White v. Federal Radio Commission

• Decision Date: 16 October 1928
• Docket Number: 8575.,No. 8566,8566
• Parties: WHITE v. FEDERAL RADIO COMMISSION et al. EMIL DENEMARK, Inc., v. SAME.
• Court: U.S. District Court — Northern District of Illinois

29 F.2d 113 (1928)

WHITE v. FEDERAL RADIO COMMISSION et al.

EMIL DENEMARK, Inc., v. SAME.

Nos. 8566, 8575.

District Court, N. D. Illinois, E. D.

October 16, 1928.

Urion, Drucker, Reichmann & Boutell, of Chicago, Ill., for plaintiffs.

George E. Q. Johnson, U. S. Atty., of Chicago, Ill., for defendants.

WILKERSON, District Judge.

These are suits to enjoin the enforcement of an order of the Federal Radio Commission on the ground that the Radio Act of 1927 (47 USCA §§ 81-119) is unconstitutional and that the Radio Commission proceeded improperly thereunder. The plaintiff made a motion for a temporary injunction on the face of the bill. Defendants then moved to dismiss the bill for want of jurisdiction in equity.

Courts sometimes say that there is no jurisdiction in equity, when they mean only that equity ought not to give the relief asked. In a strict sense the court in this case has jurisdiction. It has power to grant an injunction, and, if one is granted, its decree, even though it may be erroneous, would not be void. The motion of the defendants to dismiss for want of jurisdiction in equity will be overruled.

It is no longer open to denial that the averments of the unconstitutionality of the statute, which are relied upon, if well founded, justify equitable relief under the bill. Kennington v. Palmer, 255 U. S. 100, 41 S. Ct. 303, 65 L. Ed. 528; Adams v. Tanner, 244 U. S. 590, 37 S. Ct. 662, 61 L. Ed. 1336, L. R. A. 1917F, 1163, Ann. Cas. 1917D, 973; Hammer v. Dagenhart, 247 U. S. 251, 38 S. Ct. 529, 62 L. Ed. 1101, 3 A. L. R. 649, Ann. Cas. 1918E, 724; Hamilton v. Kentucky Distilleries, 251 U. S. 146, 40 S. Ct. 106, 64 L. Ed. 194; Ruppert v. Caffey, 251 U. S. 264, 40 S. Ct. 141, 64 L. Ed. 260; Ft. Smith & Western R. R. Co. v. Mills, 253 U. S. 206, 40 S. Ct. 526, 64 L. Ed. 862.

A suit in equity to enjoin the United States attorney from instituting criminal proceedings under a statute of the United States is manifestly a suit against the United States. If property rights are invaded, and the statute in question is unconstitutional, it is void, is to be treated as non-existent, and so no defense to the United States attorney. When instituting criminal proceedings under it, he is to be regarded, not as representing the United States in his official capacity, but as acting individually. In his concurring opinion in Weed & Co. v. Lockwood (C. C. A.) 266 F. 785, 794, Circuit Judge Hough said:

"Whether `property rights are invaded' is a question of degree. Yet oftentimes the degree of invasion is a test of equitable jurisdiction. Thus there is usually no difference in material kind between a single act of nuisance and a continuing nuisance. So here (speaking of the Lever Act, 41 Stat. 297), for one making a sale a month might perhaps continue to exist in a business sense under this statute; he could find out whether he was a criminal before he was ruined. But a retail storekeeper, who cannot do a day's business without running the risk of perhaps a thousand indictments, is suffering a very real invasion."

The same rule is applicable where there has been an unconstitutional exercise of power under a constitutional statute, and property rights have been invaded. Philadelphia Co. v. Stimson, 223 U. S. 605, 32 S. Ct. 340, 56 L. Ed. 570.

As to the motion to dismiss for want of equity on the face of the bill, the rule which prevails in courts of equity, in disposing of motions to dismiss because the bill does not set up facts sufficient to constitute a cause of action, is to overrule the motion and let the case go to hearing, unless it is founded upon an absolutely clear proposition that, taking the allegations to be true, the bill must be dismissed at the hearing. Kansas v. Colorado, 185 U. S. 125, 144, 22 S. Ct. 552, 46 L. Ed. 838; U. S. v. Railway Employés' Department (D. C.) 286 F. 228, 230.

In resisting the application for a temporary injunction, the defendants have not rested their opposition upon the allegations of the bill. They have...