Dearborn Pub. Co. v. Fitzgerald

• Decision Date: 16 April 1921
• Docket Number: 621.
• Citation: 271 F. 479
• Parties: DEARBORN PUB. CO. v. FITZGERALD, Mayor, et al.
• Court: U.S. District Court — Northern District of Ohio

271 F. 479

DEARBORN PUB. CO. v. FITZGERALD, Mayor, et al.

No. 621.

United States District Court, N.D. Ohio, Eastern Division.

April 16, 1921

Squire Sanders & Dempsey, of Cleveland, Ohio (William Lucking, of Detroit, Mich., of counsel), for plaintiff.

William B. Woods, Director of Law, of Cleveland, Ohio, for defendants.

WESTENHAVER District Judge.

This cause has been heard and submitted upon plaintiff's motion for a preliminary injunction, and upon defendants' motion to dismiss the bill for lack of jurisdiction and want of equity. The motion for a preliminary injunction was heard upon affidavits. The facts essential to a decision of the questions involved are not in dispute, and both motions can be disposed of together.

Plaintiff publishes a weekly newspaper called the Dearborn Independent. On and prior to March 14, 1921, copies of this newspaper were sold by venders upon the streets of Cleveland in the same manner as are sold local and other daily and weekly newspapers. On this date, four persons thus employed were arrested by order of the defendant Frank Smith, chief of police, acting under the express direction of the other two defendants. They were, after their arrest, charged by warrant and are now held for trial upon a criminal charge of offering for sale a certain indecent and scandalous publication, to wit, the Dearborn Independent; the same being calculated to excite scandal and having a tendency to create breaches of the peace, in violation of section 1770, Rev. Ord. of the City of Cleveland. A copy of the issue of March 12, 1921, was attached to and made a part of the warrant, and is now exhibited with the bill. The article therein, upon which the warrant is based, is found on pages 8 and 9, and is entitled 'Jewish Rights Clash with American Rights. ' No trial has yet been had of these criminal charges.

Immediately thereafter, and upon application of plaintiff's representatives to defendants, they were notified by the latter that no further sales of the Dearborn Independent would be permitted upon the streets of Cleveland; that, if such sales were attempted at any time, the persons so attempting would be immediately arrested; that such sales would be regarded as unlawful and contrary to the ordinance above referred to, but that no objection to such sales would be made if the so-called anti-Semitic or anti-Jewish articles appearing therein were omitted. Its sale at news stands and in shops, however was not forbidden, and has not been interfered with. Upon this hearing the defendants do not deny these allegations. The affidavit of Mayor Fitzgerald, the only one filed on behalf of defendants, admits their substantial accuracy, and attempts only to justify such action on the ground that these articles would tend to create religious and racial dissensions, and have a tendency to create breaches of the peace. As a result, plaintiff's publication has been excluded from sale by news venders on the city streets, and its circulation reduced approximately three-fourths.

The article in the issue of March 12 has been examined. Earlier issues have not been exhibited or offered in evidence, but it may be assumed that they are of the same general type, and equally vicious or equally harmless, according to the personal views of the reader. An examination of the evidence convinces me that defendants' action was taken with the intent and purpose of preventing sales of the plaintiff's newspaper on the streets only because it contained these articles; that such action was not with a view to preventing the sale of indecent, obscene, or scandalous publications the sale of which is forbidden by section 1770; that such action was not directed towards preserving the public peace of the city, and was not in any wise necessary to prevent any breach of the peace. The necessary effect of such action is to censor in advance the contents of the newspaper, by preventing its sale in the same manner as all other newspapers are sold, so long as it contains articles of like character. The questions of law are whether this action is without valid legal support, and, if so, whether a court of equity has jurisdiction by injunction to prevent it.

Defendants' motion to dismiss raises several objections to the granting of relief, of which, however, it is necessary to consider separately only the objection that a court of equity cannot take jurisdiction, because so to do would be to enjoin the prosecution of a criminal action. This objection is without merit. Plaintiff disclaims any desire to enjoin the prosecution of the pending charges. If the only injury complained of was the further prosecution of those charges, plaintiff's remedy at law by a defense thereto might be regarded as adequate. Defendants' action, however, prevents other sales from time to time and from week to week. This is a continuing course of conduct, and, if not supported by a valid constitutional law, or is in excess of authority conferred on them by any valid law or ordinance, becomes a continuing and repeated wrong. In this situation a court of equity has from time immemorial granted relief upon two well established principles. One is the multiplicity of actions which would be necessary to redress a continuing and repeated wrong; and the other is the irreparable nature of the injury inflicted, in that the damage is not susceptible of accurate ascertainment at law.

This case is well within the numerous decisions sustaining the jurisdiction of a court of equity to grant relief upon either the one or the other of these principles, notwithstanding it may be necessary to enjoin pending or threatened criminal prosecutions under unconstitutional or invalid statutes or ordinances. In such cases the actions of federal, state, or municipal officials are regarded as being in excess of any lawful power or authority vested in them, and suits against them are not regarded as suits against a state, or to restrain the prosecution of suits in a state court. See Ex parte Young, 209 U.S. 155, 28 Sup.Ct. 441, 52 L.Ed. 714, 13 L.R.A. (N.S.) 932, 14 Ann.Cas. 764; Philadelphia Co. v. Stimson, 223 U.S. 605, 32 Sup.Ct. 340, 56 L.Ed. 570; Truax v. Raich, 239 U.S. 33, 36 Sup.Ct. 7, 60 L.Ed. 131, L.R.A. 1916D, 545, Ann. Cas. 1917B, 283; C.A. Weed & Co. v. Lockwood (2 C.C.A.) 266 F. 785; Star Co. v. Brush, 185 A.D. 261, 172 N.Y.Supp. 851.

The case last cited sustains the jurisdiction of a court of equity, and adjudges the actions of a city, precisely like that here complained of, to be illegal. Judge Manton's opinion in the Weed Case is clearly my understanding of the law applicable to suits in equity to enjoin federal, state, and city officials, when acting under invalid statutes or ordinances, or in excess of any lawful power vested in them. The judgment in this case was reversed by the United States Supreme Court only because it held the act of Congress, popularly known as the Lever Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Secs. 3115 1/8e-3115 1/8kk, 3115 1/81-3115 1/8r), to be constitutional; but the law of it was approved, so far as it relates to the powers of a court of equity. See opinion of Chief Justice White, filed February 28, 1921.

Arbuckle v. Blackburn (6 C.C.A.) 113 F. 616, 51 C.C.A. 122, 65 L.R.A. 864, much relied on by defendants, is authority only for the proposition that, if an indictment is found under a constitutional statute, a court of equity will not try the issue of the defendant's guilt or innocence as a condition upon which to grant equitable relief by injunction.

Upon the merits, plaintiff plainly is entitled to relief. Two grounds of relief are urged, with respect to which no opinion need be expressed. One is that its method of selling its publication by agents employed by it upon the city streets of Cleveland is interstate commerce, with which defendants have no right to interfere. Another is that section 1770, Rev. Ord. of the City of Cleveland, is invalid, because not within the legislative power delegated by statute to cities of Ohio at the time it was enacted, and that, being invalid when enacted for want of such power, it is not made valid by that provision of the Home Rule Charter of the city of Cleveland continuing in force all existing ordinances. A decision of these two contentions is not necessary to a decision of this case.

Section 1770, if valid and in force, does not authorize or justify defendants' conduct. The publication complained of cannot by any stretch of the imagination be classified as indecent obscene, or scandalous; but, if it were, the limit of the city's power would be to conduct a prosecution for the specific offense thus committed, and not the establishment of a censorship in...