traux Witsell, supra. equally simple The answer and is explicit language furnished have exer- District Court should Federal and considered Statute:2 cised its case and the merits determined “Stay proceedings. court unconstitutionality Or- validity or A court the United States reversed therefore The case is dinance. grant stay proceed- an in- and not for further remanded8 ings except in a court as ex- proceedings. consistent pressly authorized of Con- Act remanded. Reversed and gress, necessary or in aid of where jurisdiction, protect or to ef- Judge (dissent- CAMERON, Circuit judgments.” [Empha- fectuate its ing). sis added.] I. Since no one contends that this case is go along inability My ma- with the by any exceptions covered con- por- noting only by jority evidenced would be Act, tained the italicized this case could conclude that a dissent if I read, tion should be considered. So there episode. is here But what is an isolated categorical provision is a clear and step in a be but another done seems to grant “may a federal dem- this Circuit series of decisions onstrating junction stay proceedings in a state dangerous tendency to exalt unnecessary court.” go It would seem judiciary debase the the federal *7 majority further. But the here does performance efforts at states in their unequivocal language, not follow that legitimate important func- of their exception but creates an which the stat- self-government, tion of local history permit, ute does not and its II. specifically the court decisions under it condemn. question sim- here involved is a (1) The Georgia, “By

ple (2) one: Whether that enactment revision [the may through municipalities, 1948], Congress of its one and codification of made inter- beyond laws without prohibition its criminal enforce clear cavil that part away by judicial the federal courts. on ference is to be im whittled ** accurately forth the provisation. below set The Court in lieu of the framing 1 bankruptcy its exception the issue in state- pred facts of 265§ [the Congress 2283], ment: ecessor substituted a “ * * * organizer generalized covering a labor union phrase excep alll * * * of Elec- Union International for the tions to be found in federal * * * Workers, trical, any event, and Machine Radio In statutes. gress Con brought Washington, C., justification D. has no CIO of left for its rec against ognition of Car- this action now. This is not a statute con * * * Georgia seeking general rollton, veying policy to appro a broad agent reversed to as both Denton ease reflected the Ordinance 8. The and afli- city might Court on remand The davits of IDE. officials af- indicate But, whether the Ordinance determine firmative answers. generally, as on the have to merits express opinion applies as such or would en- the Union we no on this. distinguished Carrollton, it, Ga., D.C., an individual from Denton v. title concerns, F.Supp. employee local concepts re- 302-303. principal- caption, 2. 28 U.S.C.A. 2283. § The lief. 4S§. Legislative en-- Pleas Ohio to of Common Court application. in. priáte ai hoc Union, picketing join fac- from the- expressed in a clear-cut its policy is here Union, however, specifically The only by tories and stores. qualified prohibition ” ’* * * in the District Court its action instituted exceptions..' defined seeking, enjoin of the United States giving Court, spoke Supreme So prosecution court- suit. of the state Amalgamated subject in last word on the motion that Court denied the Union’s But Clothing Richman of America Workers ground it had on the further: Court stated Bros. The Co.3 jurisdiction 2283.-, Court no § the series need not re-examine “We Appeals for the Sixth Circuit .af- Title decisions, prior the enactment granted firmed,7 and the Code in- 28 .of the United opened opinion certiorari.8 It recognize implied ex appeared, Richman with these words: prohibition ceptions historic to the Anheuser-Busch, “In Weber v. state against with interference Inc., 480 [99 Toucey proceedings. New

judicial See Monday 546], last on decided Co., Insurance York Life Missouri writ certiorari to the [Emphasis add 100.” Supreme Court, the. we considered majority carve does here Yet the ed.] en state court to improvi “by judicially exception out an aspect join which in one conduct any support there sation” based—if brought it within exclusive federal authority solely series "the of. — Taft-Hartley authority under rejected. thus decisions” Act and in a vio another constituted sweep Richman deci re-, The broad against lation of a state aspects ascribing n straint of trade. sion we In this case complete understood' prohibition can be whether, question have to decide the it, considering, in connection circumstances, under similar union Toucey case, supra, v. An and Weber open resorting it, to without by' Inc.,4 heuser-Busch, the Su discussed appellate procedures the State Anheuser In preme in Richman. juris eventually Court, Richman, Busch, before a week decided diction district court employer from a had obtained enjoin pursuing employer from per preliminary and Missouri- his action in the state court.” [Em striking injunctions em manent phasis added.] *8 Missouri, Supreme of ployees. The Court Recognizing that a state court suit Supreme Court the had affirmed5 indubitably result in eventual granted The decisions certiorari.6 holding ju- that the state was without on reversed the were Courts Missouri having risdiction held in Anheu- so [it juris groünd had no court' that the state ser-Busch], Supreme proceed-' the Court injunction grant because the diction nevertheless, Richman, ed in to hold cate- juris-. Corigress exclusive had conferred Congress gorically f had robbed eder-' that Relations Labor the National diction in enjoin state al courts of Board. proceedings, palpable court however the An- fact situátion —to identical the state court Thb forecast of the result of Richman, might in was involved in the decision hetíser-Busch suit be. “Under brought having' company may Anheuser-Busch, suit Inc., we Weber v. 452, 454, 75 S.Ct. 348 U.S. 3. 5. 364 Mo. 265 S.W.2d 325. composite quotation a The 600. is of.-disconnected, expressions 99 L.Ed. 638. taken from 6. 348 U.S. U.S., pages pages and 516 of 348 t 7. 1954, 211 F.2d 449. 454, 455 75of S.C . 813, 75 S.Ct. 99 L.Ed. 641. L.Ed. 546. assume cure relief * The [Emphasis added.] * * question [*] that [*] through [*] outside enjoin whether conduct state state a federal in attempt proceedings.” controversy authority. se- same his union claimed that fine of ment or both for nance all of penalty carrying $100.00 city’s prescribed ordinances. moderate its sixty days’ violation, being the for violation penalties Denton — ordinance- imprison of and! of Amendment Fourteenth violated the giving negative answer to that In ought the Constitution.10 But we speculated Supreme question, import question The reach that here. Congress intended, in its revision point collision be ant involves before us by the Code 265 of Judicial former § courts, and cam tween state and federal statutory put in § enactment be, ought be, ques decided on teachings supra, Toucey, form the procedure tion of alone. Supreme Court had discuss- wherein the Certainly exceptions court-improvised at the ordinance here involved ed the deary open length ex- is not to constitutional at- had indicated that those brought by Supreme ceptions tack as that considered severe should be within Douglas Jeannette, limitations.9 87 L. authorities, (3) Even without by Ed. 1324. What there done was ques seem to me conclusive Supreme pat- Court furnishes an exact us, difficult for me to tion before it is tern for what the did in this Court below perceive why majority would be and a direct case condemnation what light tempted to intervene here majority opinion. does general Court’s attitude Pennsyl- Jeannette, The years little federal interfer recent towards vania, requiring per- had an ordinance prosecutions. ence with criminal engaged it,a son in solicitation within simple We are faced here with ordi equity powers possessed by Anglo-Ameri following quotation up 9. The is made part separated Toucey paragraphs can ad As of the delicate courts. from the justments required by federalism, pages 132, our decision at 140 and 141 of Congress rigorously U.S., page controlled the courts’ in their relation to the 62 S.Ct.: “Regardless influences various ‘inferior ** * guid shaped courts the states. The the enactment of 5 of the predecessor consideration in the enforcement [the Act of March Congressional policy expressed! purpose § 2283] and direction un- Campbell, Court, derlying provision proceedings Mr. Justice is manifest from Taylor Carryl, 20 How. its terms: in the state legislation 15 L.Ed. 1028: ‘The of Con courts should free from interference judicial gress, organizing powers injunction. , provision the. States, expresses duty much cir the United on its ‘hands exhibits face cumspection placing avoiding occasions for courts in the use off litigation stay the tribunals of the States and of ain of state court. the Union in collision.’ must We be1 *9 limits; scrupulous regard dealing in our for the “We are not here with a set- Congress decisions, within which has confined the' tled course of in erroneous authority origin of the courts of its own crea but around which substantial' 1 [Emphasis supplied.] Only tion.” a re- terests have clustered. cent few majority permits itself, episodic wrongfully, 10. The utterances furnish my opinion, exception in to be drawn into a con.- tenuous basis which for argument. explicitly of the of sideration It seems merits this we are now ashed to sanc- me, moreover, justification may argu- that the tion. Whatever be for there majority opinio» turning past forth in the ment set error into law when very convincing expectations thereby because the be is license' reasonable Georgia justification law, defeated, fees recoverable under can are no such be fact, a-proeedural Witsell, urged under Toomer v. of doctrine on behalf rigor' judicial power infra, removes the of the in the distribution of be- license- ** a consideration which fees as should be federal and state courts. tween instance, weighed determining , the wisdom of “Section is notmn isolated .equity of-withholding federal intervention. from .the courts power procure be- “The states before reserved to the borders to license ginning activity. pro- provide under Failure to the Constitution to such an fine, moderate determination cure license carried a controver- for of accompanied by imprisonment may sies in if the fine their courts be restricted by only paid. group were not A of Jehovah’s district courts federal legisla- compliance Congressional with obedience to Witnesses found Judiciary conformity of tion in ordinance tenets inconsistent with the religion it. Article their observe and refused to Constitution. Con- city gress, by Upon being importuned by legislation, adopted offi- its policy, approaching the cials to refrain from with certain well defined statutory leaving gen- city, exceptions, they residents decided city erally a mass infiltration of the state courts the trial brought arising into its criminal one hundred Witnesses cases under state subject laws, by ordi- confines Court to solicit defiance review questions police nance. unable force was involved. cope de- fire and the the situation Twenty-one partment was called out. person pros- “No is immune from were arrested and some convicted good alleged ecution in faith for his the ordi- state for violation courts imminence, criminal even acts. Its nance, affirmed were which convictions though alleged be in violation of by Appellate The Su- Court.11 guaranties, constitutional granted preme to the certiorari Court ground equity since relief Pennsylvania Superior Court12 constitutionality or lawfulness promptly convictions13 reversed or ordinance on holding city violated ordinance prosecution de- is based United the First Amendment of the readily termined the criminal States Constitution. injunction. case as an in a suit for * * * some of After initial convictions pros- Where threatened brought action in the Witnesses ecution al- state officers restrain Court to United States District leged law, the violations of a state the ordinance14 the enforcement state are the final courts arbiters entry en- of orders which resulted meaning subject application, joining The Court its enforcement. only this Court on fed- review Appeals Third Circuit reversed15 for the grounds appropriately eral asserted. granted certiora- and the Hence the arrest the federal the action of the ri and affirmed processes courts of the crimi- ground Appeals17 that “we find on the states, law nal within the and the ground supposing that the inter- no questions determination of crimi- court, order vention of a federal constitutional, rights, petitioners’ liability secure law nal necessary appropriate.” will be either equity, court of are to language, Here is some the Court’s showing supported on a of dan- page 163-164, pages at injury great ger irreparable ‘both * * * 880: and immediate.’ Pa.Super. 175, 27 11. 149 A.2d Brookville, Borough Pa., D.O.W.D. *10 F.Supp. Pa.1941, 30. 39 660, L.Ed. 63 S.Ct. 87 12. 318 U.S. 1125. 1942, 130 652. 15. F.2d Pennsyl Murdock v. Commonwealth 13. L.Ed. 16. 318 U.S. 87 vania, 1943, S.Ct. 319 U.S. 63 1125. L.Ed. 1292. 87 Douglas Jeannette, Jeannette, Douglas 319 17. v. D.C.W.D. v. 14. Pa.1941, F.Supp. 1324. S.Ct. L.Ed. and cf. U.S. 63 87 Reid 39 with this Justice Holmes dealt “Mr. rec- appear the from not “It does appeal- especially problem in a situation been petitioners have ord that ing: States ‘The relation of the United injury other threatened with to States every and the Courts of the United crimi- to than that incidental States lawfully the Courts brought the proceeding nal occupied very has matter a delicate good faith, court a federal or that judges thoughts withdrawing the statesmen deter- equity by disposed years and cannot be hundred guilt state from the mination justice summary statement petition- rightly afford courts could requires tape inter- me cut red they could any protection which ers ” ap- vene.’ by prompt trial and not secure peal pursued [Em- Court.” phase this well This discussion phasis supplied.] upon be concluded a further draft power tect prevent tice. Stefanelli v. what Appeals enforcing junction consin rights volved, by ened, sequences in state criminal ing,18 although ceedings District Court in Wisconsin 72 S.Ct. at stitutional Court later reversed decision erations the transcendent desire of the diciary guage Jeannette Citing affirming Supreme merely how much more was here invoked are not used, upholding to avoid for the Third limit federal courts in restrain- proper sphere once state courts: of a federal court to their criminal law. granting alleged page 121, prosecutions merely the Wisconsin doctrinaire alertness was Jeannette a decision Court to begun. exercising it Supreme interference with U.S. at further a state proceedings struck Minard, 1951, trespassing upon to be certiorari L.Ed. 138. The lan- same statute.19 further cogent ** support Circuit20 case, “If manifest down as pages 122-125, judgment called the States granting * are illuminates federal its action intervene equitable Court of The con- Supreme review a proceed- upon by denying of Wis- concern prevent they threat- consid- [*] uncon- injus- of a pro- During pro- [*] ju- in- language federal the state on the tion of more than cation are the lay procedures tected argument it ‘gap’ lative courts rights gress, Law, appealable, if minished effective Thus, “The “The will main federal been Court. With permanent necessarily complained of federal so scheme, not until will go wrong. that entire rights, the lower federal procedure temporary assumption courts were not judicial union if issued is relied appellate process the state establishing Richman: proceeds half of court can over federal argument runs, subject but activity may lost. on the rights undercut the systems limited of is will period, injunction our not, time-consuming. But opportunity adequately courts, is that federal that the given general intervene, de- depended to review history adequacy under Ohio during exceptions, impatience which the petitioner questions. courts, the vindi- is issued available appellate jurisdic- if enforce unless be di- which lower legis- Con- pro- up- Employment versing 18. Re St. John Wisconsin decision of Wisconsin Board, 1951, Employment reported lations in Wisconsin Light 95 L.Ed. 386. Board v. Milwaukee Relations Gas Co., 547. 258 Wis. N.W.2d Association, Amalgamated etc. 19. v. Wis Board, Employment consin Relations F.2d re- *11 (4) majority grossly opinion inadequate The cites a multi- that áttacks as so cases,- inspection contemplated tude of it but an them could not have been give by Congress. prohibition will of thém demonstrate none that convincing continuing support action to- the taken 2283 is bid evidence of begin with, courts, To reen- it. not one of its cas- the state confidence es was decided under revised direct statute a desire to avoid' forced 1948, most of cáses are old between state and Conflicts (cid:127) * * *' relationship ones and bear no remote courts. Suprémé the attitude of the ex- as “Misapplication of, this Court’s emplified in such cases as- Richman and opinions state- is not confined part, For most Jeannette. litigation delays courts, nor are iipon the cases relied off on went other ** - (cid:127) , peculiar There to them.- important points related, all, if at may added an element also be only incidentally prosecu- to criminal competition -and con féderal-státe tions.22 may. be trusted to ex flict which be hand, On the other the cases in- where complicate, simpli ploited junctions against prosecu- and to state criminal ' existing fy,- legion.23 difficulties.” tions have been denied are quotation arise, if, 21. The is taken from 348 U.S. ble condition would whenever emphasis page 456; charged violating 517-519, at about 75 S.Ct. to be with freely supplied. law, permitted state one were validity by original pro- contest an example, Georgia 22. For R. & B. Co. v. ceeding on some federal court.” 299, Redwine, 1952, 323, 321, 342 U.S. 72 S.Ct. Grange inAnd Massachusetts State 96 L.Ed. prosecution did involve a crim Benton, 1926, 525, 527-529, all, inal ‘but under arose Mr. 71 L.Ed. Jus- S.Ct. tice injunctions covering against' the statute language: used this “But it Holmes státutes, tax which' withheld important rule, also went on the which right injunction cases those injunc- emphasize, desire to that no we “ remedy ‘plain, state, was where ought- against tion to issue officers of a ” Hynes speedy efficient.’ v. Grimes authority with State clothed to enforce Packing Co., 1949, 337 U.S. question, the law in sonably sary in a unless case rea- did not involve state 93 L.Ed. doubt and when neces- free from against Regional action, Di but was prevent great irreparable rector, Department Interior, * * * jury. upon the merits we think rights fishing in an res Indian involved plain argument it that too to need in Alaska. situated Toomer v. ervation upon grant injunction allegations an Witsell, 334 U.S. fly of this bill would be to in the face emphasis placed other on which, said, the rule as we have n controlling pros besides criminal factors strictly very thirilc we be ob- should Among right were the ecution. served.” regulate fishing in Carolina South And in Alabama Public Service Com adjacent waters, reciprocal dustry in Co., Railway mission v. Southern rights the state the United between 341, 349-350, regula with such in connéctioni Vinson 96 L.Ed. Mr. Justice used , imposition tions, fee license “Equitable language: this granted only relief hun one non-residents Court, when' the District imposed on residents. that dred times its sound discretion exercised that, held where ease it was in that Even rightful ‘scrupulous regard for the inde gave right re the state governments pendence of state paid pro any exactions back cover should at all times actuate injunction test, not lie. courts,’ that is convinced asserted will, preserved except - purpose good federal by dis- cannot be served No ‘extraordinary granting length, cussing relief but it is others at eases, noting that, in other lan- in the federal courts.’ Con worth strong sidering public equally guage as hereto- interests ‘few have a n higher quoted of used. claim the discretion has been For exam- fore Boykin, 1926, ple, federal chancellor than the avoidance Fenner policies,’ with state needless friction comity govern usual must rule said: “An intolera-

493 deferring business, activity established but to an (5) rule of This absolute uniformly, plaintiffs upon, intended to embark did followed has been state courts “ by case, not demonstrate immediacy ‘the imminence and this Court. present until the ” establishing proposed the law enforcement’ decisions two The restrained; (2) Sutton, such could City be that Circuit, the of Miami in this prayer declaratory inclusion of a Galfas v. re- Cir., 181 F.2d 5 not, anywise, lief did in relax Atlanta, 193 F.2d “the re- City Cir., 5 grant upon propriety strictions the every phase the case now cover by injunction the federal court of an before the Court. prosecutions restrain the institution of by plaintiffs an effort involved Sutton municipal penal for violations of state or Court to District United States in the enjoin laws”; punishment by (3) that fine by of Miami the enforcement greater imprisonment which was covering jewelry auc- ordinances of its justify that involved did than here tions, attacked as ordinances were which equity intervention. the Fourteenth unconstitutional charge Incidentally, majority opinion that the the here Amendment city threatening entirely, judg- my arrest misses mark were officials dwelling high ment, upon employees plaintiffs of their license and all provided complied. they trial Court fees ordinance now be- unless granted fore the Court. It would have motion to dismiss made no overruled and, upon appeal had, injunction if Denton temporary difference and his union ordering altogether reversed, terms, City, been excluded we quoted planned lay complaint We from their activities. It be dismissed. power begin within copiously v. Missouri Pacific their and choice Beal from Corp., 61 U.S. the activities covered the ordinance Railroad strongest fees, (probably paying of without the license in which 85 L.Ed. 577 only mentioned cases event the risk involved would Court have imprisonment above) intervention to been fine or the effect that contained justified entirely prosecutions can in the ordinance. The test lies arrest state rigor exceptional circumstances and reasonableness of the in most showing punishment.24 recently clear terms We injunctive necessary irreparable prevent in- sanctioned relief is jury; en- holding ‘“in the exercise forcement of an unconstitutional ordi- guides discretion, impossible sound nance because it was plaintiff equity, constitutionality by of courts of scru- to test its determination right- regard violating pulous for the reason that such must be had it vio- governments independence required participation lation ful of state oth- ” ers, pos- which it admitted could not [181 F.2d 649.] sibly be obtained.25 None of diffi- reversing In decision the lower present culties are here. Court, principles we established govern these facets of the case us: Galfas involved attack in before the Fed zoning (1) injury relating, Thát an eral Court on a ordinance of to an equitable Sutton, discussing Indeed, the exercise of 24. while feature, quoted District in this case. What- we celebrated state rights appellee may ever have are ment of Mr. Justice Holmes Nash v. pursued through States, courts.” [Em- United U.S. 33 S. phasis instance.] each added Ct. 57 L.Ed. to the effect that every day And see Beal v. Missouri Pacific R. men had to choose whether they Corp., penal U.S. violate laws and suf 577; Boykin, consequences though Fenner involved even fer the consequences. might of those death be one Georgia Supreme decision, Mayor, etc., Baxley, 1954, Staub v. Houston v. James K. Dobbs Co. Cir., Dallas, Inc., Ga. S.E.2d F.2d 428. *13 rights plain- and ecution the civil owner that title of Atlanta the jeopardized group tiffs would without property of Jeho be in- and a certain junction were not sufficient to warrant to erect who desired vah’s Witnesses meeting on the halls tervention federal courts. There churches maintain They presented pieces property. is no feature which here the several alleged upon complaint de not decided in the Sutton and Galfas pitched their cases, presented equal protection the and each of cases those nial of stronger assembly and wor á claim laws, for intervention than freedom upon present speech, a vio the one. ship, freedom Rights statutes.26 of the Civil lation principles In obedience the estab- threatened with was confronted Galfas lished in from these cases and those the plain prosecution other the criminal discussed, the above humiliation, subjected to would be tiffs present below in case the dis- good oppor will, disgrace, loss of complaint missed the and denied the in- giv tunity worship were unless relief sought. junctive put relief To the Court en. using can, in error in thus its discretion injunction trial Court denied therefore, way in no other construed using affirmed, part lan- this and we changed saying than our that we have guage F.2d [193 934]: principles minds as to the involved and will whether not follow cases heretofore de- [of “The determination now, standing, involved cided and should until without issue] challenge of ab- the ‘doctrine or modification. consideration appropriate federal to our stention courts, whereby system federal III. “exercising discretion,” re- a wise delegated powers (1) “The to the authority their because strain Constitution, United States nor rightful regard “scrupulous for the States, prohibited it to are re- govern- independence of the state respectively, served to States or to working and for the smooth ments” people.” judiciary.’ of the federal These words of Tenth Amendment Appropriate nature was the my opinion, should, kept constantly immediacy ir- of the claimed every person holding a before commis- injury, reparable the existence government. sion from the federal This justify such re- essential to which is has, through years, Amendment been straint, policy and the established considered the axis which our en- chooses Courts as the system revolves; tire constitutional adjudication preferable forum gives vitality sustenance and heart question whether local statutes organism; to the whole the balance Constitution, the Federal offend functioning steady wheel whose insures courts, equally with since working of the entire the smooth mecha- charged courts, with are federal duty nism. safeguarding constitutional and, system rights, our dual course would be calculated Such government, have authoritative lurking dispel too the idea often meaning say construction and on the functionaries that shadows are [Emphasis'add- statutes.” of state superior some sort of wis- endowed ed.] virtue; and would nourish dom declaratory federal and state officials reiterated that relief notion are We proving privilege of justification equals them- was not for relaxation servants, working general rule, the fact consecrated and held that selves pros- welfare. city had threatened common authorities Specified 47 and 49. as 8 §§ U.S.C.A. single judge power requires had the proportion sense A true enjoin a state officialfrom action where keep in mind that the that we acting adoption the official was under a state law prior to the existed Union *14 body. or an order an were of administrative and Constitution of possessed Federal the language The of 28 U.S.C.A. 2281 so sover- of the attributes of all declaring unequivocal: and at- is clear of these eignty all have retained and except those surrendered tributes interlocutory permanent “An or government, federal to the injunction restraining Constitution enforce- the by the people by America but of the ment, any not people operation or execution of states; that the the several by restraining of statute State the ac- own their to order have States any tion of officer such in of State people govern and their own and affairs or execution of such enforcement spheres ex- and areas supreme all in by are or of an order statute made an to the committed cept thus those or administrative board commission that we government. also It is vital acting statutes, under shall pow- police aware that be ever granted any should by not district court sovereignty, and is of an attribute upon ground er is possessed judge or thereof by natural en- by the States unconstitutionality of such stat- grant by writ- and dowment application ute unless the therefor general Constitution, and that by ten and is heard determined a district lim- territorial police powers within the fudges three under sec- belong fed- to the do the States [Emphasis its tion 2284 of this title.” government; and that eral added.] Court) Supreme have (except the courts nevertheless, That statute has in a Congress has only as such Circuit, in series of cases recent this been upon them. conferred investing single construed as judge district grant power generally injunc that openly stated and is It sight whenever the statute lost tions have been principles definitely assumes to the state officer act is in his years, have been or recent Thoughtful opinion clearly peo- sole unconstitutional. attrition. weakened exactly Congress deeply prohibit That what concerned are ple have been language By plain used, perspective and most ed. Con loss this over something gress away intended to take from should one everybody feels power every- is, man the decide it, whether state most about done —that unconstitutional, statutes were and to judges. There is to me except body lodge judges. power tendency three extremely disquieting to de- change casuistry No can amount States, powers and their their base meaning of the statute so as to invest it of deci- courts, series manifested meaning lately given with the present it in this Circuit, to which the in this sions Circuit.27 belongs. one Supreme Court had tendency The declared un- this (2) Illustrative Congress equivocally what meant years given handling to cases recent decision in Stratton v. St. made attacks have been Railway Co., 1930, Louis Southwestern constitutionality of State statutes. 10, 14-15, 75 L. dignity of deference Out 135: Ed. caution that an abundance “ * * * * By functioning hampered not be the statute should their sought Congress Congress long cause, to make inter- sufficient without interlocutory injunction principle ference ago that no established Cir., Rippy, etc., Supervisors, g., 233 F.2d See, see also Brown v. Board of e. Lucy Adams, 796; Tureaud, Cir., 1955, D.C.N.D.Ala. v. 225 F.2d F.Supp. 235, Cir., case, affirmed Adams 226 F.2d and same Lucy, Cir., F.2d 619. Cir., 228 F.2d legis- risdiction, judicial not one discretion with the enforcement state equitable adequate [Empha- matter consideration.” lation a for' hearing sis deliberation which added.] full composed presence a court never Court has uttered provided by judges, the stat- three tending justify present a word * *” likely ute, secure. procedure permitting statutes [Emphasis added.] judge, be stricken down one and the Again, Telephone in Cumberland & .practice in effect in this Circuit is one Telegraph Louisiana Public Serv Co. v. origin of local and invention. *15 Commission, 1922, 212, 260 48 ice U.S. (3) Following brushing trend this of 217, 75, 76, L.Ed. said: 67 the Court S.Ct. congressional the aside scheme for in- legislation was enacted for the “The suring by deliberate action federal courts taking away purpose the manifest dealing earnestly in officials state power single judge, a United States asserting honestly and their up- reliance * * * interlocutory injunc an to issue statutes, three-judge on state court, a against execution a state stat tion pursuant request convened to the of the * * * state on the ute a officer parties, recently dissolved itself and com- ground unconstitutionality of the federal judge missioned-one to hear a case in * * * wording of of the statute. The which such reliance was asserted.29 This Congress no doubt that the section leaves spite was done in fact seeking by provisions ex industria was staking state officials were their reliance interlocutory in to interference make part upon passed in statutes Louisiana junction federal court with from a 1954, upon prin- based constitutional legislation regu of state enforcement ciples presented not theretofore to the execution, larly and course of enacted (cid:127) Supreme Court or declared invalid or adequate hearing and the a of the matter by any unenforceable other court.30 The presence deliberation full opinion Per Curiam rendered judges, one whom should three three-judge court based action likely Judge, to se was Circuit Justice parte Poresky, Ex 54 S.Ct. improvident prevent It was cure. 78 L.Ed. same case on which single injunctions by granting of such by-pass the other 28 efforts U.S.C.A. unnecessary judge, possible con and the seq. 2281 et have been bottomed. § authority federal and state flict between * -* * not, my opinion, always deprecated. tend, This That case does slightest power ju- statutory degree, question to sustain such further discussion of 34 58 L.Ed. And see the Supreme question au- additional The citation of doubtless Court discretionary my have dissent Board of Su- drastic and denied the thorities Tureaud, three-judge pervisors, 225 F.2d at writ of if etc. v. mandamus “scrupulous regard seq. page had exercised * 440 et * * rightful independence Board, Parish School 29. Bush v. Orleans supra, governments” of state mentioned F.Supp. 336, D.C., D.C.1956, and cf. given and had the State Louisiana the F.Supp. 337; motion for leave to “adequate hearing the full delibera- for Mandamus denied Petition file the-presence judges tion three Supreme in 351 Court U.S. likely to secure.” was denial of mandamus ex 854. This case, In well as the others which opinion presses on the of the no merits lodged illegal power judge, in one have presented. question United States Alkali been, collision 'between two States, Export v. United Ass’n thought schools as to -constitutional L.Ed. 325 U.S. 1554; Agoston rights construction, but between the v. Commonwealth convenience states Pennsylvania, U.S. S judges. . . . 619; United Ct. Shubert, . g. .17:81.1, e. See L.S.A. West’s 30 parte Roe, Ex L.S.A. Statutes. Revised brought dency Poresky of a state court suit which had suit action. questions identical were involved and other officials be- the Governor parties tween some of the same restrain enforcement of Massachusetts to already proceeded judgment compulsory which had lia- automobile state’s bility and had declared District laws constitu- laws. The same insurance granted declining injunction against complaint, tional and dismissed the court, violation,32 three-judge their because the District Court of assemble judges, judge dissenting, Supreme three proceeded held in a number with one Court had system not un- declare the of cases' that such statutes were whole Judge grant laws also and to constitutional. The District unconstitutional junction against apply. 2281 did not That held that their enforcement. The § holding Poresky plainly evidently correct. District Court was there was trying destroy statutes, persuaded by (fn. much admonition designed solely protect supra) while 2281 is to the “ ‘ guiding statutes. effect that “the state officers and state considera- ’ ” Judge put Poresky’s suggest tion” “ ‘ District an end to in such matters would *16 statutes, circumspection avoiding effort to strike down the state “much in oc- holding effort, placing that such the casions for the tribunals of the If, circumstances, was frivolous. instead States and of the Union in colli- ’ dismissing complaint, ”; the sion” the District nor did find it itself deterred Judge language had entertained it and had en- the of Mr. Justice :33 Holmes “ joined the enforcement of the state stat- ‘The relation of the United States and Poresky’s behest, utes the situation the Courts of the United States to the paralleled would have that under dis- States and the courts of the States is a here, certainly very cussion occupied delicate matter that § thoughts judges have condemned such action. the of statesmen and ” years a hundred *.’ Judge’s upholding In the District rul- ing Poresky’s Supreme case, noting in passing Court It is worth in that the right single judge three-judge court, discussing sanctioned to in the sub- inception ject “Comity” opinion, halt at its a frivolous attack on sup- in its is not constitutionality ported by of a state law. authorities cited in Note 11 Supreme justification Court did not even proceed- hint that a as for its action in single judge spite pendency, had the to en- in of the at an ad- stage, tertain such an attack and to strike down vanced of the state court suit. The calling judges only law without in two of the one five eases cited which in- precipitate to insure that ly J.nd unseem- volved a situation where a state court deroga- pending action should Beebe, not be taken in suit was was Wilson v. D. rights states, tion of C., F.Supp. in that case the Unit- Congress pains was at such suspended to pro- surround ed States District Court safeguards ceedings the meticulous 2281. until the state court concluded its case. (4) Another recent instance of disre- gard rights thing for the e., states afford- This did the same —i. three-judge ed pendency decision of a court declined to act because of the nullifying certain ordinances of the of the state court suit—-in Niehaus v. Montgomery Magnolia Textiles, Inc., Cir., 1949, statutes the State relating segregation although Alabama of F.2d the federal action was passengers begun on common carriers within before the state suit. And our cf. Notwithstanding pen- the state.31 decision in Central R. Illinois Co. v. Bul- D.C.M.D.Ala., Gayle, 31. Browder v. D.C. Which The one Constitution? which has M.D.Ala., F.Supp. 707. the Tenth Amendment as its core? Here, customary, Douglas 32. as is stress is laid Quoted of Jean upon peculiar province nette, supra of Federal [342 U.S. rights. supra. 122], Minard, Courts to enforce constitutional from Stefanelli v. is, opinion, Court, my loss Cir., 1950, to evince a lock, and the F.2d teachings ignore perspective, holding in Railroad Court’s history Co., of and to strike a blow at our con- Pullman Texas v. Commission of system point. stitutional at its most vital duty oft-quoted Ours is the stern hearken to the In a situation such states, upon voices of “as less applies, [if] earnest restraint dictum “The sym- shrill”, preserve in order is our self-restraint.” our action own metry, proportion delicate and the Ladner, Again, in Howard v. D.C.S.D. sovereignty balance which state Miss.1953, F.Supp. a three- importance. basic crucial judge employ in- its was asked to History junctive combines powers require with the cases above officials of Congress register political discussed and Mississippi Acts treat- State of granted ed in them to admonish party. us to be over- not be That relief could persuaded by declaring unctuous voices the State statute of without claques, concatenate Mississippi coteries coddled Su- unconstitutional. The chanting had, Mississippi34 their preme in a well-rehearsed clichés permitting parties, the reverence all courts held that suit between the same process equal protection, question hold for due Mississippi forget tempt Nevertheless, tous Dis- bedrock constitutional.35 system our constitutional rests proceeded down to strike trict Court respect faith for the states and Mississippi issue a manda- statute and to rights. derogation their tory injunction *17 terms.36 his In Goodkin Lectures at Harvard University, 1955,37 Mr. Justice Jackson whether cases involved These stated, forget that, must not Comity ob- “We should be amenities bottom, fought the Civil was served, War over are be the states but whether respect constitutional dignity doctrine.” Then and ever accorded since, people the states and of this they under Tenth which are entitled Congress champi- Circuit have been the inveterate Acts Amendment and the self-government, rights ons of local Supreme Court and decisions govern of the states to themselves in the In each instance above discussed. daily intimate of their details lives question not relate wheth- involved did may liberty reality end that rights be and not of the indi- er the constitutional merely euphuistic concept. safeguarded, Ours should be involved viduals task, conviction, as inheritors of that merely should be the route which but guardians faith, of that to “strain hard” process. in the traveled to find in the Constitution and the Su- IV. construing preme it, Court decisions government in a the states role of sub- to cast means which Thus government aegis malign judicial may kept the central fiat ordination they supreme, minimum; patently are where at a areas unwar- reaching beyond gov- especially ranted encroachments of the federal given yet Supreme averted and ernment struction the sacred Howard, reaching merits, 214 Miss. without 34. v. record and Hoskins complaint and ordered dismissed. 59 So.2d 263. Howard, 1954, v. White subject holding final, That was 476, 98 L.Ed. 1067. appeal Supreme to the Court of States, utilized, which was not United Supreme “The in the American Judgment jvr therefore res University Press, p. System”, Harvard Angel Bullington, supra. Moata, v. It is stated Foreword that day several hours 36. The the United he worked promptly Judgment the Lecture from vacated the of his death on quotation District Court on the face of the is taken. rights preserved. It would of the states congeries tragic paradox if be a rights and cluster

which constitute

around Tenth Amendment should be crippled in the done to death even differ- basic

house of its friends. These impos- majority it make ences with the join in a reversal sible them me to my dis- reasons constitute the

sent. Rehearing Cameron, Circuit denied: dissenting.

Judge, America, STATES of

UNITED Appellant, SUTRO, Appellee.

Adolph G. Cross-Appellant,

Adolph SUTRO, G. *18 America,

UNITED STATES of Cross-Appellee.

No. 14588. Appeals

United States Court of Ninth Circuit.

7,May