Denton v. City of Carrollton, Georgia

• Decision Date: 20 September 1956
• Docket Number: No. 15841.,15841.
• Parties: H. W. DENTON and International Union of Electrical, Radio and Machine Workers, CIO, v. CITY OF CARROLLTON, GEORGIA, et al.
• Court: U.S. Court of Appeals — Fifth Circuit

235 F.2d 481 (1956)

H. W. DENTON and International Union of Electrical, Radio and Machine Workers, CIO, v. CITY OF CARROLLTON, GEORGIA, et al.

No. 15841.

United States Court of Appeals Fifth Circuit.

July 20, 1956.

Rehearing Denied September 20, 1956.

Bert Diamond, Washington, D. C., J. R. Goldthwaite, Jr., Atlanta, Ga., Benjamin C. Sigal, Washington, D. C., Adair & Goldthwaite, Atlanta, Ga., for appellants.

Shirley C. Boykin, Carrollton, Ga., W. Glen Harlan, Charles A. Moye, Jr., Atlanta, Ga., H. Lamar Knight, Carrollton, Ga., for appellees.

Before HUTCHESON, Chief Judge, and CAMERON and BROWN, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

International Union of Electrical, Radio and Machine Workers, CIO, and Denton, a Georgia citizen, one of its employed labor organizers, sought declaratory and injunctive relief against the enforcement of an Ordinance¹ of the City of Carrollton, Georgia, requiring that any person, firm, or corporation engaging in the profession, business enterprise or occupation of labor union agent, promoter, or organizer apply for and obtain a license for which the license fee was $1,000.00 plus $100.00 for each day the activity was carried on. Conviction for failure to comply with the Ordinance subjected a violator to a fine not exceeding $100.00 or imprisonment not exceeding sixty days or both.

The plaintiffs claimed, and the Court found, that at least some of the employees of two manufacturing concerns in Carrollton engaged in interstate commerce had sought assistance in organizing the employees of these plants as members of the IUE who would then act as Collective Bargaining Agent for them. To do this effectively required that an organizer (Denton) "talk to, contact, assemble and meet with" these employees within the city limits of Carrollton and which would be, "activities covered by the Ordinance." Accepting, apparently, the plaintiffs' further proof that on inquiry by Denton whether this Ordinance would be enforced if he undertook to do this organizational work, the city officials stated that all Ordinances would be enforced, the Court held further that there would be, "a probable institution of criminal proceedings against * * * Denton, if * * * he should * * * proceed with organizational efforts without obtaining a license * *."

In addition to the attack that the Ordinance was an unconstitutional deprivation of the right of free speech, public assembly, and dissemination of lawful information, Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430; cf. Grosjean v. American Press Co., 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660; Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954, 83 L. Ed. 1423; Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949; Largent v. State of Texas, 318 U.S. 418, 63 S.Ct. 667, 87 L.Ed. 873; Martin v. City of Struthers, Ohio, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313; and an unwarranted discrimination against labor unions as a class and field of local regulation in violation of the due process and equal protection provisions of the Constitution, e.g., Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131; cf. Hale v. Bimco Trading Co., 306 U.S. 375, 59 S.Ct. 526, 83 L.Ed. 771; the Ordinance was primarily assailed as an unconstitutional interference with the operation of the Labor Management Relations Act, 29 U.S.C.A. § 141 et seq. carrying forward the policy of the predecessor National Labor Relations Act; see Amalgamated Utility Workers v. Consolidated Edison Co., 309 U.S. 261, 267, 60 S.Ct. 561, 84 L.Ed. 738; Amalgamated Ass'n, etc. v. Wisconsin Employment Relations Board, 340 U.S. 383, 398, 71 S.Ct. 359, 95 L.Ed. 364; Garner v. Teamsters, etc., 346 U.S. 485, 490, 74 S.Ct. 161, 98 L.Ed. 228.

In elaboration of this point, they asserted that the operation of the Ordinance brought it within each of the three classes of forbidden local regulations delineated in Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 75 S.Ct. 480, 485, 99 L.Ed. 546: First, it prohibits the exercise of the right of "`full freedom' of workers in the selection of bargaining representatives of their own choice," Hill v. State of Florida, 325 U.S. 538, 65 S.Ct. 1373, 1374, 89 L.Ed. 1782; International Union of United Automobile, Aircraft and Agricultural Implement Workers of America v. O'Brien, 339 U. S. 454, 70 S.Ct. 781, 94 L.Ed. 978; Amalgamated Ass'n, etc. v. Wisconsin Employment Relations Board, supra; Garner v. Teamsters, etc., supra, since employees, while presumably free to choose representatives under Section 7 of the Act must confine their choices to agents approved and licensed by the local City Government; Second, it tends to regulate, by establishing its own standards, conduct which has been prohibited as an "unfair labor practice" under the Act, Plankinton Packing Co. v. Wisconsin Employment Relations Board, 338 U. S. 953, 70 S.Ct. 491, 94 L.Ed. 588; Building Trades Council v. Kinard Construction Co., 346 U.S. 933, 74 S.Ct. 373, 98 L.Ed. 423; Garner v. Teamsters, etc., supra; Capital Service v. N. L. R. B., 347 U.S. 501, 74 S.Ct. 699, 98 L.Ed. 887; e.g., the duty to bargain in good faith with employees' representative would, or might, depend on whether the "person * * * who engaged in * * * the profession, business enterprise or occupation * * * of a * * * union agent" was properly licensed; cf. 29 U.S. C.A. §§ 158(b), 159(f-h), 160(c) and United Mine Workers of America v. Arkansas Oak Flooring Co., 351 U.S. 62, 76 S.Ct. 559; Third, it infringes upon the machinery for dealing with certification which carries "implications of exclusiveness", LaCrosse Telephone Corp. v. Wisconsin Employment Relations Board, 336 U.S. 18, 69 S.Ct. 379, 93 L. Ed. 463; Bethlehem Steel v. New York State Labor Relations Board, 330 U.S. 767, 67 S.Ct. 1026, 91 L.Ed. 1234, since the payment of an exorbitant fee is a prerequisite to soliciting or procuring a sufficient "showing of interest" of at least 30% of the employees in the unit claimed, 29 U.S.C.A. § 159(c), NLRB Statement of Procedure, Sections 101.16-101.17.

But the District Court never got that far. To be sure, he found jurisdiction, 28 U.S.C.A. § 1343, and rightly so since, on the merits, although he did not find it necessary to decide this ground, there was a serious and substantial question, 28 U.S.C.A. § 1337,² whether the Ordinance collided with pre-emptive Congressional legislation such as the National Labor Relations Act, 29 U. S.C.A. § 141 et seq., A.F.L. v. Watson, 327 U.S. 582, 66 S.Ct. 761, 90 L.Ed. 873.³ He declined to exercise the jurisdiction he possessed for a twofold reason. First, because to do so would be to stay proceedings in a state court contrary to the Statute.⁴ Second, and this was the principal basis for his action, the case was wanting in equity for lack of a showing of danger of irreparable injury, both great and immediate, under the general principles restated⁵ in Douglas v. City of Jeannette, 319 U.S. 157, 163, 164, 63 S.Ct. 877, 881, 87 L.Ed. 1324.

But this wholesome rule envisages itself the necessity, under circumstances of genuine and irretrievable damage, for affording equitable relief even though the result is to forbid criminal prosecution or other legal proceedings. We start here with an exaction euphemistically called a "license tax," but which in its cumulative effect is exorbitant and punitive. Its effect, and therefore its purpose, seems not to regulate, but to prohibit. The payment of a license tax of $1,000.00 while large, would not alone, even if legality were doubtful, present a case for equitable relief. But to this must be added the further sum of $100.00 for each day a person acts not only as a "labor union organizer," but as "union agent" as well, which could presumably cover activities long after the organization drive and while the union, victorious in the membership campaign, undertakes what may be a protracted process of bargaining. For one person for one year of working days, the total would approach $32,300.00.

To require the payment of any such sum as a condition to testing the validity of the exaction, if it does not of itself make the tax illegal for that reason, at least presents such a heavy burden that to decline equitable relief would be to deny judicial review altogether, Ex parte Young, 209 U.S. 123, 144, 28 S.Ct. 441, 52 L.Ed. 714, 722; Missouri Pacific Ry. Co. v. Tucker, 230 U.S. 340, 33 S.Ct. 961, 57 L.Ed. 1507; Terrace v. Thompson, 263 U.S. 197, 44 S.Ct. 15, 68 L.Ed. 255; Beal v. Missouri Pacific R. Co., 312 U.S. 45, 61 S.Ct. 418, 85 L.Ed. 577. Indeed, in such a setting, where the so-called tax has clearly punitive qualities, it may, if invalid, be enjoined, Regal Drug Co. v. Wardell, 260 U.S. 386, 43 S.Ct. 152, 67 L.Ed. 318; United States v. LaFranca, 282 U.S. 568, 51 S.Ct. 278, 75 L.Ed. 551; Raymond v. Chicago Union Traction Co., 207 U.S. 20, 28 S.Ct. 7, 52 L.Ed. 78; Union Pacific R. Co. v. Board of Commissioners of Weld County, 247 U.S. 282, 38 S.Ct. 510, 62 L.Ed. 1110; Lee v. Bickell, 292 U.S. 415, 54 S.Ct. 727, 78 L.Ed. 1337; and see Allen v. Regents of University of Georgia, 304 U.S. 439, 58 S.Ct. 980, 82 L.Ed. 1448; Miller v. Standard Nut Margarine Co., 284 U.S. 498, 52 S.Ct. 260, 76 L.Ed. 422; Georgia Railroad & Banking Co. v. Redwine, 342 U.S. 299, 72 S.Ct. 321, 96 L.Ed. 335; Toomer v. Witsell, 334 U.S. 385, 68 S.Ct. 1156, 92 L.Ed. 1460.

The large amount of money required to pre-pay for a test becomes an aggravated factor if actual doubt exists concerning the recoverability of such sums in the event the basic law is ultimately declared invalid. That doubt both eliminates the statutory⁶ prohibition against enjoining state tax collections and is a basis for apprehension of genuine and irretrievable loss. Union Pacific R. Co. v. Board of Com'rs of Weld County, supra; Raymond v. Chicago Union Traction Co., supra; Georgia Railroad & Banking Co. v. Redwine, supra; Fox v. Standard Oil Co., 294 U.S. 87, 55 S.Ct. 333, 79 L.Ed. 780; Graves v. Texas Co., ...