Frankfurter wrote for the majority, arriving at a result precisely contrary to that which the majority of the Court had reached in the Sacher case, and holding that the trial judge should have assigned the contempt charge to another judge for disposition. Yet in his majority opinion in the Offutt case, Mr. Justice Frankfurter made no attempt to overrule, distinguish, or reconcile it, although a trenchant dissenting opinion in the Offutt case refers and points to the Sacher case. I am adverting to this circumstance as an indication that in recent years one member of the Supreme Court has attached no binding character to decisions of that tribunal rendered by a divided vote, if he himself were in the minority. The pertinency of this consideration to the case at bar is that there is an uncertainty as to what weight should be accorded to decisions of the Supreme Court reached by a divided vote. Are such decisions to be regarded as binding and controlling precedents? Does the principle of stare decisis, which is fundamental in our system of jurisprudence, apply to them? The Columbia Broadcasting System case and the Eccles case seem inconsistent with each other. Each was decided by a divided court and the majority opinion in the latter case does not even mention the earlier decision. The same is true of the Sacher and Offutt cases.
Counsel for the defendants rely on Public Service Commission v. Wycoff Co., 344 U.S. 237, 73 S. Ct. 236, 97 L. Ed. 291. That decision seems, however, to be distinguishable. There the plaintiff sought a declaratory judgment in a Federal court to the effect that the plaintiff's business constituted interstate commerce. His purpose was to use the adjudication as a defense in proceedings instituted in a State court by the Public Service Commission of the State to enjoin certain activities of the plaintiff. The Supreme Court held that the action should not be entertained, as its aim was to establish and exemption from regulations in order to hold it in readiness for future use. The result was reached on the further ground that since Federal-State relations were involved, the Federal courts should not in the first instance interfere with a determination to be made by State administrative bodies or judicial tribunals, but should withhold any declaration until after the State proceedings were finished.
The latest decision presenting a situation parallel to that confronted in the instant case was rendered in Federal Communications Commission v. American Broadcasting Co., Inc., 347 U.S. 284, 74 S. Ct. 593, which involved a suit by a radio broadcasting company to enjoin the Federal Communications Commission from enforcing certain provisions in its rulings relating to the broadcasting of so-called 'give away' programs. The question was whether these regulations correctly interpreted certain provisions of the Criminal Code, 18 U.S.C.A. § 1304. The action was brought after the promulgation of the rules but before the Commission took any steps or made any threats to enforce them. The Supreme Court passed on the question of substantive law and in a unanimous opinion held the regulations invalid. The preliminary question whether such an action might be maintained was, however, not discussed. An examination of the briefs indicates that no such objection was raised by Government counsel. This circumstance, no doubt, detracts from the weight of this case as an authority on the procedural issue. On the other hand, the question whether an action presents a justiciable controversy is one that the court may raise sua sponte in order that the judicial process may not be abused. Consequently the assumption of jurisdiction in the American Broadcasting Co. case may be construed as constituting at least some indication on the part of the Supreme Court that an action may be maintained under the circumstances similar to those in the case at bar. It is possible, indeed, that the point did not occur to the Court, since the matter was not brought to its attention by counsel. In any event, tacit and negative though it be, it is the latest expression of the Supreme Court on this point.
In the light of the uncertainties that have been discussed, the safe and sound practice for this court to follow is to revert to basic principles and to established landmarks in the law. The leading authority on the point under discussion is Ex parte Young, 209 U.S. 123, 163 et seq., 28 S. Ct. 441, 52 L. Ed. 714. This case involved actions brought by stockholders of certain railroad companies against the companies themselves and against the regulatory authorities of a State, to enjoin the enforcement of certain rates and tariffs prescribed by the State. One of the grounds for invoking the equity jurisdiction of the Court was that the penalties prescribed for violations of the orders were so drastic that no railroad company could afford to run the risk of disobeying them and then testing their validity in some suit that might be later brought against the company for their enforcement. The Supreme Court in an exhaustive and scholarly opinion held that an action in equity might be maintained.
As heretofore indicated this court recognizes and must face the fact that there is an uncertainty in the recent decisions on the question of the right to maintain such an action as the present suit. The court will resolve that doubt on the basis of what seems to be the correct principle and the dictates of substantial justice in favor of the plaintiff and feels that its conclusion is fully and amply supported by the leading case of Ex parte Young, supra. The court concludes, therefore, that this action may be maintained, that the complaint is sufficient and that, therefore, the motion to dismiss should be denied.
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