EFTA00191587

GRANT I. UN 
Cite as 2'C F 
dering a hearing or in the scope or dura-
tion of a stay can be corrected by courts 
of appeals through the issuance of man-
damus. 
6 Moore, Federal Practice, 9 
54.10 [4], at 87 (2d ed. 1955). Here. 
however, appellant has 
of requested 
1 
such relief, see Zamore 
Goldblatt, 2 
Cir., 1953. 201 F.2d 738, t e stay was to 
continue only until the next motion day 
of the court in Albany, and the issue 
would doubtless have been settled long 
ago if the government had complied with 
the order to show cause instead of taking 
this appeal. 
The appeal is dismissed for lack of ap-
pellate jurisdiction. 
MOORE, Circuit Judge (dissenting). 
This appeal tests the regularity of the 
proceedings instituted by the taxpayers 
(referred to as "the taxpayer") to en-
join the United States Attorney from 
submitting to a Grand Jury any evidence 
of any crime whatsoever, or taking any 
other proceedings, against them. 
The 
injunction thus has the effect of enjoin-
ing pro Canto the Grand Jury in its time-
honored function of investigating crime. 
The reason asserted in the petition sup-
porting this drastic request is in sub-
stance, that, although "petitioner, either 
personally or through employees in his 
office, did make available to said (In-
ternal Revenue) agents all of his books, 
records and papers and those of his wife, 
including among others, daily log books, 
check books, bank statements, bank 
books, cancelled checks, stock records, 
books and papers," that he did not do so 
"for purposes of any criminal investiga-
tion." 
The taxpayer sought a return of these 
papers and an injunction against their 
use (and leads therefrom) by an order 
to show cause pursuant to Rule 41(e) of 
the Federal Rules of Criminal Procedure. 
This Rule permits a person "aggrieved 
by an unlawful search and seizure" to 
move the district court for the return of 
the property and its suppression as evi-
dence. Of the grounds specified in the 
Rule the only one possibly applicable is 
that "the property was illegally seized 
ITED STATES 
171 
24 143 MOP 
without warrant." 
The order was 
sought "to initiate this special proceed-
ing." It was issued ex parte on Febru-
ary 26, 1960 and enjoined the govern-
ment from submitting any evidence (re-
gardless of any relationship whatsoever 
to the material sought to be suppressed) 
pending the determination of the applica-
tion. Since the return date was March 
21. 1960, the minimum period of injunc-
tion was 24 days. The date of entry of 
an order after decision could have ex-
tended this period substantially. 
Simultaneously a motion was made. 
also without notice for an order pursuant 
to Rule 26(a) of the Federal Rules of 
Civil Procedure, for leave to serve notice 
of taking depositions of various govern-
ment agents prior to the expiration of 
20 days after the commencement of "this 
action." 
The affidavit supporting this 
ex parte "civil procedure" motion recites 
that "this action" is the order to show 
cause under the "criminal procedure" 
rule. Again without notice this motion 
was granted. 
On March 4, 1960, the court issued a 
further order to show cause "why an 
order should not be made dissolving the 
injunction" and vacating the first order 
of February 26th. On March 8th the 
court concluded that a hearing should be 
held and reserved decision on the motion 
to dissolve the injunction until the hear-
ing had been held. From the order of 
March 8th the government appeals. 
In summary, an order to show cause—
at best a motion under section 41(e) of 
the criminal rules—containing a "with-
out notice" injunction of 24 days or more 
simultaneously with its issuance is meta-
morphosized into a civil "action" on the 
basis of which another "without notice' 
order for leave to take depositions under 
section 26(a) of the civil rules is issued. 
Under what authority of law is this 
baffling procedure conducted? Certainly 
some legal justification must be found 
before approving the steps here taken. 
Despite the fact that no jurisdictional 
sanction is given in any of the grants 
specified in 28 U.S.C.A. §§ 1331-1358, as 
EFTA00191887

172 
282 FEDERAL REPORTER, 2d SERIES 
pointed out in Centracchio I Garrity, 1 
Cir., 1952, 198 F.2d 382, at page 385: 
"it has long been accepted that 
where evidence, obtained by an un-
constitutional search and seizure in 
violation of the Fourth Amendment, 
is in the hands of a United States 
attorney, a federal district court 
may entertain and grant relief on a 
petition, filed even prior to any in-
dictment, seeking a return of the 
papers or property unconstitutional-
ly seized and the suppression of the 
same as evidence. (Citing cases)" 
This court in Lapides I United States, 
2 Cir., 1954, 215 F.2d 253, at page 254. 
described a somewhat similar proceeding 
as follows: 
"Appellant's 'motion' was in ef-
fect a complaint initiating a civil 
action seeking suppression of evi-
dence said to have been illegally ob-
tained and to restrain the United 
States Attorney from presenting 
such evidence to the grand jury. 
The suit thus began before any 
criminal proceedings by the govern-
ment against appellant had been in-
stituted, and his appeal was there-
fore not from an interlocutory order 
entered in the course of a criminal 
suit. Accordingly, the order deny-
ing his motion was a final and ap-
pealable order." 
If the order to show cause be tanta-
mount to a civil action (and apparently 
the taxpayer would so regard it by seek-
ing to avail himself of the civil deposi-
tion rules), then the other civil rules are 
equally applicable. Federal Rules of Civ-
il Procedure 65(b) specifically provides 
that every temporary restraining order 
"shall expire by its terms within such 
time after entry, not to exceed 10 days, 
as the court fixes, unless within the time 
so fixed the order, for good cause shown, 
is extended for a like period or unless the 
party against whom the order is directed 
consents that it may be extended for a 
longer period." 
The language of this Rule is signifi-
cant. The restraining power of the court 
is restricted and by the words "shall ex-
pire" the order became self-terminating 
in 10 days, i. e., March 7th. No good 
cause for the permissive extension was 
shown nor was any extension granted. 
Therefore even if the injunction had had 
any effect under the guise of a tem-
porary restraining order between Feb-
ruary 26th and March 7th it could con-
tinue thereafter only as a preliminary 
injunction. The order of March 8th of 
necessity had to be an order "refusing 
to dissolve" an injunction. The fact that 
the court's memorandum-decision-order 
did not use the words "granted" or "de-
nied" is not determinative. 
The in-
junction was continued by the order 
and hence must be regarded as a refusal 
to dissolve it. 
The entire purpose of the temporary 
restraining order rule would be frustrat-
ed if it were allowed to be disregarded 
at will. Ten days was the maximum 
period during which the enjoined party 
was to be restrained without opportunity 
for appellate review. 
Over the years 
courts have become more and more re-
luctant to enjoin without notice; rules 
and statutes express this policy. The 
right of appeal from a preliminary in-
junction is a purposeful exception to the 
general rule requiring finality. 
Since 
"preliminary" by definition precedes 
"final," the presently imposed restraint 
must be preliminary because the order to 
be entered after any hearing will be final. 
Although I agree that an appeal cannot 
be taken from a temporary restraining 
order this limitation applies only to this 
type of order as authorized by law. The 
very "label" argument advanced by the 
majority cannot create an order which 
had no legal being after March 7th mere-
ly by calling it a temporary restraining 
order. 
The trial court states that his powers 
of restraint are supported by precedent. 
citing In re Fried. 2 Cir., 161 F.2d 453. 
1 A.L.R.2d 996: Application of Bodki 
D.C., 165 F.Supp• 25 and Lapides 
United States, 2 Cir., 1954, 215 F.2d 25 . 
EFTA00191888

GRANT v. OM 
cite vs 282 r 
Upon the appeals by the taxpayers and 
the government in Bodkin after a stipu-
lation by the taxpayers "to grant the 
government all the relief to which it 
could be entitled on a successful appeal" 
the appeal was dismissed as moot. How-
ever, the district court's judgment was 
vacated and the complaint dismissed. 
This court specifically referred to our 
expre 
isapproval of Bodkin in United 
States 
Sclafani, 2 Cir., 1959, 265 F.2d 
408. Examining the Bodkin case, a situ-
wion most comparable to the present 
case appears, i. e., a motion to suppress 
and restrain under Federal Rule of 
Criminal Procedure 41(e). depositions 
under Federal Rule of Civil Procedure 
26. 
The same grounds, in substance, 
were advanced, namely, that the original 
voluntary surrender of their books by 
the taxpayers for tax audit became in-
voluntary when subsequently facts were 
thereby disclosed indicating criminal lia-
bility. The hearing must have been in 
the nature of a full-scale trial because 
over 1,000 pages of testimony were 
taken. Bodkin,' expressly disapproved. 
does not furnish a precedent as to proce-
dure. Lapides, as here, was a pre-indict-
ment order to show cause. As this court 
on review said, "Nothing in said order 
suggested that the hearing thus set was 
to be a preliminary hearing only" (215 
F.2d 2.53, 256). Nor was any question 
there raised as to the nature of the in-
junctive provisions. 
As to the substantive law, whether the 
papers on which the order to show cause 
was granted be regarded as a Rule 41(e) 
motion or as a complaint in a civil action 
or even as a unique hybrid, they must 
possess legal sufficiency. Giving to the 
taxpayer's affidavit the most liberal con-
struction as a complaint and at the same 
time regarding the same papers as an ap-
plication for a preliminary injunction 
pending trial and final judgment of the 
issues there tendered, it fails to meet 
the legal requirements for suppression. 
Stripped of its conclusory assertions, the 
I. "See United Stings v. Schtfenl, 2 Cir., 
265 F.2d 408, which exPreally diup-
proves ►latter of Bodkin, D.C.E.D.N.Y. 
TED STATES 
173 
.24 tea ONO) 
taxpayer alleges that some time after he 
had voluntarily made available his books 
he was "shocked" when he was advised 
that as a result of the investigation crim-
inal proceedings might be instituted. 
that he had thought, as the agents had 
represented, that a "routine" examina-
tion only was being made and that the 
agents had never "implied or said that 
there was the remotest possibility that 
either fraud or criminal proceedings 
were under consideration." 
In Sclafani it was held that under 
quite similar circumstances "the failure 
to disclose the changing course of the in-
vestigation is not fraudulent or deceit-
ful" (265 F.2d 408, 414) and that: 
"A 'routine' 
tax 
investigation 
openly commenced as such is devoid 
of stealth or deceit because the 
ordinary taxpayer surely knows that 
there is inherent in it a warning 
that the government's agents will 
pursue evidence of misreporting 
without regard to the shadowy line 
between avoidance and evasion, mis-
take and willful omission. 
"'Surely defendant was aware 
that, if a "routine audit" revealed 
evidence of criminal liability, the 
agent would not ignore it merely be-
cause he was primarily concerned 
with 
civil liability. • * ' 
A 
statement that the purpose of an in-
vestigation is a "routine audit" is 
not the equivalent of a promise that 
only civil liability will be considered 
regardless of what the examination 
reveals. Nor would any accountant 
or businessnuti so understand it.' 
United States 
Wolrich, D.C.S.D. 
N.Y.1954, 119 F.Supp. 538, 540 
(Dimock, 
"Moreover it is unrealistic to sug-
gest that the government could or 
should keep a taxpayer advised as to 
the direction in which its necessari-
ly fluctuating investigations lead. 
The burden on the government 
105.1 . 165 F.Supp. 25." 
2 Cir., 21.14.1 V. 
2d 56. 
EFTA00191889

174 
282 FEDERAL REPORTER, 2d SERIES 
would be impossible to discharge in 
fact, and would serve no useful pur-
pose." 
he
same principle was stated in Russo 
United States, 2 Cir., 1957. 241 F.2d 
5 (Clark, then Chief Judge. Lumbard 
and Waterman, C. JJ.). 
The Fourth 
Circuit rejected a taxpayer's contention 
which the court stated as follows: 
"The contention seems to be that 
revenue agents who secure the con-
sent of a taxpayer to an examination 
of his books with intent to obtain 
evidence and use it In a criminal 
prosecution, are guilty of deceit un-
less they divulge their purpose, and 
that the obtaining of information in 
such a manner violates the Fourth 
Amendment and its introduction in 
evidence violates the Fifth Amend-
ment: and even if the examination 
is begun solely to ascertain the civil 
liability of the taxpayer and evi-
dence of crime is unearthed, the tax-
payer must be warned and given an 
opportunity to withdraw his con-
sent, or all information subsequent-
ly obtained is inadmissible in 
criminal prosecution." 
Turner
United States, 4 Cir., 1955, 222 F. 
926. 930. 
And in Centracchio I Garrity, 1 Cir., 
1952, 198 F.2d 382, at page 387, the 
Court said: 
"On the face of the petition in the 
present case, and certainly on the 
evidence offered by petitioner at the 
hearing before the district court, it 
is clear that the evidence in ques-
tion did not come into the possession 
of the government officials in viola-
tion of petitioner's rights under the 
Fourth Amendment. 
He volun-
tarily turned over the evidence, and 
made the disclosures, to the agents 
of the Internal Revenue Bureau, for 
the purpose of a determination of his 
income tax liabilities." 
In conclusion I cannot reconcile the 
result reached by the majority with the 
language of the opinion. If. as they say. 
"Our holding that the order here sought 
to be reviewed is not appealable does not 
mean that district judges have unlimited 
discretion to stay the government or its 
agents from presenting evidence to a 
grand jury pending a hearing on a mo-
tion to supress," how can the discretion 
be limited except by appeal? 
Assume 
that a judge disregards the 10 days' 
temporary restraining order limitation 
and grants 90 days. 
The restrained 
party has no other recourse than to move 
to vacate. A refusal to vacate continues 
the injunction. If this order is not ap-
pealable, the discretion remains "unlim-
ited." Add to this situation the ingredi-
ent that the supporting papers do not 
support as a matter of law. How can 
relief against an improper injunction be 
secured except by appeal? It is all very 
well to say what difference does it make 
whether matters are called motions or 
actions, preliminary, temporary, civil or 
criminal but far more is at stake than 
mere words. Just as on the sea experi-
ence has proven that a maximum of safe-
ty for all is obtained by the formulation 
of definite rules of navigation and ad-
herence thereto, so is it equally impor-
tant that the procedures specified in 
legal rules be followed. The opinion of 
Judge Biggs of the Third Circuit (a cir-
cuit which has rather taken the lead in 
strict limitation upon ppenlability) is 
most apposite. Sims 
Greene, 3 Cir., 
1947. 160 F.2d 512. 
ere the district 
court had disregarded the time provi-
sions of Rule 65(b). He said at page 
516: 
"It is settled that no temporary 
restraining order may be continued 
beyond twenty days unless the party 
against whom the order is directed 
consents that it may be extended for 
a longer period." 
Denying the motion to dismiss the ap-
peal and reversing the order, the court 
concluded at page 517: 
"In our opinion the restraining 
order now in effect in the District 
Court must be treated as a tempo-
rary injunction, issued without the 
consent of the defendant, in the face 
EFTA00191890

LIZZA AND SONS, 
Clips. an 1'. 
of his motion to dissolve it, and con-
trary to the provisions of Rule 52 
(a). It is clear that an appeal 
lies from 
temporary injunction. 
Deckert 
Independence Shares 
Corporation, 311 U.S. 282, 61 S.Ct., 
229, 86 L.Ed. 182. The appeal at 
bar therefore may not be dismissed 
and the order restraining the de-
fendant must be reversed." 
II 
Insofar as the 
cision of the Fifth 
Circuit in Connell 
Dulien Steel Prod-
ucts, 5 Cir., 1957, 40 F.2d 414 (tempo-
rary restraining order i ued after 
notice) differs from Sims 
Greene, I 
believe that the Third Circuit's interpre-
tation better follows the words and in-
tent of the Rule.' 
Follow' g the type of relief granted 
in 
in Sims 
Greene, I would hold that the 
order of larch 8th is an order refusing 
to dissolve an injunction and hence ap-
pealable. On the appeal I would vacate 
the stay order of February 26th as ex-
tended in effect by the order of March 
8th. I concur with the majority in their 
views with respect to the lack of suffi-
ciency of the petition because the law is 
clear that upon the facts therein alleged 
the taxpayer is not entitled to an order 
of suppression. In connection with the 
pre-indictment preliminary attacks upon 
evidence, which are apparently becom-
ing increasingly popular, it might be 
well to remember the words of a distin-
guished jurist (L. Hand, C. J.) in In re 
Fried. 2 Cir., 1947, 161 F.2d 453, 455: 
"It would be an intolerable burden 
upon the prosecution of crime, if it 
were possible to test in advance the 
competency of evidence which an 
accused, to say nothing of a prospec-
tive accused, might be able to show 
was likely to be used against him. 
The protection of the individual 
from oppression and abuse by the 
I. The recent ease in the nil 
Circuit. 
P ennsylvania Motor Tr. Amen 
Port of 
Phila. M. T. Asia, 3 Cir., Mk. VS F.2d 
031, is not to the contrary. There the 
D'ONFRO 
175 
Rd 175 MON 
police and other enforcing officers is 
indeed a major interest in a free 
society; but so is the effective pros-
ecution of crime, an interest which 
at times seems to be forgotten." 
LIZZA AND SONS, INC., Plaintiff, 
Appellant, 
Daniel A. D'ONFRO et al., Defendants, 
Appellees. 
No. 5571. 
United States Court of Appeals 
First Circuit. 
Aug. 18, 1960. 
Action by general contractor against 
contractor and surety for breach of al-
leged subcontract. 
The United States 
District Court for the District of Massa-
chusetts, 186 F.Supp. 428, Charles Ed-
ward Wyzanski, Jr., J., dismissed the 
complaint, and general contractor appeal-
ed. 
The Court of Appeals, Hartigan, 
Circuit Judge, held that where, after 
negotiations, contractor drafted a con-
tract and delivered it to general con-
tractor, who made deletions, without con-
tractor's manifested assent, and returned 
signed draft to contractor, contractor's 
subsequent compliance with general con-
tractor's request for a copy of the draft 
did not constitute acceptance of the 
terms. 
Judgment affirmed. 
unreal was argue.' and dismissed within 
the permissive period authorised by Rule 
00(b). 
EFTA00191891

384 
272 FEDERAL DEPORTEE, 24 REUSS 
Under I.R.C.1939, § 27200(1), (f), 
and (k), 26 U.S.C.A. § 272(a) (1), (1, k), 
the first notice of deficiency was clearly 
sufficient; and since timely filing is made 
jurisdictional, the Tax Court correctly 
held th 
it could not hear the petition. 
Galvin 
C. I. IL, 2 Cir., 239 .24 166. 
Cases c ed, such as 
ilek 
C. I. It, 
94 II .App.D.C. 97, 
F 
458, and 
Teel 
C. 1. R., 27 T. . 
5, affirmed 10 
Cir., 48 F.2d 749, 
not hold to the 
1
con-
trary, while Eppleit 
II
C. I. R., 7 Cir., 188 
F.24 95, and Cole 
. I. ., 80 T.C. 665, 
affirmed 2 Cir., gift F.2d 13, are not in 
point, since in each of these cases the 
first letter had ban sent to the wrong ad-
dress. 
The decision of the Tax Court Is af-
firmed. 
Harold R. STEINER, Appellant, 
v. 
Theodore ROOM United States Coinage. 
stoner for the Southern District of Cat 
tong* Central Division, and Robert W. 
Ware, United States Marshal for the 
Southern Disttiot of California, Appel• 
tees. 
James B. FREW, Appellant, 
v. 
Theodore ROME, United States Contmi9 
stoner for the Southern District of Call. 
torn* Central Division, and Robert W. 
Ware, United States Marshal for the 
Southern District of California, Appel. 
ken. 
Mime. Nos. 895, 596. 
United States Court of Appeals 
Ninth Circuit. 
Nov. 5, 1958. 
Accused, who had been indicted in 
the United States District Court for the 
Eastern District of Michigan for alleged-
t
mailing circulars in violation of the 
o.ne Mail Statute, and who had been 
arrested on the indictments at their resi-
dences in the Southern District of Cali
forma where proceedings for their re-
moval were instituted before the United 
States Commissioner, brought suits in 
equity in the United States District 
Court for the Southern District of Cali-
fornia against the United States Cont. 
missioner and the United States Marshal 
to enjoin their removal. 
The United 
States District Court for the Southern 
District of California entered orders dis-
missing the suits on the merits and or-
dered removal of accused, and accused 
appealed from the orders and made a 
motion in the Court of Appeals for a 
stay of removal pending disposition of 
the appeals. The Court of Appeals held 
that stay would be denied, on ground that 
courts of equity do not ordinarily re-
strain criminal prosecution. 
Stay denied and appeal dismissed. 
Injunctiat Ow105(1) 
Where accused was indicted in 
United States District Court for the 
Eastern District of Michigan for alleged-
ly mailing circulars in violation of Ob-
scene Mail Statute and were arrested on 
such indictments at their residences in 
Southern District of California where 
proceedings for removal of accused were 
instituted before United States Commis-
sioner, and thereupon accused filed suits 
in equity against United Statea Com-
missioner and United States Marshal in 
United States District Court in Southern 
District of California to enjoin removal 
of accused, on ground that circulars 
were identical with circulars which had 
previously been adjudged properly mail-
able in actions by third person against 
Los Angeles postmaster, and the District 
Court dismissed suits on merits and or-
dered removal of accused, and accused 
appealed to Court of Appeals and made 
motion in Court of Appeals for order 
staying removal pending disposition of 
appeals, Court of Appeals would deny 
stay on ground that courts of equity do 
not ordinarily restrain criminal prosecu-
EFTA00191892

STEIN= 
Cite a. in 
tions. 18 U.S.C.A. §6 1461, 1462; U.S. 
C.A.Const. Amend. 1. 
Brock. Fleishman & Rykoff, Holly-
wood, Cal., for appellants. 
Laughlin E. Waters, U. S. Atty., Rich-
ard A. Lavine, Jordan A. Dreifus, Ant 
U. S. Attys., Loa Angeles, Cal., for appel-
lees. 
Before POPE, HAMLET and 103-
ELSCII, Circuit Judges. 
PER CURIAM. 
The appellants have each been indicted 
in the United States District Court for 
the Eastern District of Michigan for al-
legedly mailing circulars in violation of 
the "Obscene Mail Statute", 18 U.S.C.A. 
1i 1461 and 1462 as amended August 28, 
1958. They were arrested upon these in-
dictments at their residences in the 
Southern District of California where 
proceedings for their removal were in-
stituted before the United States Com-
missioner. Thereupon each of them filed 
a suit in equity in the District Court for 
the District last mentioned against the 
Commissioner and the United States 
Marshal of said District, seeking to en-
join their removal. The grounds stated 
for the injunction sought were that the 
circulars they were charged with having 
caused to be delivered by mail in the 
Michigan district were the identical cir-
culars which had theretofore been ad-
judged properly mailable, and whose 
mailing was held protected by the First 
Amendment in certain actions previous-
ly brought by one Toberoff against the 
Los Angeles postmaater.1 Appellants al-
leged in such suits in equity, that the 
judgments in the former actions had 
finally adjudicated that the circulars were 
properly mailable, that the indictments 
I. Appellants alleged in their respective 
complaints that after these lodgments 
had beat lead& they had purchased the 
business of the concern, which had bean 
operating them at the lime the post. 
muter had attempted to atop the mann,: 
of the circulars out of width those ac-
tions arose. We do sot' reach the 'mos-
don whether these Weiland were la 
F.td—te 
y. HOOKE 
S85 
/Idea 
now pending had been sought only to 
harass the appellants, that the District 
Court in Michigan was without jurtsdic-
tion to try appellant'', that the Govern-
ment is estoppel by the rule of res Judi-
cats, and of estoppel by judgment to 
prosecute appellants for mailing the cir-
culars, and hence the removal should be 
enjoined and prevented. 
The court below dismissed these suits 
on the merits, on the ground that appel-
lants had an adequate remedy at law. 
Thereafter the court below, acting 
through another judge, ordered the re-
moval. These appeals were taken and 
now appellants move us to order a stay 
of the removal pending disposition of 
the appeals from the orders dismissing 
the equity suits. 
Appellees, in response, show that ap-
pellants have given bail bonds on remov-
al calling for their appearance in the 
Michigan District to answer the indict-
ments there. By that procedure, appel-
lees say, appellants are now under obli-
gation to respond in the Michigan dis-
trict, and no officer in the State of Cali-
fornia has any further function to per-
form in connection with their removal. 
Appellees move to dismiss the appeal as
(1) moot, and (2) frivolous. 
We deny the stay upon 
those 
growl 
nab-
cif 
sous to
 discussed in Beal 
Mis-
souri Pacific R. Co., 312 U.S. 6, 61 
S.Ct. 418, 420, 85 Ltd. 677, namely, that 
"courts of equity do not ordinarily re-
strain criminal prosecutions." 
While 
that case dealt with an attempted re-
straint of state prosecutions, we think 
the quoted rule is equally applicable to 
restraints of federal prosecutions. While 
great inconvenience will result from ap-
pellants having to defend in Michigan, 
yet, as in the case cited, there is no show-
ing at this date, and obviously could not 
sufficient privity with the original Parties 
so ite to permit application of the mlea 
of rot indicate or of collateral estoppel. 
Nor do we come to the queen= as to 
whether the judgments against the post-
master bound the United State.. For 
the purpose of this order we assume that 
these questions may be answered in the af-
firmative. 
EFTA00191893

386 
272 FEDERAL REPORTER, u anis 
be, that more than one criminal prose-
cution 
threatened. We find no reason 
here w 
appellants should be permitted 
to de 
from the ordinary rule that 
equity will not intervene in criminal 
prosecutions. 
Since a removal order is, under the 
scheme of the rules and the statutes, not 
appealable, we think it would frustrate 
that scheme if a defendant could, as at-
tempted here, frame an issue in equity 
designed to force an adjudication in his 
home district of a defense that will be 
fully available to him at the place of the 
Indictment. The 1958 amendment of the 
statute suggests a further reason why 
the Congressional purpose to permit 
prosecutions at the place of receipt of the 
circulars should not be frustrated by the 
device here employed. 
See U. S. Code 
Congressional and Administrative News, 
86 Cong., Second Session, 1968, vol. 2, 
p. 4012. 
The stay is denied and the appeal is 
dlamiased. 
Trod 1'. STOCKWELL Appellant, 
v. 
Barry FRIBERG et al., Appellees. 
No. 1.9867. 
United States Court of Appeals 
Sixth Circuit 
Dec. 14, 1959. 
Action for alleged loss of constitu-
tional civil rights of plaintiff while in 
custody of city police and for alleged ille-
gal transportation of his person into an-
other state. The United States District 
Court for the Northern District of Ohio, 
Kloeb, J., rendered judgment dismissing 
complaint with prejudice, and plaintiff 
appealed. The Court of Appeals, held 
that order dismissing complaint with 
prejudice would be affirmed. 
Affirmed. 
Etall Bights t3='1,8 
Complaint for alleged loss of consti-
tutional civil rights of plaintiff while in 
custody of city police and for alleged 
illegal transportation of his person into 
another state was insufficient 
Fred T. 
T. Stockwell, Toledo, Ohio, on 
brief in pro. per. for appellant. 
William D. Driscoll and Ben Neldling-
er, Toledo, Ohio (Louis R. Young, Direc-
tor of Law, by William D. Driscoll, Tole-
do, Ohio, on the brief), for appellees. 
Before McALLISTER, Chief Judge 
and MARTIN and CECIL, Circuit 
Judges. 
PER CURIAM. 
This case came on to be heard on this 
first day of December, 1969, the appel-
lant having been duly notified of the 
setting. 
The appeal has been beard and con-
sidered upon the brief and reply brief 
of appellant, Frank T. Stockwell, and 
upon the brief and oral argument of the 
appellee, appellant having made no ap-
pearance at the hearing in person or by 
attorney. 
The action of appellant was to recover 
damages for the alleged loss of his "con-
stitutional rights while in the custody of 
the Toledo, Ohio, Police, and for the il-
legal procedures involved which brought 
about the illegal transportation of his 
person into the State of Michigan." He 
prayed an award of damages in the 
amount of Five Million Dollars (ss,000,-
000) and that the amount awarded by the 
jury be tripled and declared tax free. 
We find no merit whatever in appel-
lant's contention that his constitutional 
civil rights have been violated; and, for 
the reasons stated in the opinion of Unit-
ed States District Judge Kloeb, we affirm 
his order dismissing the complaint with 
prejudice. 
EFTA00191894

SGO 
187 FEDERAL REPORTER, 2d BEZDIS 
ACKERMAN, Atty. Goo. I INTERNATION-
AL LONOSHOREME 'S t 
WARE-
HOUSEMEN'S UNION of an. 
it
DEVINE., Calmly Atty. of el. 
INTERNA-
TIONAL LONGsHOREME 
& WARE-
HOUSEMEN'S UNION et M. (two oasis). 
I
ACKERMAN, Atty. Gee. at al. 
INTERNA. 
TIONAL LONGSHOREMEN &WARE-
HOUSEMEN'S UNION it at. 
Nos. 12300, 12301. 
United States Court of Apnea* 
Moth Circuit. 
Feb. 28, 1051. 
Rebating Denied May 25,1951. 
Two actions by International Longshore-
men's & Warehousemen's Union, a voluntary 
unincorporated aseoriation and labor union, 
and others, against Walter IX Ackerman. Jr., 
Individually and as Attorney General of the 
Territory of Hawaii, and others, and against 
E. B. DeeIns, Individually and as County At. 
torney for the County of Maui, and others, to 
enjoin the prosecution of four criminal pro-
ceedings pending in the Circuit Conrt of the 
Territory of Howell, ono for not and conspi-
racy and three for riot. The United States 
District Court for the Territory of Hawaii, 
John Diggs, Jr., Circuit Judge, and Delbert 
E. Metzger and George B. Harris, District 
Judges, entered final decrees granting Permit-
neat injunctions, and Walter D. Ackerman, 
Jr., and D. IL Benin, individually, and oth-
ers. appealed. The Court of anneals, Pope, 
circuit Judge, held that Injunctions on 
ground of exceptional circumstances and Ir-
reparable Injury were Improper. 
Judgments reversed with directions. 
I. COOrts 1311,262.7(24) 
In suit to enjoin prosecutions under 
Hawaiian unlawful assembly and riot act 
and conspiracy statute against members of 
union for alleged acts of violence during 
strike, alleged efforts of pickets to prevent 
nonstriking workmen from entering plant, 
beatings by pickets and assaults which al-
legedly prevented loading of products on 
barges had no relation to any rights grant-
ed by the Labor Management Relations 
Act, or Civil Rights Act or to constitu-
tional rights to free speech, press, assembly 
and peaceful picketing so as to justify 
injunctive relief on ground that prosecu-
tions interfered with collective bargaining 
or legitimate activity. Rcv.Laws Hawaii 
1945, 22 11120, 11570-11584, National La-
bor Relations Act, 29 U.S.C.A. § 151 et seq.; 
Labor Management Relations Act of 1947, 
29 U.S.C.A. § 141 et seq., 8 U.S.C.A. §§ 41, 
43, 44, 46, 47, 49(a); 
U.S.C.A.Const. 
Amends. I, 5, 6, 14, 19. 
2. Courts '8n262.7(24) 
Alleged activity of pickets in force-
fully preventing nonstriking workers front 
entering plant, beating of nonstrikers, and 
acts of force preventing supervisory em-
ployees from unloading employer's product 
upon barges, involved conduct, policing of 
which was left wholly to territory of 
Hawaii in which alleged acts occurred. 
Rev.Laws Hawaii 1945, I§ 11120, 11570-
11584. 
3. Courts 43=262.6(i) 
Mere proof of bad faith of prosecutors 
is not sufficient to warrant enjoining crim-
inal proceeding. 
4. Courts 4=462.6(2). 262.7(3) 
In suit to enjoin prosecutions under 
Hawaiian unlawful assembly and riot act 
and conspiracy statute against members of 
union for alleged acts of violence during 
strike, constitutionality of statutes could 
be determined as readily in criminal cases 
as in suit for injunction. Rev.Laws Ha-
waii, 1945, §§ 11120, 11570-11584. 
5. Courts Ss406-3(9) 
In suit to enjoin prosecutions under 
Hawaiian unlawful assembly and riot act 
and conspiracy statute against members of 
union for alleged acts of violence during 
strike, trial court's finding to effect that 
prosecutions were not begun in good faith 
was clearly erroneous. 
Rev.Laws Ha-
waii 1945, §§ 11120, 11570-11584. 
6. Injunction elm109 
In suit to enjoin prosecutions under 
Hawaiian unlawful assembly and riot act 
and conspiracy statute against members of 
union for alleged acts of violence during 
strike, facts that no one had been prose-
cuted under first statute except in connec-
tion with labor dispute, that there were 
mass arrests, that excessive bail was re-
quired, that police did not contemplate 
complaints until directed by prosecuting 
officers, and that statutes with heavy pen-
EFTA00191895

allies were invoked for minor infractions, 
among other things, did not establish lack 
of good faith on part of prosecutors. Rev. 
Laws Hawaii 1945, g 11120, 11570-11584. 
7. Courts 4b 262.6(4) 
In suit to enjoin prosecutions under 
Hawaiian unlawful assembly and riot act 
and conspiracy statute against members of 
union for alleged acts of violence during 
strike, where constitutionality of statutes 
could be tested in criminal proceedings and 
there was no evidence to support finding 
that criminal prosecutions were not in good 
faith, plaintiffs were not entitled to have 
prosecutions enjoined on grounds of ex-
ceptional circumstances and irreparable 
injury. Rev.Laws Hawaii 1945, I§ 11120, 
11570-11584. 
8. Courts 4=262.8(t) 
In suit to enjoin pending prosecutions 
under Hawaiian unlawful assembly and 
riot act and conspiracy statute against un-
ion members for alleged acts of violence 
during strike, where complaint contained 
no allegations to support injunction against 
future criminal proceedings but merely 
alleged that enforcement would deprive 
plaintiffs of their liberty and property 
without due process of law, that they would 
be prohibited from exercising rights of free 
speech, press and assemblage, and that 
union could not function, no injunction 
should have been granted. Rev.Laws Ha-
waii 1945, §§ 11120, 11570-11584. 
9. Courts 4=0508(I) 
Federal court cannot interfere in ease 
where proceedings are already pending 'in 
state court. 
to. Courts st=.432 
It is not function of federal court of 
equity to exercise supervisory control over 
action of territorial court. 
II. Injunction 1=105(1) 
Rule that equity jurisdiction does not 
extend to enjoining pending criminal 
prosecutions has no exceptions, and extra-
ordinary circumstances will not create ju-
risdiction. 
ACKERMAN I. DITELNATIONAL LONOSEWLEXEN'S t W. UNION 
at• as tat sidle° 
12. Courts 4=262.6(l) 
Int uootloo I3.105(1) 
Equity will stay its hand with respect 
to criminal proceedings, always when they 
are pending, and ordinarily when they are 
threatened, and rule is applied both by 
state courts and by federal court when 
asked to enjoin criminal proceedings in 
federal court. 
IS. laluaellon 
I) 
Rule that equity will stay its hand with 
respect to criminal proceedings, always 
when they are pending, and ordinarily when 
they are threatened, is a principle express-
ing sound policy that processes of criminal 
law should be permitted to reach orderly 
conclusion in criminal courts where they 
belong. 
14. Courts .3=262.8(0 
Ordinarily, federal court should not 
interfere with state officers charged with 
duty of prosecuting offenders against state 
laws. 
861 
15. Courts 4=462.4(5), 432 
Where equitable interference with 
state and territorial acts is sought in fed-
eral courts, judicial consideration of acts 
of importance primarily to people of state 
or territory should as a matter of dis-
cretion be left by federal courts to courts 
of the legislating authority unless excep-
tional circumstances command different 
course. 
Walter R. Ackerman, Jr., Atty. Gen. 
Territory of Hawaii, J. Gamer Anthony, 
Special Deputy Atty. Get, Rhoda'. Lewis, 
Asst. Atty. Gen., Richard K. Sharpies', 
Deputy Atty. Honolulu, T. H., for sr 
pellants. 
Bouslog & Symonds and Harriet Bous-
log, all of Honolulu, T. H., for appellees. 
Thomas M. Waddoups, Samuel P. King, 
Edward N. Sylva, H. R. Hewitt, W. B. 
Stephenson and J. Donovan Flint, all of 
Honolulu, T. H., for Bar Association of 
Hawaii, as amicus curiae. 
Before DENMAN, Chief Judge, ORR 
and POPE, Circuit judges. 
EFTA00191896

862 
187 FEDERAL REPORTER, id BEELER 
POPE, Circuit Judge. 
These are appeals from judgments in 
two actions brought by the International 
Longshoremen's & Warehousemen's Un-
ion (ILWU), a labor union, and by certain 
individual members of that union, to en-
join the prosecution of four criminal pro-
ceedings pending in the circuit court of 
the Territory of Hawaii, one for riot and 
conspiracy, and three for riot. The court 
below entered final decrees granting per-
manent injunctions as prayed, against the 
Attorney General of the Territory, the 
County Attorney and Deputy County At-
torney of the County of Maui, and in one 
case the County Chief of Police. 
The criminal charges grew out of certain 
disorders which occurred during separate 
strikes by sugarworkers, and pineapple 
workers, members of the ILWU union. 
On the morning of October 16, 1946, during 
the sugarworkers strike, some three to four 
hundred members of that group were in a 
picket line, four columns deep, before the 
entrance to the sugar mill of Maui Agri-
cultural Company at Paia, on the Island of 
Maui. Five workmen employed in the mill 
appeared for the purpose of crossing the 
picket line and going to work. The same 
men had attempted to pass through to 
work the previous day, but had been pre-
vented because the pickets stood shoulder 
to shoulder. 
On the 16th a number of 
police were on hand.' As the mill whistle 
blew the five men, escorted by the police, 
started toward the mill entrance. 
Two 
hundred of the pickets converged on the 
five men and pushed them back. Upon a 
second attempt to pass the five workmen and 
the police were pushed back 10 or 12 feet 
farther. This ended the attempts to enter 
the mill. There is no finding that any blows 
were struck. 
I. The opinion of the district court states 
that at this time "After certain prelim-
inary conversations between members of 
the ILWU. &intake, Joseph Kobetektite. 
and others, respecting the entry of the 
five workmen to the mill it was stated by 
KahnIonia that If the Svc men tried to 
cross the picket line. 'police or no police; 
there would be violence and bloodshed." 
82 F.Supp. 63, 70 
In consequence of this incident some 75 
men have been indicted, charged with riot 
and conspiracy under the Territorial un-
lawful assembly and riot ad, Chap. 277 
Rev.Law of Hawaii, 1945, §§ 11570-11584, 
and the Territorial conspiracy statute, 
Rev.Laws of Hawaii, 1945, § 11120.2
The other three criminal proceedings 
grew out of incidents later occurring in 
connection with the pineapple workers 
strike, on the Island of lanai, also in the 
County of Maui. On July 14, 1947, as 
several supervisory employees of the Ha-
waiian Pineapple Company, not members 
of the union, were about to load upon a 
barge some pineapples picked before the 
strike and then in bins upon the wharf, 
about 300 union pickets led by union "picket 
policemen" ran toward the men on the 
wharf, yelling "at the tops of their voices", 
caught and beat one of the men, chased 
and "punched at" another, forcing him 
and another man to jump into the water 
to escape, broke open the bins and threw 
pineapples at the barge and tug and at the 
men in the water. 
Two complaints, charging riot, were filed 
against persons accused of participating in 
this incident. In one case eleven defend-
ants, and in the other, 36 defendants, were 
committed after waiving preliminary ex-
amination, to await the action of the grand 
jury. 
On the day following the incident at 
the wharf. 20 to 25 persons headed by 
"union police" with arm bands, went to the 
rooms of two non-striking truck drivers 
employed by the Hawaiian Pineapple Com-
pany on the Island of Lanai, and adminis-
tered "a severe beating" to both of them. 
A complaint, charging riot, was filed 
against five persons charged with par-
2. The pending indictment la the second one 
in the same case. A plea to the first in-
dictment. ehaeengiog its sufficient?. was 
denied by the circuit court and an inter-
locutory appeal allowed to the Supremo 
Court of Hawaii, which construed the 
criminal statute, and held it constitution-
al, but found the indictment fatally de-
fective in form. Territory of Bewail v. 
Kabolokala, 37 !taw. 023. The snood 
indictment followed. 
EFTA00191897

ACKERMAN y. INTERNATIONAL 
cite as in 
ticipating in this affair. They also were 
committed awaiting action by the grand 
jury. The prosecution of these defendants 
and of the other defendants similarly 
bound over, has proceeded no further by 
reason of the injunctions issued by the 
court below. 
The individual plaintiffs in these actions 
are the defendants in the four criminal 
proceedings mentioned, plus two Officials 
of the union who purport to sue on behalf 
of themselves and all other members of the 
union in the Territory. 
Judgment in No. 12301 was based upon 
a complaint seeking to enjoin further 
prosecution of the proceeding in which the 
indictment was returned. The complaint in 
No. 12300 sought similar relief in respect 
to the three proceedings in which com-
mitments had been made. Both complaints 
allege that in furtherance of the objectives 
of the strikes, which were to obtain better 
wages, hours, and conditions of employ-
ment, the individual plaintiffs engaged in 
"lawful, peaceful and constitutionally pro-
tected activities of speech, press and as-
semblage and of peaceful picketing." The 
unlawful assembly and riot statute and the 
conspiracy statute are attacked as un-
constitutional in that they are alleged to 
deprive plaintiffs of their rights of free 
speech, press and assemblage and will 
subject them to criminal prosecutions if 
they exercise their constitutional rights. 
It is alleged that the grand jury which 
found the indictment was chosen and com-
posed in an unconstitutional manner. Pray-
er was for injunction prohibiting the en-
forcement of the criminal statutes men-
tioned, that prosecution of the criminal 
proceedings be enjoined, and that the stat-
utes be held unconstitutional. 
. • 
The trial courts recognized that the 
prayer for an injunction restraining the 
prosecution of criminal proceedings posed 
vri
S. The case 
beard baton the decision 
in Steinbach 
Ho Bock Ka Loh Po, 336 
U.B. 368, RP .Ct. 606, p3 IsEd. 741, by 
three judges who, although of the opin-
ion they were properly constituted as • 
court of three judges under Title 28,1-13. 
C.A. 3 2281, held that If that section had 
no application, they were in any event • 
district court "sitting in bank". 
Since 
LONGSHOZEMENE 4 W. MiION 
863 
lid 000 
serious difficulties, and in this connection 
quoted from the opinion of Chief Justice 
Stone in Douglas v. City of Jeannette, 319 
U.S. 157, 163, 63 S.Ct. 877, 881, 87 LEA. 
1324, as follows: "It is a familiar rule 
that courts of equity do not ordinarily 
restrain criminal prosecutions. No person 
is immune from prosecution in good faith 
for his alleged criminal acts. Its im-
minence, even though alleged to be in 
violation of constitutional guaranties, is 
not a ground for equity relief since the 
lawfulness or constitutionality of the stat-
ute or ordinance on which the prosecution 
is based may be determined as readily in 
the criminal case as in a suit for an in-
junction. • 
• • 
Where the threatened 
prosecution is by state officers for alleged 
violations of a state law, the state courts 
are the final arbiters of its meaning and 
application, subject only to review by this 
Court on federal grounds appropriately 
asserted. Hence the arrest by the federal 
courts of the processes of the criminal law 
within the states, and the determination 
of questions of criminal liability under state 
law by a federal court of equity, are to be 
supported only on a showing of danger 
of irreparable injury 'both great and im-
mediate?" 
But the trial court held that the facts of 
this ease were such as to take it outside 
of the ordinary rule that courts of equity 
will not enjoin criminal prosecutions; that 
it involved exceptional circumstances which 
permit injunctive relief,. and that there 
has been a disclosure of the "irreparable 
injury 'both greatI, nd immediate'", men-
tioned in Douglas 
City of Jeannette, stn. 
pra. 
The court found two such special circum-
stances. First, it said, "All collective bar-
gaining in the Territory of Hawaii in our 
opinion is substantially affected by the two 
statutess as well as by the prosecutions 
the decision and an rulings were anent. 
mous, the dreumatanee of three Judaea 
participating we consider of no signifi-
cance here. The extended opinion of the 
court la reported In 82 F.Supp. 65. 
4. fl. e.. the unlawful assembly and not act 
and 
the conspiracy statute, both of 
which the court held unconstitutional.] 
EFTA00191898

864 
181 FEDERAL REPORTER. 2d gusts 
conducted or about to be carried on there-
under. 
Approximately thirty thousand 
members of the ILWU and the union it-
self necessarily feel the impact of the stat-
utes as does each employer in the sugar 
and pineapple industries. All labor re-
lations in the Islands are clouded by them. 
On the records presently before us we 
think it is fair to state that equable or 
amicable relations betwe 
employers and 
employees in the Territo 
of Hawaii are 
cat 
1 
impossible while the 
es stand. The 
repercussions which arise from the en-
forcement of these statutes of the Territory 
are such as to cause great and irreparable 
harm and damage to all labor relations in 
Hawaii" 
This portion of the opinion of the court 
was bottomed upon the case of A. F. L 
v. Watson, 327 U.S. 532, 66 S.Ct. 761, 90 
L.Ed. 873. The trial court's opinion quoted 
from that case what was there said of the 
requirement of proof of "irreparable in-
jury which is clear and imminent" as fol-
lows: "That is a strict test. But we think 
appellants satisfy it. We reach that con-
clusion on the basis of the allegations 
concerning the disruption of the collective 
bargaining processes and the injury to the 
unions and to the employers alike, if the 
closed-shop agreement is outlawed. 
As 
we have said, it is averred that there are 
about 500 contracts with Florida employers 
containing closed-shop agreements • 
0 . 
82 F.Supp. 65, 109. 
We are unable to perceive any resem-
blance between the facts here and those 
in A. F. I.. v. Watson, supra. 
There 
it appeared that the plaintiff labor unions 
were engaged in negotiating closed shop 
agreements, as they asserted they had the 
right to do by virtue of the National Labor 
Relations Act, 29 L'.S.C.A. § 151 et seq. 
and that the proceedings which the At-
torney General of Florida proposed to in-
stitute against them. pursuant to the newly 
adopted Florida constitutional amendment, 
was an imminent threat to an entire sys-
tem of collective bargaining, involving 
500 contracts, and many thousands of em-
ployees. 
5. W 
141 a see-
(1,2] Here there is no showing of any 
attempted collective bargaining, or other 
legitimate union activity with which any 
act here charged to the defendants could 
possibly interfere. The evidence shows, on 
the contrary, that the activities in which 
the plaintiffs were engaged at the time of 
the occurrence out of which the criminal 
prosecutions arose had nothing to do with 
any right granted by the Labor Manage-
ment Relations Act, 1947, he Civil Rights 
Act! or Amendments I, 
VI, XIV and 
XIX to the Constitution, 
n which plain-
tiffs' rights are alleged to be founded. The 
activities and conduct of the plaintiffs 
here, (characterized by the trial court as 
the "illegal conduct of the strikers") in-
volved the sort of conduct "policing of 
(which) is left wholly to the States. • 
• 
No one questions the State's power to 
tis
police coercion by those me 
." Inter-
national Union, U. A. W. 
Wisconsin 
Employment Relations Board, 
U.S. 245, 
233, 69 S.Ct. 516, 93 LEd. 651. 
Perhaps implicit in the triai court's 
finding that labor relations and collective 
bargaining were adversely affected, is the 
court's apparent view that the very ex. 
istence of an unconstitutional act upon the 
statute books operated as a psychological 
obstacle to labor activities and negotiations. 
Such an argument, if sound, would lead 
to the result that an injunction might issue 
in any case where an unconstitutional 
statute might constitute a mental bazar 
Thus the statute attacked in Douglas 
City of Jeannette, supra, was unquestio 
ably unconstitional, for the court so held
in Murdock 
Pennsylvania, 319 U.S. 105, 
63 S.Ct. 870, 87 LEd. 1292, yet the bill in 
the Jeannette case was held to be without 
equity. No doubt the invalid ordinance 
there was as much of a psychological 
hazard to the Jehovah's Witnesses, as the 
statutes here attacked could be to union 
labor. 
in The other exceptional circumstance 
which the court held justified enjoining 
the criminal proceedings, was found in the 
determination that the prosecution of these 
6. 8 US.C.A. it 41. 43, 44. 46. 47. WO; 
28 1.I.S.C.A. I 1343. 
EFTA00191899

ACHESJdA1f 
INTERNATIONAL 
Cite as 187 
proceedings was not in good faith. The 
trial court did not undertake to cite any case 
in which proof of bad faith in a criminal 
prosecution was held to establish reason 
for departure from the ordinary rule that 
a court of equity will not entertain a suit 
to enjoin criminal prosecutions. The court 
evolved its conclusion that want of good 
faith was a sufficient reason for issuing 
such an injuncti n from the phraseology 
used in Douglas 
City of Jeannette, supra, 
that "courts of 
uity do. not ordinarily 
restrain criminal prosecutions. No person 
is immune from grosettaion in good faith 
for his alleged criminal acts." (Emphasis 
added.) 
The court reasoned that in in-
serting the words "in good faith" in the 
quoted language, the court was at least 
implying that only prosecutions is good 
faith are immune from equity injunctions, 
and hence if bad faith be shown the crimi-
nal prosecution may be enjoined. We think 
this purely textual analysis of the quoted 
language is not warranted, for to say that 
one is not immune from prosecution in 
good faith does not imply that one is im-
mune from prosecution in bad faith, and 
may enforce that immunity by injunction. 
The trial court recognized that "the motive 
of the prosecutor is of course not relevant 
to the ordinary criminal proceeding." 
We cannot bring ourselves to believe 
that a defendant in a criminal case, who 
would not be permitted to plead or prove 
as a defense to the charge, that the prose-
cutor's motives were bad, could neverthe-
less by alleging such bad faith and the 
invalidity of the criminal statute, move 
into a court of equity and have those issues 
tried there. No case has been called to 
our attention which has applied the trial 
court's theory that proof of bad faith in 
the criminal prosecution is sufficient to 
7. 01 the contrary, compare Kentucky y. 
Powers. 201 U.S. 1, 26 8.Ce. 887, 50 L 
Ed. 633. A claim of denial of constitu-
tional rights and of official bad faith, op-
pression and misconduct In the prosecu-
tion of petitioner in a state court was 
made Is a petition for removal. Petition-
er was remanded to the custody of the 
Butte authorities. Even where the bed 
faith charged anoint the prosecutor In-
117 LId—U 
LONGSHOREMEN'S a W. MIION 
885 
rid 40e 
warrant enjoining the criminal proceed-
ings? 
The trial court has failed to note what 
appears to us to be the probable reason for 
the use of the words "prosecution in good 
faith" in the sentence quoted from the 
Jeannette case. Appellants have called our 
attention to the fact that the statement: 
"No citizen • • 
• is immune from 
prosecution, in good faith, for his alleged 
criminal acts", was first used in decisions 
following Hague v. C. I. 0., 1939, 307 U.S. 
496, 59 S.Ct. 954, 83 LEd. 1423. 
Such 
decisions, thus referring to "prosecution 
in good faith", are Beal v. Missouri-Pacific 
R. Corp., 312 U.S. 45, 49, 61 S.Ct. 418, 85 
LEd. 577; Watson v. Buck, 313 U.S. n 
61 S.Ct. 962, 85 LEd. 4416, and Douglas I. 
City of Jeannette, supra. 
01 We think a more likely explanation 
of the use of this phrase is that the Su-
preme Court had in mind such cases as 
Hague v. C. I. 0., supra, in which it ap-
peared that plaintiffs seeking to hold peace-
ful meetings and to distribute literature 
were threatened with arrest under the void 
Jersey City ordinance, and their associates 
had been arrested and carried out of the 
city, all in line with a deliberate policy of 
excluding and removing plaintiffs' agents 
from Jersey City. Indeed, the Jeannette 
case, supra, 319 U.S. at page 164, 63 5.Q. 
at page 881, made specific reference to this 
aspect of the Hague case in distinguishing 
it. Another type of case is that represented 
by Ex parte Young, 209 U.S. 123, 28 S.Ct. 
441, 52 LEd. 714, where the applicant for 
injunction was confronted with threatened 
prosecution under a statute imposing such 
large penalties he dare not test its validity 
by violation inviting prosecution. 
Be-
cause of the special facts which were 
present in Hague v. C. I. 0. and Ex parte 
Young, the applicants for injunction had 
robed the knowing use of Milord teed-
mon, sad a deliberate suppression of evi-
dence, and hence was itself a denial of 
due process, the petitioner for federal 
court action (habeas corpus), was re-
quired drat to exhaust hip remedy in the 
state courts. Mooney I Holoban, 2P4 
101. 66 set. 840. 79 LEd. 791. 
Accord, Ex pane Hawk, 821 U.S. 114, 
316, 64 8.0t. 448, 88 ups 672. 
EFTA00191900

8,86 
187 FEDERAL REPORTER, Ed SERIES 
no reasonable opportunity to test their 
rights in the criminal cases. 
For this 
reason the threatened prosecutions there 
were not in good faith. In those cases 
could not be said, as it was in Douglas 
City of Jeannette, that "the lawfulness 
constitutionality of the statute or ordinance 
on which the prosecution is based may be 
determined as readily in the criminal case 
as in a suit for an injunction." Such, we 
think, is the case here. 
[5-7) Furthermore, we think want of 
good faith was not proven, and the court's 
finding in that respect clearly erroneous. 
The principal ground of bad faith is said 
to be that "no one has been prosecuted un-
der the unlawful assembly and riot act ex-
cept in connection with labor disputes". 
But unless riots did occur at places and tin-
der circumstances not involving labor dis-
putes which called for complaints which 
the prosecutor refused or neglected to file, 
the quoted statement has no significance. It 
is not claimed, and there was no allegation 
or proof that there were any such unprose-
cuted violations. The remainder of the 
circumstances listed by the court's opin-
ion as evidence of bad faith, it seems to 
us, are no more than expressions of the 
trial court's opinion that the prosecution 
I. The trial court's enumerstioe of the 
facts thought to show bad faith wee as 
follows: "In this connection the follow. 
lag facts stems* others in the Instant 
cases are pertinent: (1) (10, the mum 
arrests, and the very broad, Indeed, the 
too broad field, from which the police 
drew the defendant' In the various crim• 
bud proceedings after both the Pais and 
the Kau °Manna Harbor Incidents, demon-
strated by the fact that the names of six-
teen person, were stricken out of one of 
the complaints and that of ninety-three 
•rresta made os the Island of Cebu on 
Joly 18, 1947 only one person. viz. Mel-
bore, was subjected to prosecution, all 
other complaints being nolle Premed; 
(b) the seating of persons is defendants 
in criminal proceedings from photographs 
taken by the police both prior and sub-
sequent to the occurrence of the Ileums-
lapin Harbor incident; • • • (oil the 
excessive ball required of many of the 
plaintiffs la the Instant eases: (2) the 
fact that Assistant Chief of Police Frei-
tee did not read the unlawful assembly 
end riot act to the strikers daring the 
was too vigorous, or that the police officers 
rather than the prosecuting attorney, should 
have selected the statute under which com-
plaint would be filed, or that the methods 
used in securing evidence were poor.' In 
our opinion these circumstances are in-
sufficient to establish want of good faith. 
We must therefore disagree with the con-
clusion of the trial court that the facts 
here present extraordinary circumstances 
to take this case out of the ordinary rule 
that a court of equity will not enjoin a 
criminal prosecution. 
But there is a further reason why, in 
our opinion, these cases cannot, in any 
1
event, warra 
the granting of injunctions. 
In Babcock 
Noh, 9 Cir.. 99 F.2d 738, 
739, this sou 
said: "In support of the 
decree appellee argues broadly that a court 
of equity may enjoin a criminal prosecution 
under a void statute where such prose-
cution amounts to a wrongful invasion of 
a property right, [citing cases]. However, 
the present suit is not within the principle 
announced in these authorities. 
What 
was sought in those cases was relief against 
threatened, not pending, prosecutions; and 
in them the court proceeded upon the view 
that one is not compelled to test the con-
stitutionality of an act by first incurring 
Pala or Kautealapau Incidents and did not 
contemplate the swearing out of a com• 
plaint against any of the plaintiff under 
that statute until directed to do so by 
the prosecuting officers of Maui County; 
(3) the repeated selection of the unlawful 
assembly and riot act with its heavy pen-
shies as the vehicle for the prosecution 
of comparatively minor infractions of the 
criminal laws; (4) the baste with which 
the prosecuting officers of Maul County 
procured the second indictment of 'Cabe.. 
/cobalt and others when the first indict-
ment was bold Invalid by the Supreme 
Court of Hawaii; (5) the fact. for we 
have found It to be a fact, that no one 
her been prosecuted under the unlawful 
assembly and riot act except In connec-
tion with labor disputes at any time dun 
hog the life of the Territory; and (6) 
the fact that the maximum penalty under 
the unlawful assembly and riot act was 
increased from Iva jean' imprisonment 
to twenty rani imprisonment In 1929, 
following the Filipino workers' strike in 
1924." 
EFTA00191901

ACKERMAN T. INTERNATIONAL LONOSHOREMEN'S & W. UNION 
867 
ate as ter rid 100 
drastic penalties attached to its violation, nied. The court made no finding that fu-
but may, under extraordinary circumstanc- ture prosecutions were threatened. 
es, appeal to equity for relief against the 
invasion of his property rights through the 
threatened enforc 
nt of the statute. Ex 
pane Young, 209 
123, 28 S.Ct. 441, 
52 LEd. 714; Fenner 
Boykin, 271 U.S. 
40, 46 S.Ct. 492, 7 
Ed. 927; Terrace 
Thompson [263 
S. 197, 44 S.Ct. 15, 
LEd. 255]. He , no threat of the in-
stitution of other criminal proceedings 
under the act is alleged in the bill or found 
to have been made. The relief sought is 
against the further prosecution of the 
pending case." 
[8] The injunctions here issued re-
lated solely to prosecutions rhea finding.* 
There is no injunction against any threat. 
coed prosecutions. 
The complaints con-
tained no allegations to support an injunc-
tion against future or threatened criminal 
proceedings. The only allegation of future 
damage was that the criminal statutes "will 
deprive plaintiffs of their liberty and prop-
erty without due process of law, in that 
plaintiffs will be prohibited from exercis-
ing their rights of free speech, press and 
assemblage in violation of the Fifth and 
Fourteenth Amendments to the Constitu-
tion of the United States," and that the 
union could not function "so long as the 
members of the said 1LWU are subject 
• 
• 
• to prosecution under statutes con-
taining unconstitutional limitations." This 
falls far short of an allegation that these 
plaintiffs were threatened with prosecution 
under the statutes on account of peaceful 
picketing, publicizing, bargaining, or ex-
ercising other constitutional rights and 
privileges. This defect in the complaints 
was called to the attention of the court and 
of the plaintiffs by motions which pointed 
out the failure to complain of threatened 
future action?* but the motions were de-
S. The haienedoe bo No. 12301 was "from 
promedlog with the prosecution eon. 
menced is October. 1048." That in No. 
12300, was "from proceeding with the 
prosecution commenced Anton 1. 1947." 
Both dates were prior to the commence-
ment of the salts. 
10. Motions for mon fleabite statement, 
[9] The rule stated in the Babcock case 
was that declared in Ex pane Young, 209 
U.S. 123, 162, 28 S.Ct. 441, 455, 52 L.Ed. 
714, as follows: "But the Federal court 
cannot, of course, interfere in a case where 
the proceedings were already pending in a 
state court" The sa 
rule was followed 
nt 
and applied in Cline 
Frink Dairy Co., 
274 U.S. 445, 452-453, 7 S.Ct. 681, 71 L 
Ed. 1146. 
[10] The distinction stated in the Bab-
cock case, between pending and threatened 
prosecutions, is founded upon certain fund-
amental characteristics of equity, juris-
diction. 
first to be noted is that stated 
in Douglas City of Jeannette, supra, 319 
U.S. at page 165, 63 S.Ct. at page 882: "In 
any event, an injunction looks to the fu-
ture." In the east before us all that is 
drawn in question are past acts. There 
is no proof or finding that for exercising 
lawful rights plaintiffs are threatened with 
future prosecutions under the statutes they 
assail. Thus, for the court below to assume 
to enjoin prosecution of the four pending 
proceedings is to assume to exercise a 
supervisory control over the action of the 
Territorial court. Such is not the function 
of a court of equity. 
The second circumstance basic to this 
distinction was pointed out in the quoted 
portion of the Babcock opinion which 
states that where the prosecution is threat-
ened, not pending, "one is not compelled 
to test the constitutionality of an act by 
first incurring drastic penalties attached to 
its violation, but may, under extraordinary 
circumstances, appeal to equity • * *" 
etc. Ex pane Young, which dealt with a 
statute having drastic penalties, is a classic 
example of such a situation. Here, on the 
contrary, in the four pending actions, the 
to asmiat, and for summary Judgments 
recited: "The complaint fails to show 
that said plaintiffs are threatened with 
more than one criminal proceeding, or 
that anything at all is involved other 
than prosecution of an tile 
00 
of the criminal lows of the 
of 
Nswa0, with respect to ma era w ch 
have already *marred." 
EFTA00191902

868 
187 FEDERAL REPORTER, 24 SERIES 
plaintiffs have at hand full opportunity to 
test their rights by defending in those 
proceedings. As this court said in Alesna 
v. Rice, 9 Cir., 172 Fit! 176, 377, "Had 
the prosecution of the information pro-
ceeded, the jury might have acquitted the 
defendants, appellants, and the constitu-
tional and other questions avoided. In any 
event, the appellants had a speedy and 
sufficient remedy at law by appeal to the 
Hawaiian Supreme Court, where the ap-
pellants' arguments of the two contentions 
may have prevailed. Losing, there is the 
appeal here. In both appellate courts the 
practice gives primacy of consideration to 
criminal appeals." 
(11) The rule that equity jurisdiction 
does not extend to enjoining pending crim-
inal prosecutions, has no exceptions. No 
extraordinary circumstances will serve to 
create such jurisdiction. 
112,13) That equity will stay its hand 
in respect to criminal proceedings, always 
when they are pending, and ordinarily 
when they are threatened, is a rule of wide 
and general application under our legal 
system. It is a rule of the state courts in 
respect to criminal proceedings in the as 
or other state courts. Milton Dairy Co. 
Great Northern Ry. Co., 124 Minn. 
i t
144 N.W. 764, 49 
R.A.,N.S., 951; State 
ex rel. Kenmore 
Wood, 155 Mo. 425, 
56 S.W. 474, 48 1-. . . 596. Federal courts 
apply the same rule when asked to enjoin 
I
criminal proceedings in he federal courts. 
Argonaut Mining Co. 
McPike, 9 Cir., 
78 F2d 584; Whitehea v. Cheves, 5 Cir., 
67 F.24 316, 317, certiorari denied 290 U.S. 
S.C.
.
Medalie, 2 Cir., 71 F.2d 671, certiorari 
enied 
293 U.S. 592, 55 S.Ct. 108, 79 LEd. 
686. It is a principle expressing a sound 
policy that the processes of the criminal 
law should be permitted to reach an orderly 
conclusion in the criminal courts where 
they belong. 
[14) But when the demand for an in-
junction is presented to a federal court, 
asking an injunction against proceedings 
in a state or territorial court, the reasons 
of policy against any such action are 
multiplied because of the necessity of 
avoiding whenever possible conflict be-
tween the two judicial s terns. 
This 
I 
t 
licy was stated in Fenner 
Boykin, 271 
S. 240, 243, 46 S.Ct. 492, 
3, 70 LEd. 
7: "Ordinarily, there should be no inter-
ference with such officers; primarily, they 
are charged with the duty of prosecuting 
offenders against the laws of the state, 
and must decide when and how this is to 
be done. The accused should first set up 
and rely upon his defense in the state 
courts, even though this involves a chal-
lenge of the validity of some statute, un-
less it plainly appears that this course 
would not afford adequate protection. The 
Judicial Code provides ample opportunity 
for ultimate review here in respect of fed-
eral questions. 
An intolerable condition 
would arise, if, whenever about to be 
charged with violating a state law, one 
were permitted freely to contest its validity 
by an original proceeding in some federal 
court." • 
[15] That this policy applies to pro-
posals to enjoin proceedings in the courts 
of Hawaii as well as to similar injunctions 
directed 
ainst state courts, we stated in 
Alesna 
Rice, supra: "The Jeannette 
case concerned the enjoining of state prose-
cutions. We think the criminal laws of the 
Territory of Hawaii are entitled to the 
same protection. 
Section 86(c) of the 
Hawaiian Organic Act, 48 U.S.C. § 642, 
48 U.S.C.A. § 642, provides that the United 
States District Court for the District of 
Hawaii 'shall have the jurisdiction of 
district courts of the United States, • •.' 
• 
• 
• This court has recognized that 
the Organic Act places the courts of the 
Territory of Hawaii in a relatively similar 
position to the federal judicial system as 
are 
e state courts. See Wilder's S. S. 
Co. 
Hind, 
in, 108 F. 113, 115, 116, 
affirmed 183 
545, 22 S.O. 225, 46 L. 
Ed. 321, and 
eung 
Territory of Hawaii, 
9 Cir., 132 KW 374, 378." And since our 
decision in that case, the Supreme Court 
stated the reason for assimilating the 
position of the Hawaiian 
urts to that of 
38)
State courts in Stainbaek 
Mo Hock Ke 
Lok Po, 336 U.S. 368,
 69 S.C. 606, 
614, 93 Ltd. 741, as follows: "Entirely 
aside from the question of the propriety 
EFTA00191903

BROOKS l aPENNSYLRANIA IL CO. 
sea 
tesellff Plage - '
of an injunction in any court, territorial fittest to prevent award of summary Jude-
like state courts are the natural sources for meat against plaintiff. '
the interpretation and application of the 
Affirmed. 
acts of their legislatures and equally of the 
See, also, 91 P.Satip. 01. 
propriety of interference by injunction. i. Federal civil preradere.4=2410 
We think that where equitable interference 
In action against railroad for alleged 
with state and territorial acts is sought in misdelivery of household goods transported 
federal courts, judicial consideration of under straight bill of lading issued by de• 
acts of importance primarily to the people fendant and in which plaintiff was named 
of a state or territory should, as a matter of as consignor and consignee, allegation in 
discretion, be left by the federal courts to affidavit submitted in opposition to defend-
the courts of the legislating authority un- ant's motion for summary judgment, that 
less exceptional circumstances command plaintiff's contract with defendant called 
a different course." 
for shipment of goods to specified place 
Appellants argue that the district court in foreign country rather than to place 
was prohibited from granting the injunc- in United States to which defendant de• 
tions by § 2283 of Title 28, relating to in- livered the goods, do not pose a genuine 
junctions "to stay proceedings n a State issue of material fact and was insufficient 
court". As we said in Alesna 
Rice, su- to prevent award of summary 
i 
judgment. 
pra, we find it unnecessary to c Miler this 2. Carriers 6=44 
question here. 
If plaintiff's contract with railroad 
Alesna 
Rice, 
au 
a, 
re.
The rules expressed 
Babcock I  Nob, for shipment of goods by railroad called 
supra, and in Alta 
for delivery at specified place in foreign 
quired the district 
to deny the in- country, but plaintiff authorized plaintiff's 
junctions prayed for. The judgments are agent to take delivery of goods in United 
reversed with directions to dismiss the States, defendant was justified in delivering 
suits. 
goods to plaintiff's agent in United States 
and could not be held liable for misdelivery 
of goods. 
BROOKS v. PENNSYLVANIA R. CO. 
PO. 199, Docket 21917. 
United States Court of Appeals 
Second Circuit. 
Argued March 13, 1951. 
Decided March 28,1951. 
John R. Brooks brought an action against 
the Pennsylvania Railroad Company for We-
delivery of goods shipped on a straight bill 
of lading issued by defendant The United 
States District Court for the Southern Dis-
trict of New York, entered a summary judg-
ment which dismissed the complaint and the 
plaintiff appealed. The Court of Appeals, 
Per Curium held that allegation in plain-
Off's affidavit submitted in opposition to mo-
tion for summary Judgment did not rose a 
genuine Issue of material fact and was Insuf-
Reverend John R. Brooks, pro se. 
fileakley, Platt, Gilchrist & Walker, 
New York City, Dennis P. Donovan and 
Robert L Conkling, New York City, of 
counsel, for appellee. 
Before SWAN, CHASE and FRANK, 
Circuit Judges. 
PER CURIAH. 
Plaintiff appeals from a summary judg-
ment which dismissed his complaint in an 
action against the Pennsylvania Railroad 
Company for alleged misdelivery of house. 
hold goods transported under a straight 
bill of lading in which plaintiff was named 
as both consignor and consignee. Defend-
ant moved for summary judgment on the 
grounds that (1) the uncontradicted evi-
dence showed that proper delivery had been 
made; and that (2) the action was barred 
by re: judicata. The lower court held that 
EFTA00191904

644 
181 FEDERAL REPORTER, 24 AERIES 
motion to annul, vacate and set aside his 
sentence and to direct his immediate re-
lease from prison. 
There were nine counts in the indict-
ment, all charging appellant's violation of 
section 338a, subdivision (a), of Title 18 
United States Code [1948 Revised Crim• 
inal Code. 18 U.S.CA. § 876], in wilfully 
with intent to extort money, threatening to 
injure, and knowingly and with intent to 
extort money depositing in the United 
States Post Office letters containing threats 
to injure the person of the addressee. 
On motion of the United States Attorney, 
all counts of the indictment except the ninth 
count were dismissed. The defendant was 
found guilty on that count and was sen-
tenced to fifteen years imprisonment The 
only material issue before us is whether 
the single count upon which the conviction 
rested states an offense. It is clear that it 
does. Even without inclusion of the first 
numbered paragraph of the ninth count, the 
offense condemned is plainly charged, in 
that averment is made that the defendant 
"did, on or about the 3rd day of May, 1948, 
in the City of Canton, County of Stark, 
State and Northern District of Ohio, then 
and there knowingly and with intent to ex-
tort money from Joe Cohen deposit and 
cause to be deposited in a Post Office of 
the United States, to-wit, the Post Office 
at Canton, Ohio, to be sent and delivered 
by the Post Office establishment of the 
United States, a letter and communication 
postmarked Canton, Ohio, May 3, 1918, 
addressed to the said Joe Cohen and con-
taining a threat to injure the person of 
the said addressee, • 
• 
• 
which letter 
and communication was then and there 
enclosed in a sealed envelope, postage pre-
paid, a true copy of which envelope is 
marked Exhibit "Q", attached hereto, and 
by reference mule a part hereof; that a 
true copy of said letter and communication 
is marked Exhibit "R", attached hereto, 
and by reference made a part hereof; that 
said letter and communication was duly 
carried by the United States mail for de-
livery into the City and County of San 
Francisco, Southern Division of the North-
ern District of California, according to 
the direction thereon." 
The exhibited letter plainly threatens 
injury to the addressee Joe Cohen, Elks 
Club, 
San 
Francisco, California, and 
evinces the manifest intent to extort mono' 
from the addressee. 
The order of the district court denying 
the motion of appellant is affirmed. 
CITY OF MIANI I SUTTON et al. 
No. 13113. 
United States Court of Appeals 
Fifth Circuit. 
April 25,1050. 
Dnrward B. Sutton and Sarah R. Sutton. 
cluing bald flOkIl as the Sutton Jewelry Com-
pany hmnght suit against the City of Miami 
to enjoin enforcement of city ordinance 
which would have effect of preventing plain-
tiffs front holding proposed jewelry suction' 
between the hours of six In the evening and 
eight in the morning, on ground that era 
Dance, as applicable to them, violated pm-
visions of the federal constitution, and for 
a declaratory decree. 
The United State* 
District Court for the Southern District of 
Plotkin, John W. flatland, J., rendered a 
judgment for the plaintiffs, and the defend-
ants appealed. The Court of Appeals. Rus• 
sell, Circuit Judge, held that plaintiffs were 
not entitled to injunctive relief. 
Judgment reversed with directions to dis-
miss. 
I. Deal 
 judgment 4=128 
I al u natio n emest2) 
Those operating a jewelry store were 
not entitled to a declaratory judgment or 
to injunction from federal district court 
enjoining city from enforcing ordinance 
which would 'have effect of preventing 
them from holding proposed jewelry auc-
tions at their establishd place of business 
between the hours of six in the evening 
and eight in the morning, on ground that 
ordinance, as applicable to them, violated 
provisions of the federal Constitution be-
cause they would be subject to multiple 
EFTA00191905

CITY OF MIAMI 
Ow se ta
fines and imprisonments under the ordi-
nance and would allegedly suffer damage 
to 
their 
reputation 
U.S.C.A.Const. 
Amends. 4, 14. 
2. lelusetion 4DI0S(I) 
Equity courts do not ordinarily restrain 
criminal prosecutions. 
3. Criminal law d=r3I 
Immunity from prosecution in good 
faith for his alleged criminal acts is not 
accorded to any citizen or member of the 
community. 
4. lajumetloa 4=105(1) 
The imminence of a criminal prosecu-
tion, even though alleged to be unauthorized 
and hence unlawful, is not alone ground for 
relief in equity which exerts its extraordi-
nary powers only to prevent irreparable in-
jury to the plaintiff who seeks its aid. 
& Courts dmKeyn 
The imminence of a criminal prosecu-
tion, even though alleged to be unauthorized 
and hence unlawful, is not alone ground for 
relief in a federal equity court particularly 
where the only threatened action is the 
prosecution in the state courts by state offi-
cers of 'an alleged violation of state law 
with the resulting final and authoritative 
determination of the disputed question 
whether the act complained of is lawful•or 
unlawful. 
S. Ceerts 4m50$(7) 
The federal courts are without juris-
diction to try alleged criminal violation of 
state statutes. 
7. Corte 4w4$9(2)
The state courts are the final arbiters 
of the meaning and appropriate application 
of state statutes, subject only to review by 
the United States Supreme Court if such 
construction or application is appropriately 
challenged on constitutional grounds. 
& Coons itio508(7) 
Interference with the process of the 
criminal law in state courts, in whose con-
trol they are lodged by the constitution, and 
the determination of question of criminal 
liability under state law by federal equity 
courts can be justified only in most excep-
7.1.44 
tional circumstances and upon clear show-
ing that an injunction is necessary to pre-
vent irreparable injury. 
& Courts etri5080 
In the exercise of the pound discretion 
which guides the determination of federal 
equity courts, scrupulous regard must be 
tad for the rightful independence of state 
governments, and a remedy infringing that 
independence which might otherwise be 
given should be withheld if sought on slight 
or inconsequential grounds. 
10. Declaratory Judgment 4m3S7 
Injunction 01=l05(2) 
The restrictions on the propriety of the 
grant by a federal court of an injunction 
to restrain institution of prosecutions for 
violations of state or municipal penal laws 
are in no wise relaxed because application 
for an injunction may be presented along 
with a request for a declaratory decree. 
It. Declaratory Judgment 4=l23 
Where issuance of an injunction was 
the only means by which a declaration of 
rights as to the constitutionality of city 
ordinance as applied to plaintiffs could 
effectively be enforced or bring about a 
termination of the controversy, the legal 
impossibility of obtaining such injunctive 
relief rendered a declaration advisory only 
and therefore futile to effectuate a settle-
ment of the controversy. • 
SUTTON 
645 
John D. Marsh, Asst. CV Atty., J. W. 
Watson, Jr., City Atty., Miami, Fla., for 
appellant. 
George C. McCaughan, Miami, Fla., and 
Arthur A. Kimmel, Miami Beach, Fla., for 
appellees. 
Morris Buick, Herbert S. Shapiro and 
Richard E. Gerstein, Miami Beach, Fla., 
for amicus curiae. 
Before HUTCHESON, Chief Judge, and 
WALLER and RUSSELL, Circuit Judges. 
RUSSELL, Circuit Judge. 
The City of Miami, appellant here, and 
its officers, were each and all enjoined by 
order of the trial Court from enforcing the 
EFTA00191906