EFTA00191587

472 
431 FEDERAL REPORTER, 2d SERIES 
less, that the constitutional issue was at 
least sufficiently substantial to be be-
yond the province of a single judge. On 
the second issue, however, it held that 
the complaint failed to allege facts suffi-
cient to invoke traditional equitable ju-
risdiction. Therefore, it denied injunc-
tive relief, denied appellants' motion to 
convene a three-judge court, and dis-
missed the complaint. 
Appellants filed notices of appeal and 
on May 19, 1970, applied to a panel of 
this court for injunctive relief pending 
appeal and for a stay of the judgment of 
the district court. The panel ordered an 
accelerated briefing schedule and re-
ferred those motions to the panel which 
would hear argument on the merits. 
[1] Although it was not always so= 
it is now clear that, at least in cases 
where, as here, the district court enters 
an appealable order, review of a refusal 
rii
to convene a th 
-judge court lies in 
this court. Gunn 
University Commit-
tee, 899 U.S. 383, 0 S.Ct. 2013, 26 i 
Ed2d 
684 
(1970); 
Mengelkoch 
Industrial Welfare Commission, 3 
1
U.S. 88, 89 S.Ct 60, 21 L.Ed.2d 215 
(1968); Wilson 
City of Port La-
vaca, 391 U.S. 35 , 88 S.Ct. 151 20 L. 
Ed.2d 636 (1968); SchaeAmen 
Arne-
bergb, 887 U.S. 427, 87 S.Ct. 1 
, 18 L. 
Ed.2d 865 (1967); Buchanan 
Rhodes. 
885 U.S. 3, 87 S.Ct. 83, 17 
.Ed.2d 9 
(1966); Idlewild Bon Voyage Liquor 
Corp. v. Epstein, 370 U.S. 713, 82 S.Ct. 
1294, 8 L.Ed2d 794 (1962). Since in 
this case we affirm that refusal, we 
need not now decide whether or not 
there is jurisdiction in the court of ap-
peals to grant preliminary injunctive re-
lief pending appeal, or equivalent prelimi-
nary relief within the federal judicial 
system by way of mandamus pending ap-
peal, or mandamus relief in the absence 
of an appealable orders 
2. Stratton! St. Lads 8. W. Ry., 282 U.S. 
DI 51 S. . 8. 75 L.Ed. 135 (1930), Ex 
parte Metropolitan Water Co.. 220 U.B. 
599, 9 
.Ct. 600, 55 L.Ed. 575 (1911); 
Miner 
Eimkh. 236 F.Supp. 927 (E.D. 
Pa. 
Appellants contend that having found 
the federal constitutional question to be 
at least not frivolous, the district court 
should have made no further inquiry, 
but should thereupon have entertained 
the request for a three judge court as a 
matter of form. Principal 
language 
Idle-
reliance for 
AIdle-
Bon 
Is 
upon 
the
Bon Voyage Liquor Corp. 
Ep-
, supra 370 U.S. at 715, 82 . t. at 
1296: 
When an application for a statutory 
three-judge court is addressed to a 
district court, the court's inquiry is 
appropriately limited to determining 
whether the constitutional question 
raised is substantial, whether the com-
plaint at least formally alleges a basis 
for equitable relief, and whether the 
case presented otherwise comes within 
the requirements of the three-judge 
statute. (Italics added) 
Appellants emphasize that their prayer 
for relief asks for an injunction, that 
the complaint contains the words "irrep-
arable injury" and that this is all the 
Supreme Court intended to require by 
the language "at least formally alleges a 
basis for equitable relief." 
(2] We do not agree. It is clear 
that in determining the substantiality of 
the claimed constitutional question the 
district court makes a judicial decision. 
Schneider v. Rusk, 372 U.S. 224, 83 S.Ct. 
621, 9 L.Ed.2d 695 (1963) ; Ex parte 
Porosity, 290 U.S. 30. 64 S.
 3, 78 L. 
Ed. 152 (1933); Fiumara 
Texaco. 
Inc., 24 
p. 325, 326 (E.D.Pa. 
1965); ill 
p. 
note 
2.
Its funs on is analagous to that of a 
court reviewing a complaint for legal 
sufficiency under Rules 12(b)(1) or 
1
12(b) ) of the Fed.R.Civ.P. 
Har-
grave 
McKinney, 413 F.2d 320, 324 (6 
Cir. 1 9). We cannot attribute to the 
3. Set Gunn I ralveralty Committee, 
supra; Jackson 
Cboo9t61404 F24 910, 
012 (5 eft. 1908): Lyons ■ Davoren, 402 
P.24 890, 892 (1 Cir. 1 
, cert. denied, 
393 U.B. 1081, 89 8.1 . 861, 21 LFAI24 
u
774 m); Sinatra 
New Jersey State 
Commission, 811 E upp. 678 (D.N.J. 
1970). 
EFTA00191867

MAJUB1 I. UNITED STATES 
473 
Cla 44 481 rid KO (1070) 
Supreme Court the intention, in the 
lege that they should be free to continue 
same sentence of Idlewild Bon Voyage 
Liquor Corp. v. Epstein, supra 870 U.S. 
at 716, 82 S.Ct. at 1294, to distinguish be-
tween the district court's role in deter-
mining substantiality of a constitutional 
question and its role in determining the 
existence of a ground for equitable re-
lief. Both decisions are judicial rather 
than ministerial. Both require that the 
district court look beyond the prayer for 
relief to the substantive allegations of 
the complaint. 
Appellants suggest, however, that the 
decision as to substantiality of the fed-
eral constitutional question is "jurisdic-
tional", at least in non-diversity cases, 
whereas a decision that the complaint 
faith to state a claim for equitable relief 
is a decision "on the merits" and hence 
one which by virtue of 28 U.S.C. § 2284 
a single judge may not make. But it 
seems to us that a decision that a 
claimed question of constitutional law is 
insubstantial is even more clearly on the 
merits, and such decision is now a firm-
ly established duty of a single district 
court judge. A finding of insubstantial-
ity of the constitutional question is, 
moreover, one involving a more sophisti-
cated judgment than that required to de-
termine whether or not a complaint 
states a cause of action for injunctive 
relief. Over recent history far greater 
growth and change has taken place, and 
undoubtedly will continue to take place, 
in federal constitutional law than in the 
law of equitable remedies. 
We agree, therefore, that it was the 
district court judge's duty to examine 
the complaint for substantive allegations 
which would support a claim for injunc-
tive relief, and not to look merely at the 
prayer for relief and the conclusive alle-
gation of irreparable injury. 
Appellants are not faced with the 
choice of committing a violation of the 
criminal statute in order to teat their 
constitutional contentions. There is no 
allegation that the pendency of the crim-
inal charge inhibits them from engaging 
in protected activities. They do not al-
481 F.24-401/4
intrastate loansharking. They say, only, 
that it is inconvenient and expensive to 
raise their constitutional contentions by 
appropriate pretrial and trial motions in 
the criminal case, though they have in 
fact done so. They do not even explain 
how it will be any less expensive to try 
the constitutional issues in this civil 
case than in the criminal ease. 
11
[3] The 
strict court, referring to 
Dombrowski 
Pfister, 380 U.S. 479, 85 
Corcoran, 122 U.S. 
s 
S.Ct. 1116, 1 LI.24:1 22 (1965), and 
Reed Enterprise 
App.D.C. 387, 
P.24 519 (1966), 
stressed in its memorandum the absence 
of any alleged infringement of first 
amendment rights. While activities pro-
tected by the first amendment are a 
common basis for injunctive relief 
against actual or threatened criminal 
prosecution, they are not the only activi-
ties worthy of such protection in appro-
priate circumstances. See, e.g., Hynes 
v. Grimes Packing Co., 337 U.S. 86, 98, 
Co,274 U.S. 445,
69 S.
 968, 98 L.Ed. 1281 (1949); 
Cline 
Prink Dairy 
451, 4 
Ct. 681, 71 L.Ed. 1146 (1927); 
I 
Pierce 
Society of Sisters, 268 U.S. 
510, 5 , 45 S.Ct. 671, 69 L.Ed. 1070 
(1925); Hygrade Provision Co. k Sher-
man. 266 U.S. 497, 600, 46 .Ct. 41, 69 
L.Ed 402 (1926); Terrace 
Thompson, 
I 
263 U.S. 197, 214, 4eXCL 5, 68 L.Ed. 
255 (1923); Truax 
Reich, 239 U.S. 
33, 87, 36 S.Ct. 7, 
Ed. 131 (1915). 
We do not, by affirming, therefore, sug-
gest agreement with a possible interpre-
tation of the district court opinion, that 
first amendment rights are a sins qua 
non for injunctions against criminal 
prosecutions. 
[4] But, when, as here, the only al-
legation advanced in support of an in-
junction against a pending federal crim-
inal prosecution is the inconvenience of 
that trial and the preference for a civil 
remedy before three judges instead of 
one, the complaint fails to state a claim 
for injunctive relief, and does not fall 
within the province of 28 U.S.C. §§ 2282 
and 2284. 
EFTA00191868

474 
431 FEDERAL REPORTER, 24 SERIES 
[5] What is here approved is a judi-
cious screening by the district courts of 
applications for 
three-judge 
panels. 
That screening should be done cautious-
IY, of course, because of the procedural 
and jurisdictional morass into which liti-
gants may be led by these troublesome 
three-judge court statutes. 28 U.S.C. Of 
2281, 2282, and 2284. But the role of 
the single district judge should be more 
than a conditioned reflex to such an ap-
plication, especially now that the Su-
preme Court has provided for judicial re-
view in the circuit courts of appeals at 
least when an appealable order has been 
entered' In most if not all cases, refusal 
to convene a three-judge court will be 
accompanied by the denial of a prelimi-
nary injunction and hence will be ap-
pealable. 28 U.S.C. § 1292 (1964). 
[8, 7] One other problem remains. 
The district court not only denied appel-
lants' motions to convene a three-judge 
court and to grant a preliminary injunc-
tion, but also dismissed the complaint. 
On another record the latter step might 
well be questionable, since it would dis-
pose, without hearing, of a possible 
claim for declaratory relief. See Note, 
The Federal Anti-Injunction Statute and 
Declaratory Judgments in Constitutional 
Litigation, 83 Harv.L.Rev. 1870 (1970). 
Such relief, assuming subject matter ju-
risdiction, would be available from a sin-
gle judge. But the Declaratory Judg-
ment Act, 28 U.S.C. §§ 2201-02 (1964), 
is limited in operation to those cases 
which would be otherwise within the ju-
risdiction of the federal courts. Juris-
diction in this case depends upon 28 U. 
S.C. § 1331 (1964), and there is no alle-
gation in the complaint or affidavits of 
the requisite jurisdictional amount. The 
situation might be different if the suit 
challenged a state statute and jurisdic-
tion were asserted 
er 28 U.S.C. 
1343 (1964). Hague 
C. I. 0., 807 U. 
S. 496, 518, 69 S.Ct. 
, 83 L.Ed. 1423 
4. See cases cited at 472 supra. 
(1939). The complaint here was proper-
ly dismissed. The order of the district 
court will be in all respects affirmed. 
All motions made in this court and not 
heretofore disposed of will be denied. 
UNITED STATES of America, 
Plsbitlft•Appellee, 
U 
Griffin Thomas WILLIAMS, Jr 
Defendantappellant. 
No. 29219 
Summary Calendar" 
United States Court of Appeals, 
Fifth Circuit. 
Oct. 2, 1970. 
Courts Srnos 
Criminal Law 8=01133 
On factors delinear in National 
Labor Relations Board 
Amalgamated 
Clothing Workers of America, AFL-
CIO, Local 990, 6th Cir., 1970, 430 F.2d 
966, under U.S.Ct. of App. 6th Cir., 
Rules 18 and 21, 28 U.S.C.A., cue was 
placed on summary calendar and decided 
without opinion. 
Appeal from the United States Dis-
trict Court for the Northern District of 
Georgia at Atlanta; Newell Edenfield, 
District Judge. 
William W. Barham, court-appointed, 
Atlanta, Ga., for appellant. 
John W. Stokes, Jr., U. S. Atty., Allen 
I. Hirsch, Asst. U. S. Atty., Atlanta, Ca.. 
for appellee. 
• Rule 18, 6th Cir.; Su LAsu EuterprIns, 
Inc. v. Citizens Casualty Co. of New York 
it al., 6th Clr., 1970, 481 T.2d 409, Pan 
EFTA00191869

WALLACH I CITY OF PAGEDALE 
671 
ate as 976 V.24671 (1967) 
allowance during the four year protec-
tive period. 
Southern did not offer or advise Shep-
pard of other railroad employment upon 
his release following the change in 
A&EC ownership. Soon after his dis-
charge, Sheppard learned from an inde-
pendent source of an open job as spike 
puller with an A&EC labor gang out of 
Morehead City. lie had worked out of 
New Bern while a diesel mechanic's help-
er. 
Southern admits that Sheppard 
sought and obtained the open position on 
his own initiative. Sheppard's new em-
ployment required different skills ti an 
his old job and paid him a lower 
age 
rate. 
Sheppard was discharged from the 
new position as spike puller after only a 
week because of his intemperate pro-
test tt when asked to assist in lifting a 
half-ton motor car from the tracks. 
[4) We believe the district court was 
correct in treating Sheppard's employ-
ment as a spike puller "in a manner as 
if [he] • 
• 
• 
had found work with 
an employer totally unrelated to rail-
roading." " It was, therefore. unneces-
sary to determine whether Sheppard's 
second dismissal was for good cause. 
(5) We interpret the "Oklahoma 
conditions" to mean that an employee is 
not "retained" in a position—and thus 
displaced as opposed to dismissed—un-
less retained at the instance of the rail-
road. We think that displacement con-
ditions should not be substituted for 
dismissal conditions except where an 
employee receives an offer from the rail-
road to continue in or return to a new 
position for which he is qualified. Shep-
pard's second discharge may or may not 
have resulted from his inability to per-
form the new work he attempted. Such 
inability could well account for insub-
ordination and intemperance of lan-
guage. We need not decide—because he 
was not notified by the carrier of a posi-
tion "the duties of which he [was] • 
• 
II. He said: "Walt a God damn minute." 
12. Sheppard 1 28outhern Ry. Co, 258 F. 
Rupp. 217. 
(1966). 
qualified to perform." is Thus, Shep-
pard's obtaining a job as spike puller on 
his own initiative, as the district court 
thought, is analogous to a dismissed rail-
road worker unsuccessfully attempting 
work other than railroad employment. 
Such a situation is within the scope and 
purpose of the dismissal benefits ac-
corded under the Act. 
Whether the second dismissal was for 
cause in the sense that Sheppard could 
not do the work or for cause in the sense 
of insubordination, we think the district 
court rightly adjudged that he lost his 
job as a diesel mechanic's helper as a re-
sult of the acquisition of the A&EC by 
Southern. Southern is, of course, en-
titled to reduce the compensation owing 
to Sheppard by the amount of his tempo-
rary earnings—whether as a spike puller 
with the A&EC or In other employment 
10,869, Reversed. 
10,870, Affirmed. 
10,873, Affirmed. 
Richard WALLACH, Appellant, 
I 
CITY OF PAGEDALE et aL, Appellees. 
No. 18680. 
United States Court of Appeals 
Eighth Circuit. 
May 9, 1967. 
Civil rights action seeking redress 
for the deprivation of rights and con-
spiracy to interfere with civil rights. 
The United States District Court for the 
Eastern District of Missouri, Roy W. 
Harper, C. J., dismissed the action, 41 
F.R.D. 647, and appeal was taken. The 
Court of Appeals, Van Oosterhout, Cir-
cuit Judge, held that civil rights action 
13. Oklahoma Conditions I 6. supra. 
EFTA00191870

672 
376 FEDERAL REPORTER, 2d BERMS 
was properly dismissed for lack of ju-
risdiction where plaintiff did not, by his 
pleadings or in any other manner, meet 
the burden resting upon him to establish 
federal jurisdiction. 
Affirmed. 
See also 264 F.Supp. 271. 
1. Injunction 4=1106(1) 
Courts of equity do not ordinarily 
restrain criminal prosecutions. 
2. Injunction 4=106(1) 
No person is immune from prosecu-
tion in good faith for his alleged crim-
inal acts, and imminence of prosecution 
even though alleged to be in violation of 
constitutional guarantees is not ground 
for equity relief since lawfulness or con-
stitutionality of statute or ordinance on 
which prosecution is based may be deter-
mined as readily in criminal case as in 
suit for injunction. 
3. Courts e=t08(7) 
Where threatened criminal prosecu-
tion is by state officers for alleged vio-
lations of state law, the state courts are 
final arbiters of meaning and application 
of state law, subject only to review by 
United States Supreme Court on federal 
grounds appropriately asserted. 
4. Constitutional Law 45 236(3) 
Conferring of discretionary power 
upon administrative board to grant or 
withhold permission to carry on trade or 
business properly subject to regulation 
under police power does not violate 
Fourteenth Amendment. U.S.C.A.Const. 
Amend. 14. 
t Courts 4=280.2 
Federal courts have only that ju-
risdiction which Congress, acting within 
the limits of the Constitution, confers 
upon them. 
6. Federal Civil Procedure 4=4742 
Civil rights action was properly dis-
missed for lack of jurisdiction where 
plaintiff did not, by his pleadings or in 
any other manner, meet the burden rest-
ing upon him to establish federal juris-
diction. 28 U.S.C.A. §§ 1331, 1343. 
Richard Wallach, Wellston, Mo., made 
argument pro se and filed brief pro se. 
Paul J. Boll, St. Louis, bfo., for ap-
pellee and filed typewritten brief. 
Before VAN OOSTERHOUT, MAT-
THES and LAY, Circuit Judges. 
VAN OOSTERHOUT, Circuit Judge. 
The trial court dismissed this action 
commenced by plaintiff Wallach which 
asserted jurisdiction in the federal court 
under 28 U.S.C.A. § 1931 (federal ques-
tion) and 28 U.S.C.A. § 1343 (violation 
of civil rights.) Diversity jurisdiction is 
not asserted and does not exist. The 
basic grievances asserted here 
the 
same as those urged in Wallach iie City 
of Pagedale, 8 Cir., 369 F.2d 57, and are 
asserted damages flowing from alleged 
violation by defendants of plaintiff's con-
stitutional rights. 
Defendants moved for dismissal of the 
action on the following grounds: 
"(a) That 
the 
claim 
asserted 
againt the defendants is not a claim 
upon 
hich relief can be granted; and 
"(b) That this Court has no juris-
diction over the subject matter of the 
claim presented between the plaintiffs 
and the defendants. 
"(c) That the petition of plaintiff 
fails to comply with Rule 8, Federal 
Rules of Civil Procedure in that the 
averments therein are not simple, con-
cise or direct, in respect to jurisdic-
tion, facts or relief and is so vague, 
ambiguous, rambling and full of ir-
relevant averments that these defend-
ants cannot be reasonably required to 
frame a responsive pleading thereto." 
The motion to dismiss was sustained. 
The case was dismissed without preju-
dice for want of jurisdiction. Plaintiff 
has appealed from such dismissal. 
The trial co 
cited our former opin-
ion
i t
 in Wallach 
City of Pagedale, supra. 
We there state : 
"There is no doubt that the com-
plaint does not comply with Rule 8 
(a) as it does not contain 'a short and 
plain statement of the claim showing 
that the pleader is entitled to relief.' 
EFTA00191871

WALLACH v. OITT OP PAGEDALE 
673 
cit. as 3143 F 2d VI MCI 
The complaint is confusing, ambigu-
ous, redundant, vague, and, in some 
respects, unintelligible. 
It is also 
highly argumentative." 369 F.2d 57, 
58. 
We went on to state that the pleadings, 
even if given a liberal interpretation, do 
not state a cause of action against the 
defendants within the jurisdiction of the 
federal court, setting forth the basis for 
such conclusion and supporting author-
ities. The complaint now before us is 
much more extensive than the former 
complaint but in our view It is in great-
er violation of Rule 8 than the complaint 
previously considered. 
Plaintiff in his present voluminous, 
repetitious, confusing and argumentative 
complaint asserts that he acquired real 
estate in an unincorporated area in St. 
Louis County which was zoned as heavy 
industrial property upon which he was 
permitted to and did establish a junk 
yard and automobile wrecking yard in 
conformity with the St. Louis County 
zoning ordinance adopted in 1946. It is 
then asserted that plaintiff's property 
was maliciously and illegally annexed to 
the city of Pagedale but no substantial 
legal grounds are asserted to support the 
claim of invalid annexation. Plaintiff 
next asserts in a highly inflammatory 
manner that numerous zoning and licens-
ing ordinances were passed by the city 
of Pagedale both before and after the 
annexation in violation of numerous 
rights guaranteed plaintiff by the Con-
stitution. Some of such ordinances are 
cited by number and excerpts of part of 
the ordinances are set out. 
As shown by the complaint, Ordinance 
No. 88 passed by the city before the an-
nexation provides for the zoning of the 
city but specifically carries a provision 
reading: 
"The lawful use of land, buildings 
and structures existing at the time of 
the adoption of this ordinance may be 
continued, although such use does not 
conform to the provisions thereof, but 
if such non-conforming use is discon-
tinued, any use in the future of such 
premises shall be in conformity with 
the provisions of this ordinance." 
It would appear from the complaint that 
Ordinance No. 88 was amended in 1954 
to zone the annexed property, including 
plaintiff's property, with the provisions 
of Ordinance No. 88 made applicable to 
the annexed property. 
Thus, on their face the ordinances 
pleaded with respect to zoning appear to 
protect the rights of nonconforming 
users and the basis of the asserted in-
validity of such ordinances does not rea-
sonably appear in the complaint. 
It would seem from the complaint and 
statements in oral argument that there 
is a question whether the prior junk yard 
operation was the plaintiff's own or by a 
corporation in which he was interested 
and there is also some intimation that the 
prior use of the property may have been 
abandoned. 
Plaintiff's principal claims of wrongs 
committed by the defendants appear to 
be: (1) His arrest and conviction in the 
Pagedale police court for operating a 
junk yard without a license; (2) the 
city's refusal to permit plaintiff to use 
his premises for its highest and best use 
—a junk yard—thereby depriving plain-
tiff of income needed to pay mortgage in-
debtedness and the refusal of the city to 
grant a license to a prospective purchaser 
which resulted in plaintiff's inability to 
make an advantageous sale of such prop-
erty, and his loss of the property through 
mortgage foreclosure for a sum consider-
ably under its fair value. 
Plaintiff 
prays for declaratory judgment and for 
such further relief as may be just. 
It would appear that the claimed griev-
ances arise primarily out of the licensing 
requirements of the city ordinances. 
(1-3) With respect to the propriety 
of federal courts interfering with state 
criminal prosecutions, the rule is stated 
in Douglas v. City of Jeannette, 819 U.S. 
167, 163-164, 63 S.Ct. 877, 881, 87 L.Ed. 
1324, as follows: 
"Congress, by its legislation, has 
adopted the policy, with certain well 
defined statutory exceptions, of leav-
EFTA00191872

674 
376 FEDERAL REPORTER, 2/1 SERIES 
ing generally to the state courts the 
trial of criminal cases arising under 
state laws, subject to review by this 
Court of any federal questions in-
volved. • • 
• 
"It is a familiar rule that courts of 
equity do not ordinarily restrain aim-
inal prosecutions. No person is im-
mune from prosecution in good faith 
for his alleged criminal acts. Its im-
minence, even though alleged to be in 
violation of constitutional guarantees, 
is not a ground for equity relief since 
the lawfulness or constitutionality of 
the statute or ordinance on which the 
prosecution is based may be deter-
mined as readily in the crimin 
as in a suit for an i 
nction. 
& Farnum Mfg. Co. 
[City of 
Angeles, 189 U.S. 
[23 S.Ct 498, 
47 L.Ed. 778) ; Fenner v. Boykin, 271 
U.S. 240 [46 S.Ct. 492, 70 L.Ed. 927]. 
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 ap-
plication, subject only to review by this 
Court on federal grounds appropriate-
ly 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 ir-
reparable injury 'both great and im-
mediate.'" 
See Outdoor American Corp.) City of 
Philadelphia, 3 Cir., 333 F.2d 
3, 965. 
No extraordinary circumstances are 
alleged in our present case which would 
warrant a departure from the rule just 
stated. On oral argument, it developed 
that plaintiff appealed from his convic-
tion and that such appeal is still pending. 
We cannot ascertain from the com-
plaint the precise basis or the legal 
grounds upon which plaintiff claims that 
a license was denied to him to operate 
his junk yard in violation of his con-
stitutional rights. Plaintiff quotes part 
of Ordinance No. 23 relating to licensing 
of junk dealers and license fees and then 
asserts that his business does not fall 
within any of the categories listed in the 
ordinance. 
Later plaintiff refers to 
Ordinance No. 227 relating to regulating, 
licensing and license fees for automobile 
lots, and No. 228 with respect to licensing 
and license fees for salvage yards, both 
enacted in 1959. Neither of such ordi-
nances are set out in whole or pertinent 
part. No ascertainable attack is made 
on the validity of such ordinances but 
rather the claim is made that the plain-
tiff's business does not fit the classifica-
tions covered by the ordinances. 
It 
would appear that the questions raised 
primarily relate to the interpretation of 
the ordinances and that such questions 
are questions of state law. 
Plaintiff does not state what attempt, 
if any, he made to comply with the li-
censing ordinances nor make any clear-
cut allegation that he made any proper 
application for a license, and if so. that 
any basis exists for a determination that 
the city abused its discretion in with-
holding a license. 
[4] In Mosher I Beirne, 8 Cir., 857 
F.2d 638, 640-841, 
e sustained the dis-
missal of plaintiff's action based on 28 
U.S.C.A. § 1343, wherein plaintiff claim-
ed a city improperly refused him a li-
cense to operate a public dance. 
We 
stated: 
"The rights and necessity for re-
strictions in municipal zoning ordi-
nances have long been sustained. Vil-
lage of Euclid, Ohio I Ambler Realty 
Co., 272 U.S. 366, 47 S.Ct. 114, 71 
L.Ed. 303 [54 A.L.R. 1016] (1926). 
It has also been recognized that the 
conferring of discretionary power up-
on administrative boards to grant or 
withhold permission to carry on a 
trade or business which is the proper 
subject of regulation within the police 
power of the state is not violative of 
rights secured by the Fourteenth 
Amendment, People of State of New 
EFTA00191873

UNITED STATES I OUSTER CHANNEL WINO CORPORATION 
cut so 370 F.34 475 (1$47) 
I
York ex rel. Lieberman 
Van De 
Carr, 199 U.S. 662, 26 S. 1 144, 60 
UNITED STATES of America, 
L.Ed. 305 (1905); and that ordi- 
Appellee, 
nances validly prohibiting the opera-
tion of certain businesses without first 
obtaining municipal permission do not 
deprive one of his property without 
due process of law nor den 
equal protection of the law, 
City of St. Louis, 194 U. 
S.Ct. 673, 48 j.Ed. 1018 (1904)." 
In Garfinkle 
Superior Court of New 
Jersey, 3 Cir.. 78 F.2d 674, the court 
in affirming the dismissal of an action 
based on violation of federal constitu-
tional rights concluded, "His stated fun-
damental facts, irrespective of their 
fantastic nature, certainly do not show 
clearly and distinctly that this suit is 
based on a federal question." What was 
said there is fully applicable here. 
[5] Federal courts have only that ju-
risdiction which Congress, acting with-
in the limits of the Constitution, confers 
upon them. 
"The party invoking the district 
court's original jurisdiction has the 
duty of affirmatively alleging juris-
diction; and, if his allegations are 
properly controverted, the burden of 
establishing jurisdiction. Lack of fed-
eral jurisdiction may be raised by mo-
tion or in the responsive pleading. 
And 'whenever it appears by sugges-
tion of the parties or otherwise that 
the court lacks jurisdiction of the sub-
ject matter, the court shall dismiss 
the action.' " 1 Moore's Federal Prac-
tice
I
 2d Ed. 110.60 [4]. 
See McNutt 
General Motors Accept-
ance Corp., 2 
U.S. 178, 189, 56 S.Ct. 
780, 80 L.Ed. 1136. 
Federal Rules of 
Civil Procedure No. 8(a) (1). 
[6] Defendants have by motion at-
tacked the jurisdiction of the federal 
court to hear this case. Plaintiff has not 
by his pleadings or in any other manner 
met the burden resting upon him to es-
tablish federal jurisdiction. 
The judgment dismissing the petition 
without prejudice for the lack of juris-
diction is affirmed. 
I 
675 
CUSTER CHANNEL WINO CORPORA-
TION and Willard R. Custer, 
Appellants. 
No. 10399. 
United States Court of Appeals 
Fourth Circuit. 
Argued Feb. 8, 1967. 
Decided April 3, 1967. 
Criminal contempt proceeding ini-
tiated by government for violation of in-
junction prohibiting use of interstate 
commerce and mails to promote sales of 
unregistered securities. 
The United 
States District Court for th 
' 
of 
Maryland, at Baltimore, 
L. 
Winter, J., 247 F.Supp. 481, en r 
judg-
ment of conviction, and appeals were 
taken. The Court of Appeals, Sobeloff, 
Circuit Judge, held, inter alia, that where 
defendants had already breached securi-
ties law proscribing sale of unregistered 
securities to purchasers without access to 
pertinent financial information and had 
been enjoined not to do so again, but 
knowingly repeated selfsame forbidden 
acts, to be adjudged in criminal contempt, 
it was enough to show that they inten-
tionally committed acts constituting vio-
lation with full knowledge of all relevant 
circumstances, and proof of evil pur-
pose or bad motive, that is, proof of a 
specific intent to violate the injunction, 
was not required. 
Affirmed. 
1. Licenses 4=181(47) 
Sale of securities was public offer-
ing, and not exempt from registration as 
a private offering, where none of pur-
chasers had access to kind of informa-
tion that would have become available to 
them through a registration statement, 
although purchasers may have been 
sophisticated investors. Securities Act 
of 1933, Schedule A, 16 U.S.C.A. § naa, 
Schedule A; Securities Act of 1988, 
EFTA00191874

APPEAL 
Cite as 300 
inal judgment, it is not unlikely that ap-
pellees would have attempted to prepare 
themselves with evidence relating to the 
disputed amount. That the appellant's 
representation in its pre-trial memoran-
dum evidenced its understanding of its 
burden is confirmed by the fact that it 
did indeed undertake to offer proof in 
the presentation of its case in chief. It 
is essential to the orderly disposition of 
litigation that parties, as well as courts, 
be able to rely on procedural courses 
which have been clearly defined and es-
tablished in properly conducted pre-trial 
proceedings. 
(9) The entire record supports the 
District Court's conclusion that the bur-
den of proof in this case rested upon 
appellant. It had agreed to meet it, and 
it did not do so. The judgment is 
Affirmed. 
MmHg PITCH 
In the Matter of the Testimony of PhWip 
Kilter, Sr., Before the United States 
Grand Jury-65 GJ 2013. 
Appeal of Phillip KITZER, Sr. 
No. 15650. 
United States Court of Appeals 
Seventh Circuit. 
Nov. 18, 1966. 
Petition seeking relief for allegedly 
wrongful transmission of testimony, 
given to Grand Jury In Illinois, to Grand 
Jury in Minnesota. The United States 
District Court for the Northern District 
of Illinois, Eastern Division, William J. 
Campbell, Chief Judge, entered judg-
ment dismissing the petition without a 
hearing, and petitioner appealed. 
The 
Court of Appeals held, inter alia, that 
OF EITZER 
677 
F.2d ar7 MN) 
denial of request for order suppressing 
evidence consisting of testimony al-
legedly "tainted" on theory that such 
testimony to Grand Jury in Illinois was 
wrongfully transmitted to Grand Jury in 
Minnesota was properly denied without 
hearing, absent allegations which had not 
been concluded by Minnesota court's de-
nial of petitioner's motion to dismiss 
Minnesota indictment. 
Affirmed. 
1. Injunction 4=105(1) 
Mandamus t=01 
District court was without jurisdic-
tion to control discretionary actions of 
Attorney General and could not, on theory 
that testimony before Grand Jury in 
Illinois was wrongfully transmitted to 
Grand Jury in Minnesota, grant relief 
by way of an order directing Attorney 
General to move Minnesota District 
Court to dismiss indictment or an order 
restraining further proceedings in prose-
cution of Minnesota indictment. 
U.S. 
C.A.Const. Amend. 5; Fed.Rules Crim. 
Proc. rule 6(e), 18 U.S.C.A. 
2. Criminal Law 6=394.6(5) 
Denial of request for order suppress-
ing evidence consisting of testimony al-
legedly "tainted" on theory that such 
testimony to Grand Jury in Illinois was 
wrongfully transmitted to Grand Jury 
in Minnesota, was properly denied with-
out hearing, absent allegations which had 
not been concluded by Minnesota court's 
denial of petitioner's motion to dismiss 
Minnesota indictment. 
U.S.C.A.Const. 
Amend. 5; Fed.Rules Crim.Proc. rules 
6(e), 41(e). 18 U.S.C.A. 
Doris A. Coonrod, Chicago, III., for 
appellant. 
I
Edward 
lianrahan, U. S. Atty., 
Nicholas M. arzen, Chicago, II 
pellee, John Peter Lulinski, 
Jay Weiner, Asst. U. S. Attys., o counse . 
Before 
KNOCH, 
KILEY 
and 
SWYGERT, Circuit Judges. 
EFTA00191875

678 
369 FEDERAL REPORTER, 2d SERIES 
PER CURIAM. 
Petitioner Phillip Kitzer, Sr., contends 
that he was denied due process in viola-
tion of the Fifth Amendment of the Con-
stitution because the district court denied 
him a hearing before entering judgment 
dismissing his sworn petition. We have 
considered the briefs and the record in 
the light of the oral arguments made in 
this court, and we affirm the judgment. 
The substance of the petition is that 
Kitzer gave certain testimony to the 
Grand Jury in the Northern District of 
Illinois, Eastern Division, on the promise 
of the Assistant United States Attorney 
that he would not be named in any indict-
ment based upon that testimony; that 
notwithstanding the promise, the testi-
mony given was transmitted without au-
thority of a court order to a Grand Jury 
in Minnesota in violation of Fed.R. 
Crim.P. 6(e); that the subsequent or-
der of the District Court for the North-
ern District of Illinois authorizing trans-
mission of that testimony to the Minne-
sota Grand Jury was entered without 
knowledge of the broken promise to 
Kitzer and without knowledge that the 
testimony had already been sent to Min-
nesota; and that by virtue of the "tainted 
testimony" petitioner was indicted by the 
Minnesota Grand Jury following the 
breach of the promise of the Assistant 
United States Attorney. 
The relief prayed was an order direct-
ing the Attorney General of the United 
States to move the Minnesota District 
Court to dismiss the indictment or, al-
ternatively, for an order restraining fur-
ther proceedings in the prosecution of 
the Minnesota indictment or an order 
suppressing as evidence in that prosecu-
tion the disclosures made by petitioner to 
the Grand Jury in the Northern District 
of Illinois. 
(1] We think it is clear that the dis-
trict court was without jurisdiction to 
control discretionary actions of the At-
torney General or to grant the relief ri 
quested with respect to him. Goldberg 
_Hoffman, 225 F.2d 463 (7th Cir. 1955). 
(2] The request for an order sup-
pressing the "tainted" evidence pursuant 
to Fed.R.Crim.P. 41(e) contained no alle-
gations which had not been concluded by 
the Minnesota court's denial of petition-
er's motion to dismiss the Minnesota 
indictment. No authority has been cited 
to support Kitzer's claim to a hearing 
on his 41(e) motion when a previous mo-
tion on the same grounds was denied. 
We see no merit in this contention and 
hold that the district court did not err in 
denying the 41(e) motion without a hear-
ing. 
Affirmed. 
Roy MUNDRY and Charlotte Mondry, 
Appellees, 
GREAT AMERICAN INSURANCE COM-
PANY, Appellant. 
No. 105, Docket 30364. 
United States Court of Appeals 
Second Circuit. 
Argued Oct. 27, 1966. 
Decided Dec. 14, 1966. 
Appeal from judgment of United 
States District Court for the District of 
Connecticut, 248 F.Supp. 817, Robert C. 
Zampano, J., holding that the appellant 
had waived, and was estopped from as-
serting, its contractual right to disclaim 
its liability under automobile insurance 
policy. The Court of Appeals, Irving R. 
Kaufman, Circuit Judge, held that where, 
Kaufman, Circuit Judge, held that where 
insurer's disclaimer of liability on auto-
mobile liability policy because of non-
cooperation of insureds was conceded to 
be timely, plaintiff injured parties were 
free to discontinue their suit if they 
thought defendant insureds were judg-
EFTA00191876

32 
951 FEDERAL REPORTER, Ed SERIES 
prosecution and trial on the earlier 
charge of "uttering a forged instru-
ment." He was subsequently found guil-
ty by a jury in the Circuit Court of the 
City of St. Louis. 
On December 20, 1963, under a writ 
of habeas corpus, appellant was again 
brought before the United States Dis-
trict Court and, pursuant to the verdict 
of guilty returned against him on No-
vember 6. 1063, the court sentenced him 
to two and one-half years imprisonment. 
He was then returned to the custody 
of the State of Missouri and, on Feb-
ruary 3, 1964, pursuant to the guilty ver-
dict in the Circuit Court of the City of 
St. Louis on the charge of "uttering a 
forged instrument", appellant was sen-
tenced to eight years imprisonment to the 
Missouri State Department of Correc-
tions. lie was also sentenced to a con-
current term of eight years imprison-
ment on his plea of guilty to the earlier 
charge of "first degree robbery". Appel-
lant is now in the process of serving 
these terms at the Missouri State Pen-
itentiary. 
[1] A § 2255 motion is not available 
to attack a sentence which a prison 
has not commenced to serve. Ellison r. 
United State 
263 F.2d 395 (10 Cir. 
1969); Cain 
United States, 
 49
870 (8 Cir. 1 
). In Heflin 
United 
States, 868 U.S. 416, 79 S.Ct. 461, 3 
L.Ed.2d 407 (1959), the Supreme Court 
stated that: "Section 2255 is available 
only to attack a sentence under which a 
prisoner is in custody." Id. at 418, 79 
S.Ct. at 463. 
[2] Appellant's § 2255 motion is pre-
mature. He is presently serving, in the 
Missouri State Penitentiary, the concur-
rent eight year sentences imposed by the 
Circuit Court of the City of St. Louis. 
He will not begin to serve the two and 
one-half year sentence imposed by the 
Federal District Court, which he attacks 
in this § 2265 proceeding, until he has 
finished service of the State terms. 
The order appealed from is affirmed. 
Dr. Andrew C. IVY, PlaIntiffappellant, 
I 
Nicholas KATZENBACH, Attorney Gen. 
r
of the United States, and Edward 
R enrahan, United States Attorney 
the Northern District of Illinois, De-
tendantsappollees. 
No. 15094. 
United States Court of Appeals 
Seventh Circuit 
Sept. 22, 1965. 
Certiorari Denied Dec. 13, 1965. 
See 86 S.Ct. 437. 
Physician, who had promoted drug 
used in treatment of cancer, and who had 
been charged with certain offenses by in-
dictment because of his promotion of 
drug, brought suit against the Attorney 
General and the United States Attorney 
for the Northern District of Illinois to 
enjoin them from proceeding against him 
in the criminal case and for appointment 
of impartial medical commission to make 
a court supervised clinical test of the 
efficacy of the drug in the treatment of 
cancer. The United States District Court 
for the Northern District of Illinois, 
Eastern Division, Bernard hf. Decker, J., 
entered judgment adverse to the physi-
cian, and the physician appealed. The 
United States Court of Appeals, Castle, 
Circuit Judge, held that trial of the crim-
inal case prior to an impartial clinical 
test of the efficacy of the drug in the 
treatment of cancer would not violate the 
6th and 6th Amendment rights to a fair 
trial and due process of law on ground 
that resolution of the efficacy issue in-
volved matter beyond the intelligence 
and comprehension of the Jury. 
Judgment affirmed. 
1. Constitutional Law 43=268 
Federal avil Procedure 0=1961 
InJuneCon a=105(1) 
Prosecution of physician, who had 
promoted drug used in treatment of can-
cer, prior to impartial clinical test of effi-
cacy of drug would not violate physician's 
5th and 6th Amendment rights to fair 
trial and due process of law, and physi-
cian was not entitled to injunction to en-
EFTA00191877

join Attorney General and United States 
Attorney from proceeding against him in 
criminal case and appointment of impar-
tial medical commission to make court 
supervised clinical teat of efficacy of 
drug. 18 U.S.C.A. §§ 371, 1001, 1341; 
Federal Food, Drug, and Cosmetic Act, § 
1 et seq., 21 U.S.C.A. § 301 et seq. 
2. Injunction 4=405(1) 
Mere complexity of factual issues to 
be determined by jury in criminal case is 
not constitutional basis for precluding 
trial of criminal case by injunction. 
Melvin L. Klafter, Leonard R. Harten-
feld, Chicago, Ill., for appellant. 
Edward,. Hanrahan, U. S. Atty., John 
Peter Lulinski, Thomas W. James, Asst. 
U. S. Attys., Chicago, Ill., William W. 
Goodrich, Asst. Gen. Counsel, Joanne S. 
Sisk. Atty., Dept. of Health, Education, 
and Welfare, Washington, D. C., for ap-
pellees. 
Before CASTLE, KILEY, and SWY-
GERT, Circuit Judges. 
CASTLE. Circuit Judge. 
The plaintiff-appellant, Dr. Andrew C. 
Ivy, brought suit in the District Court 
against Nicholas Katzenbach, Attorney 
le
neral of the United States, and Edward 
. Hanrahan, United States Attorney for 
e Northern District of Illinois, the de-
fendants-appellees, seeking to enjoin 
them from proceeding against him in a 
pending criminal cause and for the ap-
pointment of an impartial medieal com-
mission to make a court supervised clini-
cal test of the efficacy of the drug Kre-
biozon in the treatment of cancer. Plain-
tiff's complaint was filed subsequent to 
the return of the indictment, but prior 
to the commencement of the criminal 
trial! Defendants' motion to dismiss 
on the ground that the complaint does 
not state a claim on which relief can be 
granted was allowed and the action was 
dismissed. Plaintiff appealed. 
IVY I EATZENBAOH 
du all ti PM 32 (2165) 
The prosecution sought to be restrained 
involves an indictment charging Dr. Ivy, 
together with three individual and one 
corporate co-defendants, with conspiracy 
in violation of 18 U.S.C.A. § 371. Dr. Ivy 
is named in additional substantive counts, 
alleged to be overt acts in furtherance of 
the conspiracy, which charge violations of 
18 U.S.C.A. § 1001 (filing false informa-
tion with agencies of the government), 
violations of 18 U.S.C.A. § 1341 (use of 
the mails in furtherance of a scheme to 
defraud), and violations of the Federal 
Food, Drug, and Cosmetic Act (21 U.S. 
C.A. § 301 et seq.). 
Plaintiff's complaint alleges in sub-
stance that plaintiff is a medical scientist 
of outstanding reputation who has been 
engaged, since approximately 1980, in ex-
perimental studies on the drug Krebio-
zen; his study and the reports of physi-
cians submitted to him have demonstrated 
to his satisfaction that Krebiozen has 
produced favorable results as an anti-
cancer agent and is useful in alleviating 
the pain usually present in terminal 
cases; plaintiff, as scientific adviser to 
the Krebiozen Research Foundation, has 
never received any remuneration for his 
advice, and has never submitted any ap-
plications to the United States with the 
object of becoming a sponsor or manu-
facturer of the drug; he has a mandate 
from the Illinois legislature to conduct 
research and investigation on Krebiozen; 
the gist of the indictment against him Is 
that Krebiozen is a fake cancer drug; the 
indictment is based upon reports of the 
National Cancer Institute and the Food 
and Drug Administration which are er-
roneous; the only way to prove whether 
Krebiozen is an effective treatment for 
cancer is by clinical test which no Federal 
agency has undertaken; the Secretary of 
Health, Education, and Welfare by per-
sisting in the view that Krebiozen is a 
fake, by refusing to acknowledge that 
there is a difference of opinion about the 
drug's merits, and by refusing to conduct 
a clinical test, has caused the dissemina-
tion of adverse publicity and is acting 
1. At the time of the preparation of this opinion the criminal trial was still in progress. 
551 r.24—s 
33 
EFTA00191878

34 
351 FEDERAL REPORTER, 2d SERIES 
arbitrarily and far beyond the exercise of 
administrative prerogative. and has, 
through his agents, discouraged physi-
cians from prescribing Krebiozen by im-
plied threats of reprisal by medical as-
sociations or the government, and has 
attempted to discourage patients from 
using the drug; this conduct of the 
Secretary has caused Ivy to lose prestige 
as a professional man, and his rights to 
practice medicine, to conduct research, 
and to teach and advocate ideas have been 
infringed; plaintiff has a legal and moral 
right to use any drug he regards as safe 
in treating cancer patients and is com-
pelled to continue to use Krebiozen, which 
can only result in a multiplicity of civil 
and criminal actions; only a court of 
equity, and not a jury, can intelligently 
determine whether Krebiozen is a fake 
cancer drug and this determination can 
only be made after a court supervised 
clinical test; and that to require plaintiff 
to defend himself in the criminal trial 
without a prior clinical test of the drug 
will deprive him of due process of law. 
The complaint asserts that the acts com-
plained of violate rights guaranteed to the 
plaintiff by the 1st, 5th and 6th Amend-
ments to the Constitution of the United 
States. 
The complaint does not challenge the 
constitutional validity of any of the stat-
utes the indictment charges the plaintiff 
with violating nor Is any allegation made 
that either of the defendants sought to be 
restrained is acting other than within the 
discretionary scope of his duties concern-
ing enforcement of the laws. Apart from 
the question of the sufficiency of any of 
the factual allegations made with respect 
to the actions and conduct of the Secre-
tary of Health, Education, and Welfare 
to present an issue involving the infringe-
ment of any constitutional right of the 
plaintiff, we perceive no basis either from 
the averments of the complaint or the ap-
plicable law for imputing to the defend-
ants the alleged conduct of the Secretary. 
And. pl ' tiff's reliance upon Philadel-
phia Co.in
U.S.
Stimson, 223 U
 605, 32 S.Ct. 
340, 56 .Ed. 570 as a controlling prec-
edent for the making of such imputation 
is wholly inapposite. 
[1] We are unpersuaded by the plain-
tiff's contention that a trial prior to an 
impartial clinical test of the efficacy of 
Krebiozen in the treatment of cancer 
would violate his 5th and 6th Amendment 
rights to a "fair trial" and "due process 
of law" for the reason that resolution of 
the efficacy issue presented by some of 
the counts of the indictment involves mat-
ter beyond the intelligence and compre-
hension of a jury and the complaint thus 
presents a basis for the Injunctive relief 
sought. In this connection the memoran-
dum opinion filed by the district judge 
discerningly and aptly points out: 
"Plaintiff's constitutional rights to a 
fair trial will be protected by the 
court in the criminal trial. Juries 
are called every day to determine 
problems which are not within the 
scope of their prior knowledge and 
experience; In these cases, the ex-
pert witness is used to bridge the gap 
between the known and the un-
known. Expert witnesses in crimi-
nal trials are commonplace; the 
mere fact that the issues of a case 
may be complex or confusing to a 
jury does not mean that they must 
remain so—the prosecution must 
clarify the facts in order to pre-
sent its charges properly. 
The 
complexity of the subject matter of a 
lawsuit cannot be raised to a consti-
tutional issue in advance of its pres-
entation in that lawsuit" 
[2] Mere complexity of factual issues 
to be determined by the jury In a criminal 
case is not a constitutional basis for pre-
cluding the trial. 
We agree with the District Court that, 
contrary to the contentions of the plain-
tiff, the allegations of the complaint do 
not present one of those rare Instances 
where considerations like lose found in 
cases such as Dombrowski 
Pfister, 380 
U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22, 
and Ex parte Young, 209 U.S. 123. 28 S. 
Ct. 441, 52 L.Ed. 714, require that equity 
EFTA00191879

N. L. R. B. I O. 
cite as 351 
should intervene to restrain a pending 
criminal prosecution. 
conclude that 
the rationale of Douglas City of Jean-
nette, 319 U.S. 157, 63 S. . 877, 87 L.Ed. 
1324, is applicable here, and in the lan-
guage of Dombrowski (880 U.S. p. 485, 
86 S.Ct. D. 1120) there are "no special 
circumstances to warrant cutting short 
the normal adjudication of constitutional 
defenses in the course of a criminal 
prosecution." 
The judgment order appealed from is 
affirmed. 
Affirmed. 
NATIONAL LABOR RELATIONS 
BOARD, Petitioner, 
I 
C. L. FRANK, INC., Respondent. 
No. 15054. 
United States Court of Appeals 
Seventh Circuit 
Sept. 27, 1965. 
Proceedings on petition for enforce-
ment of an order of the National Labor 
Relations Board. The Court of Appeals, 
Castle, Circuit Judge, held that employ-
er's general manager's request that em-
ployees caucus and inform him of result 
was reasonable method of verifying one 
employee's statement that employees had 
changed their minds about union repre-
sentation; and, in context, manager's 
statement to assembled employees with 
regard to scheduled increase in wages 
and his designation of supervisor de-
sired by employees were, if technical vio-
lations, so do minimis in nature as to 
afford no reasonable basis for board's 
conclusion that they resulted in dissipa-
tion of union's majority. 
Order accordingly. 
1. Chauffeurs, Teamsters and Helpers Local 
Union 215. s/w International Brother. 
L. FRANK, INO. 
35 
KIM 35 (1965) 
Labor Relations 4=389 
Employer's general manager's re-
quest that employees caucus and inform 
him of result was reasonable method 
of verifying one employee's statement. 
that employees had changed their minds 
about union representation; and, in con-
text, manager's statement to assembled 
employees with regard to scheduled in-
crease in wages and his designation of 
supervisor desired by employees were, if 
technical violations, so de minimis in na-
ture as to afford no reasonable basis for 
board's conclusion that they resulted in 
dissipation of union's majority. 
Na-
tional Labor Relations Act, § 8(a) (1, 6) 
as amended 29 U.S.C.A. § 158(a) (1, 5). 
Marcel 
Mallet-Prevost, Asst. Gen. 
Counsel, Cary Green, Atty., N. L. R. B., 
Arnold Ordman, Gen. Counsel, Dominick 
L. Manoli, Associate Gen. Counsel, Leo 
N. McGuire, Atty., N. L. R. B., Wash-
ington, D. C., for petitioner. 
D. Bailey Merrill, William E. Statham, 
Evansville, Ind., for respondent C. L. 
Frank, Inc., Merrill, Schroeder & John-
son, McCray, Clark, Statham & MeCray, 
Evansville, Ind., of counsel. 
Before SCHNACKENBERG, CASTLE 
and KILEY, Circuit Judges. 
CASTLE, Circuit Judge. 
This case is before the Court upon the 
petition of the National Labor Relations 
Board for enforcement of the Board's 
order issued against C. L. Frank, Inc., 
respondent. The order is based on the 
Board's findings and conclusions that the 
Company violated Section 8(a) (6) and 
(1) of the National Labor Relations Act 
by refusal to bargain with the Union 
and that such refusal was not based on 
any good faith doubt that the Union. 
represented a majority of the employees: 
involved; and that the Company vio-
lated Section 8(a) (1) of the Act by 
directing employees to conduct a poll with
to the authorization of the Union. 
hood of Teamsters. Chauffeurs. Wore. 
housemen and Helpers of America. 
EFTA00191880

occasion it split up a team working on 
one job to send one member of the team 
to another job, a practice as to which 
there is no evidence whatever in the case 
at bar. Moreover, in the latter case it 
was found that in the event extra work 
turned up in the course of a job the ap-
plicator was not allowed to contract to 
do it for the householder on his own ac• 
count, as in the case at bar, but was re-
quired to ask the taxpayer-plaintiff for 
instructions as to how to proceed. These 
facts, and others we might mention, dif-
ferentiate the Security Roofing case from 
the one now before us. 
The case at bar is consistent with the 
Metropolitan Roofing, Jagolinzer and 
American Homes cases cited above and 
not inconsistent with Security Roofing. 
A judgment will be entered affirming 
the judgment of the District Court. 
Luther F. GRANT and Sirrka I Grant, 
PetitionersAppellees. 
UNITED STATES of America, 
Defendant.Appellant. 
No. 344, Docket 26183. 
United States Court of Appeals 
Second Circuit. 
Argued May 12. 1960. 
Decided July 28, 1960. 
Appeal by United States from order 
of the District Court for the Northern 
District of New York, James T. Foley, 
J., 186 F.Supp. 418, refusing to dissolve 
order staying United States attorney 
and all other agents and representatives 
of the United States from submitting 
evidence relating to taxpayers to a grand 
jury pending determination of applica-
GRANT I. UNITED STATES 
165 
Cite as 2n EU 165 (190) 
tion for return of books and records. 
The Court of Appeals, Friendly, Circuit 
Judge. held that where judge signed an 
ex parte order requiring United States 
attorney to show cause why taxpayer 
should not be entitled to return of rec-
ords or papers voluntarily turned over to 
agents of Internal Revenue Service and 
staying United States attorney and all 
other agents and representatives from 
submitting any evidence or information 
to grand jury pending determination of 
application for order to suppress, and 
subsequently court signed order, second 
order was not final and was not appeal-
able as an interlocutory order refusing to 
dissolve or modify injunction. 
Appeal dismissed for want of appel-
late jurisdiction. 
Moore, Circuit Judge, dissented. 
1. Courts Cr)403(3.11) 
In a civil action a restraining order 
qua restraining order is not appealable, 
whereas a preliminary injunction is. 26 
U.S.C.A. (I.R.C.1939) ¢ 6531. 
2. Courts C=403(3.11) 
label put on order by trial court is 
not decisive whether order constitutes a 
restraining order or preliminary injunc-
tion within rule that restraining order 
qua restraining order is not appealable 
whereas a preliminary injunction is, but 
rather the courts look to such factors as 
duration of order, whether it was issued 
after notice and hearing, and type of 
showing made in obtaining order. 
3. Courts C=405(12-1, 12.12) 
Where court signed ex parte order 
requiring United States attorney to show 
cause why records taxpayer had made 
available to agents of internal revenue 
service should not be suppressed and 
staying United States attorney and all 
other agents and representatives from 
submitting any evidence or information 
to grand jury pending determination of 
application, 
and 
subsequently 
court 
signed order refusing to dissolve stay 
and reserving decision as to vacation 
of original order to show cause until 
EFTA00191881

166 
282 FEDERAL REPORTER. 2d SERIES 
hearing, second order was not final and 
was not appealable as an interlocutory 
order refusing to dissolve or modify in-
junctions. 28 U.S.C.A. §§ 1291, 1292(a) 
(1): Fed.Rules Civ.Proc. rule 65(b). 28 
U.S.C..'. 
4. Injunction C=t105(1) 
District judges do not have un-
limited discretion to stay government or 
its agents from presenting evidence to 
grand jury pending a hearing on motion 
to suppress evidence and evidentiary 
hearing should not be set as a matter of 
course but only when petition alleges 
facts which if proved would require 
grant of relief. Fed.Rules Crim.Proc. 
rule 41(e), 18 U.S.C.A. 
S. Searches and Seizures C•7(28) 
Taxpayers do not make a showing 
of violation of constitutional guarantees 
by alleging only that they turned over 
their books and records voluntarily to 
Treasury agents for examination and 
such books and records were found to 
contain evidence leading government to 
assert criminal liability. 
6. Crintinal Law' <>394.6(si 
In those cases where an evidentiary 
hearing is required on application for 
order to suppress evidence. court should 
proceed in an expeilitous manner con-
sonant with summary character of rem-
edy. Fed.Rules Crim.Proc. rule 41(e). 
18 U.S.C.A. 
7. Injunction C=105(1) 
Possible expiration of a period of 
limitationiis highly relevant to the exer-
cise of court's discretion in staying gov-
ernment or its agents from presenting 
evidence to grand jury pending hearing 
on motion to supress such evidence. 
Fed.Rules Crim.Proc. rule 41(e), 18 U.S. 
C.A. 
S. Courts C/s404 
Abuses of discretion by trial court 
in ordering a hearing on motion to sup-
press evidence or in the scope or dura-
tion of a stay pending such hearing can 
be corrected by Courts of Appeals 
through issuance of mandamus. 
Fed. 
Rules Crim.Proc. rule 41(e), 18 U.S.C.A. 
Kenneth P. Ray, Asst. U. S. Atty., 
Syracuse. N. Y. (Theodore F. Bowes. 
U. S. Atty., Northern Dist. of New York, 
Syracuse, New York, on the brief), for 
appellant. 
Joseph W. Burns, New York City 
(John P. Cuddahy and Austin, Burns. 
Appell & Smith, New York City. and 
George Bond, Jr., N. Earle Evans, Jr. 
and Bond. Sehoeneck & King, Syracuse. 
New York, on the brief), for appellees. 
Before 
CLARK. 
MOORE 
a n d 
FRIENDLY, Circuit Judges. 
FRIENDLY, Circuit Judge. 
!
Luther 
F. 
Grant 
and 
his 
wife 
Sinks
Grant are physicians practicing in 
berty, New York. Luther applied on 
their joint behalf to the District Court 
for the Northern District of New York, 
pursuant to Fed.R.Crim.Proc. 41(e), 18 
U.S.C., for an order suppressing as evi-
dence records and papers that he had 
made available to agents of the internal 
Revenue Service. He alleged that the 
records had been obtained in violation of 
the Fourth and Fifth Amendments and 
that the United States attorney was 
about to present to a grand jury infor-
mation relating to petitioners' tax lia-
bility derived from them. 
Upon this application, Judge Foley, 
sitting in Albany, signed an ex parte 
order dated February 26. 1960, requiring 
the United States attorney to show cause 
on the judge's next scheduled motion day 
at Albany. March 21, 1960. why petition-
ers should not be granted the relief 
sought. 
The order stayed the United 
States attorney and all other agents and 
representatives of the United States 
"from submitting any evidence or infor-
mation to a Grand Jury or from taking 
any other or further proceedings in rela-
tion to the above captioned petitioners 
pending the determination of this appli-
cation • • • ". At the same time 
the judge signed an order, also ex parte, 
granting petitioners leave under Fed.R. 
Civ.Proc. 26(a), 28 U.S.C., to serve no-
tice of the taking of depositions of four 
revenue agents prior to the expiration 
EFTA00191882

of 20 days after the commencement of 
the action on the ground "that their 
testimony is desired for use at the hear-
ing of petitioners' motion to suppress ille-
gal evidence ° * •, and that it is 
essential that their testimony be taken 
prior to such hearing." 
Pursuant to 
such leave petitioners served notice that 
the depositions would be taken on March 
8, 1960 and a subpoena commanding a 
special agent to bring copies of the man-
uals and instruction to revenue agents 
and special agents. "all documents, 
papers, books, records, memoranda, re-
ports, diaries and objects maintained or 
obtained" by two agents, and "copies or 
extracts of books and papers made by 
them as a result of examinations or in-
vestigations" relating to the tax affairs 
of the petitioners. 
When Judge Foley arrived in Syracuse 
on March 1, 1960, to commence a trial 
term, an assistant United States attor-
ney asked him to vacate the order of Feb-
ruary 2G. The judge declined to do this 
but signed an order, supported by affi-
davits of the United States attorney and 
two revenue agents, requiring the peti-
tioners to show cause on March 7 "why 
an order should not be made dissolving 
the injunction and vacating the order to 
show catve granted by this Court on the 
26th day of February 1960." Petitioners 
submitted answering affidavits on the 
return day. After considering the affi-
davits and hearing counsel. Judge Foley, 
on March 8, 1960, made a Memor•andum-
Decision and Order, 186 F.Supp. 418. re-
fusing to dissolve the stay (although 
modifying it to permit the institution 
of a complaint before a United States 
Commissioner under 6531 of the Inter-
nal Revenue Code of 1954, 26 U.S.C. § 
6531, to toll the statute of limitations) 
and reserving decision as to vacating 
the original order to show cause until 
the hearing. 
From this the United 
States appeals. 
We meet at the outset the question, not 
discussed by the parties, whether the or-
der is appealable. Manifestly the order 
was not final; hence it is not appealable 
GRANT' UNITED STATES 
167 
Coe a rto o :dm (two) 
under 28 U.S.C. § 1291. However, the 
order of February 26 contained language 
of restraint, and we must consider 
whether the order of March 8 is an inter-
locutory order "refusing to dissolve or 
modify injunctions" and therefore am 
pealable within 28 U.S.C. § 1292(a)(1). 
[1,21 If appealability were governed 
by 28 U.S.C. § 1292(a)(1), we would be 
required to determine whether the Feb-
ruary 26 order was a temporary restrain-
ing order or a preliminary injunction. 
For "In a civil action a restraining order 
qua restraining order is non-appealable," 
7 Moore, Federal Practice, ¶ 65.07, 
1649 (2d ed. 1955): 
Schainmann 
Brainard, 9 Cir., 1925, 8 F.2d 1!, whey 
as a preliminary injunction is. 
How-
ever, "the label put on the order by the 
trial court is not decisive; instead the 
courts look to such factors as the dura-
tion of the order, whether it was issued 
after notice and hearing, and the type 
of showing made in obtaining the order." 
3 Barron & Holtzoff, Federal Practice 
and Procedure, § 1440, at 509 (Wright 
ed. 1958). The authors aptly add, "Ap-
plication of these tests is not easy to 
fathom." 
Fed.R.Civ.Proc. 65(b) pro-
vides that any temporary restraining 
order granted without notice "shall ex-
pire 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 • * • " Sims v. 
Greene, 3 Cir.. 1947, 160 F.2d 512, held 
that an order originally issued on De-
cember 2, 1946. extended on December 20 
without objection 
January H o 1947. 
and thereafter co 
ed from time to 
time until Febru. 
3, during which 
time a long evidentiary hearing was held. 
had ceased to be a temporary restrain-
ing order and had become a preliminary 
injunction subject to appeal under what 
is now 28 U.S.C. § 1292(a)(1). On the 
other hand, Connell I Dulien Steel Prod-
ucts, Inc.. 5 Cir.. 1957, 240 F.2d 414, 415, 
certiorari denied, 1958, 356 U.S. 968, 78 
S.Ct. 1008. 2 L.Ed.2d 1074, held that an 
order labelled a "temporary restraining 
EFTA00191883

168 
282 FEDERAL REPORTER, 2d SERIES 
order" did not cease to be one because it 
restrained pending decision on a motion 
for a preliminary injunction which was 
scheduled to be heard 28 days thence, see 
71 Harv.L.Rev. 550 (1955). 
And the 
Third Circuit has decided similarly with 
respect to a stay that was to remain in 
effect until the application for the tem-
porary injunction was heard, when the 
appeal was taken prior to the expira-
tion of 20 dal. Pennsylvania Motor 
Truck Asen 
Port of Philadelphia 
Marine Terminal Asen, 1960, 276 F.2d 
931. Here the minimum period of re-
straint was 24 days, only four more than 
the 20 permitted by Rule 65(b). a period 
that might have been accepted by consent 
under the express terms of the rule or 
would undoubtedly have been shortened 
had the court been requested to do so: 
the order was issued without notice and 
hearing; and the judge had not made the 
preliminary determination of the rights 
of the parties required for issuance of a 
temporary injunction. 
On the other 
hand, as demonstrated by the order per-
mitting petitioners to take depositions, 
the hearing scheduled for March 21 was 
evidently intended to be the final hearing. 
so that the stay may be said to have 
performed the traditional office of an 
injunction pendente life, "to preserve the 
xtatus quo pending final determination 
of the action after a full hearing." 7 
Moore, Federal Practice, I; 65.04, at 1625 
(2d ed. 1955). 
The difficulty in resolving these con-
flicting considerations suggests that we 
may not be asking the right question and 
that we ought examine a more basic one, 
namely, whether 28 U.S.C. § 1292(a) (1) 
applies at all to preliminary stays in 
summary proceedings to suppress illegally 
obtained evidence. This in turn requires 
analysis of the nature of a motion to that 
end made before any criminal proceeding 
is pending. 
Fed.R.Crim.Proc. 41(e) provides that 
"A person aggrieved by an unlawful 
search and seizure may move the district 
court for the district in which the prop-
erty was seized for the return of the 
property and to suppress for use as evi-
dence anything so obtained" on various 
grounds therein specified. It directs that 
"The judge shall receive evidence on any 
issue of fact necessary to the decision of 
the motion." The rule embodies a prac-
tice which long antedated it but whose 
jurisdictional character, at least in those 
cases where the motion precedes the crim-
inal proceeding to which the evidence 
relates, has been little discussed. 
We 
have said that such a motion "was in 
effect a complaint initiating a civil ac-
tion," Lapides v. United States, 2 Cir.. 
1954, 215 F.2d 253, 254: Russo v. United 
States, 2 Cir.. 241 F.2d 285, 287, certio-
rari denied, 1957. 355 U.S. 816. 78 S.Ct. 
18,2 L.Ed.2d 33, and so it is in the sense 
with which the Court was there mainly 
concerned. namely, its independence front 
the later criminal proceeding and the con-
sequent appealability of a final order 
therein under 28 U.S.C. § 1291. How-
ever, the jurisdictional grants in 28 
U.S.C. §§ 1331-1358 will be searched in 
vain for any rubric under which such a 
motion falls, in the absence of any alle-
gation of jurisdictional amount that 
would bring it under § 1331. see ten-
tracchio v. Garrity, 1 Cir., 1952. 198 F.2d 
382, 385, certiorari denied, 1952, 344 
U.S. 866. 73 S.Ct. 108, 97 L.Ed. 672. 
The classical exposition of the nature of 
such a motion is Judi Hough's state-
ment in United States 
Maresca, D.C. 
S.D.N.Y.1920, 266 F. 713. 717: 
"Whenever an officer of the court 
has in his possession or under his 
control books or papers, or (by parity 
of reasoning) any other articles in 
which the court has official interest, 
and of which any person (whether 
party to a pending litigation or not) 
has been unlawfully deprived, that 
person may petition the court for 
restitution. This I take to be an ele-
mentary principle, depending upon 
the inherent disciplinary power of 
any court of record. 
"Attorneys are officers of the 
court, and the United States attorney 
does not by taking office escape from 
EFTA00191884

GRANT I UN 
cite as 941F 
this species of professional disci-
pline. Thus power to entertain this 
motion depends on the fact that the 
party proceeded against is an attor-
ney, not that he is an official known 
as the United States attorney. It 
is further true that the right to move 
does not at all depend on the exist-
ence of this indictment; it might be 
made, were no prosecution pending." 
See also Co-Bart Importing Co. v. United 
States, 1931, 282 U.S. 344, 355. 61 S.Ct. 
153.75 L Ed. 374 ; Foley v. United States, 
5 Cir., 64 F.2d 1, 3, certiorari denied, 
1933. 289 U.S. 762, 53 S.Ct. 796, 77 L.Ed. 
1505. 
When motions under Rule 41(e) or the 
practice preceding it are independent of 
a criminal proceeding, the courts enter-
tain appeals from final orde 
denying 
the return of papers, Perlman 
United 
States, 1918, 247 U.S. 7, 38 
Ct. 417, 
62 L.Ed. 950; Essgee Co. 
United 
States, 1923, 262 U.S. 151, 43 
Ct. 514. 
67 L.Ed. 917; Co-Bart Co. 
United 
States, s ra, or granting sue 
return, 
Burdeau 
McDowell, 1921, 256 U.S. 465, 
i
41 S.Ct, 
4, 65 LEd. 1048. In contrast, 
when the motion is made aft 
indict-
ment,
States, 1929, 278 U.S. 221, 49 .Ct. 11 
1
neither its denial, Cogen 
United
73 L.Ed. 275, nor its grant, Carroll 
United States, 1e".7, 354 U.S. 397, i 
S.Ct. 1332, 1 L.E'!.2d 1442, is appealable. 
We have found La case sustaining appel-
late jurisdiction from any order in such 
a proceeding save a final one. 
We do not think an order, made in the 
exercise of "the inherent disciplinary 
power" of the court, directing one of its 
own officers to refrain from using books 
I. The came for opplienhilliy le Hint the 
action is "of a civil nature." Fol.R.Civ. 
Proc. 1, sines "Whether an action is civil 
or criminal by nature is determined by 
the sanctions nought to be imporied," 7 
Moore, Federal Practice 1 81.02. at 44. 
(2.3 ed. MI); see United States 
Stangland, 7 Cir.. 1937, 242 Sid 84 , 
8-81, and does not come within any
the exclusion* of Rule 81. In Russo 
United States, supra, 241 F.2d at pages 
287-288. we held Rule 26(a) applka. 
281 F.20—Ilii 
ITED STATES 
169 
15 16.5 11060) 
and papers claimed to have been unlaw-
fully taken until the court can determine 
his right to use them, is an order "grant-
ing, continuing, modifying, refusing or 
dissolving injunctions, or refusing to dis-
solve or modify injunctions" within 28 
U.S.C. § 1292(a)(1), even if the stay 
runs beyond the 20-day period permitted 
for temporary restraining orders by 
Fed.R.Civ.Proc. 65(b) and we should as-
sume that the Rule is fully applicable.' 
Section 1292(a)(1) stems from § 7 of 
the Evans Act, c. 517, 26 Stat. 828. 
providing, by way of exception to the re-
quirement of finality, "That where, upon 
a hearing in equity in a district court. 
or in an existing circuit court, an injunc-
tion shall be granted or continued by an 
interlocutory order or decree, in a cause 
in which an appeal from a final decree 
may be taken under the provisions of 
this act to the circuit court of appeals. 
an appeal may be taken from such inter-
locutory order or decree granting or con-
tinuing such injunction to the circuit 
court of appeals"; orders denying such 
injunctions were first added in 1895, c. 
96, 28 Stat. 666. The section as it ap-
peared in the Judicial Code of 1911, § 
129, 36 Stat. 1134. continued to be pref-
aced by the words "Where upon n hear-
ing in equity in a district court." and 
the omission of the words "in equity" in 
the Act of February 13, 1925. 43 Stat. 
937, "was not intended to rernie that 
limitation." Schoenatmsgrubcr 
118M-
burg American Line, 1935, 294 U.S. 454, 
457, fn. 3, 55 S.Ct. 475, 477, 79 L. ' 
1
989; see Baltimore Contractors, Inc.
Bodinger, 1955, 348 U.S. 176, 180, fn.
75 S.Ct. 249, 99 L.Ed. 233. Whatever 
might be the case when a person seeking 
bie in a proceeding Mot the present. 
However, since the Federal Ruin of 
Civil Procedure were "primarily designed 
for plenary litigation," 7 Moore, Federal 
Pi-settee 1 61.06, at 4442 (2d ed. 1955). It 
don not nev-essarily follow that they 
must be literally applied to proceedings 
under Fed.R.Crim.Proc. 41(e) which are 
summary in character, even when these 
are pre.indletment. Cf. Goodyear Tire & 
Rubber Co. v. N.L.R.B., U Cir.. 1011, 122 
F.2d 450. 451, 136 A.L.R. 8S3. 
EFTA00191885

170 
282 FEDERAL REPORTER, 2d SERIES 
the return of property alleged to have 
been illegally seized proceeds by a ple-
nary action under an appropria 
juris-
dictional statute, see Goodman 
Lan, 
i 
8 Cir., 1931, 48 F.2d 32; cf. Eastus 
Bradshaw, 5 Cir., 94 F.2d 788, certiorari 
denied, 1938, 304 U.S. 576, 58 S.Ct. 1045, 
82 L.Ed. 1539, such language is hardly 
apt to describe a preliminary step in a 
special proceeding where, in the course 
of exercising its "disciplinary powers" 
"summarily to determine" what one 
its own officers should do, Go-Bart Co. i 
United States, supra, 282 U.S. at page 
355, 51 S.Ct. at page 157 the court in-
structs him, ex parte, not to take action 
pending the determination that might 
impair the court's ability to grant full 
relief. 
Such a proceeding normally 
would not have the three stages—tem-
porary restraining order, preliminary 
injunction, and final decree—characteris-
tic of "a hearing in equity": the first 
evidentiary hearing would usually be the 
last and the proceeding would generally 
be determined before an appeal from an 
interlocutory order could be heard. 
The Baltimore Contractors case itself 
teaches that not every request for an 
order containing words of restraint is 
one for an injunction iithin ¢ 1292(a) 
(1). So does Fleischer 
Phillips, 2 Cir., 
264 F.2d 516, 516, certiorari denied. 
1959, 359 U.S. 1002. 79 S.Ct. 1139, 3 
L.Ed.2d 1030, where we said, also deal-
ing with officers of the court, that "the 
prayers for injunctive relief add nothing 
to the orders denying the motions and 
render neither of them automatically ap-
pealable under 28 Ulf. . § 1292(a)(1)." 
And United States 
Rosenwasser, 9 
Cir., 1944, 145 F.2d 1015, 156 A.L.R. 
1200, held that an order suppressing evi-
dence and restraining the United States 
from using copies of the seized records 
or information derived therefrom in any 
proceeding of any kind, which was not 
appealable as final because it was sought 
only after the information had been filed. 
could not be appealed as an interlocutory 
order granting an injunction although 
literally it assuredly was. 
[3-81 Our holding that the order 
here sought to be reviewed is not appeal-
able does not mean that district judges 
have unlimited discretion to stay the 
government or its agents from present-
ing evidence to a grand jury pending a 
hearing on a motion to suppress. Fed.R. 
Crim.Proc. 41(e) requires that evidence 
be taken on "any issue of fact necessary 
to the decision of the motion." It follows 
that evidentiary hearings should not be 
set as a matter of course, but only when 
the petition alleges facts which if proved 
would require the grant of relief. We 
find it somewhat hard to see how the pe-
tition here met this test, since the con-
stitutional guarantees are not violated 
when taxpayers' books and records, vol-
untarily turned over to Treasury agents 
for examination, are found to contain 
it
evidence leading the governm t to as-
sert criminal liability, Russo 
United 
States, supra; United States I 
detail'. 
2 Cir.. 265 F.2d 408, certiorari denied 
l i
1959, 360 U.S. 918. 79 
Ct. 1436.3 L.Ed. 
2d 1534; Centracchio 
Garrity, supra; 
the fact that one of t e agents was a 
special agent (whose presence, petition-
ers allege, shows an intent to develop 
i
facts leading to criminal pros ution) 
has been held irrelevant, Turner 
Unit-
ed States, 4 Cir., 222 F.2d 926, 9 0, cer-
tiorari denied 1955, 350 U.S. 831, 76 
S.Ct. 65, 100 L.Ed. 742; and the only 
affirmative misrepresentation alleged as 
to the nature of the investigation post-
dated the voluntary delivery of the rec-
ords. In those cases where an eviden-
tiary hearing is required, the court 
should proceed in an expeditious manner 
consonant with the summary character 
of the remedy and with a recognition 
that "It is no less important to safeguard 
against undue interruption the inquiry 
instituted by a grand jury than to pro-
tect from delay the progress of the trial 
after an i 
lament has been found." 
Cobbledick 
United States, 1940, 309 
U.S. 323, 32 , 60 S.Ct. 540, 542, 84 L.Ed. 
783. The possible expiration of a peri-
od of limitations is, of course, highly 
relevant to the exercise of the court's 
discretion. Abuses of discretion in or-
EFTA00191886