The opinion of the court was delivered by: RIPPEY
This action is brought by the Precision Castings Company, Inc., a corporation organized under the laws of the state of New York, having its principal office and place of business in the village of Fayetteville, Onondaga county, N.Y., and engaged in the business of manufacture and sale of die castings. The bill of complaint was filed with the clerk on January 2, 1936. The plaintiff seeks to restrain John P. Boland, individually and as regional director of the National Labor Relations Board for the Third Region, Daniel B. Shortal, individually and as attorney for the National Labor Relations Board for the Third Region, and J. Warren Madden, John M. Carmody, and Edwin S. Smith, individually and as members of and constituting the National Labor Relations Board, immediately from proceeding with a hearing under section 10(b) of the National Labor Relations Act, approved July 5, 1935 (29 U.S.C.A. § 160(b), and ultimately from any proceedings whatsoever under the act, on the board ground that the act as a whole is unconstitutional. The hearing (temporarily restrained) was originally set for January 6, 1936, at Syracuse, N.Y., before an examiner to be designated by the Board. The complaint upon which the hearing was to be had was dated December 20, 1935, was signed by John P. Boland as regional director for the Third region in behalf of the National Labor Relations Board, and was issued upon a charge, made by the Iron Molders Union of North America, Local 80, of Fayetteville, N.Y., that the plaintiff has engaged in, and is now engaging in, unlawful labor practices affecting commerce as set forth and defined in the said National Labor Relations Act (29 U.S.C.A. § 151 et seq.)
The bill of complaint charges, in substance, that the act is wholly unconstitutional upon the grounds that it violates the due process clause of the Fifth Amendment, the provisions of the Seventh Amendment as to trial by jury, the Fourth Amendment as to unreasonable search and seizure, the provisions of article 3, § 1, with respect to delegation of judicial power of the United States, the Ninth and Tenth Amendments, in that Congress has attempted to legislate with reference to powers expressly reserved to the states, article 1, § 8, of the Constitution, in that it legislates with reference to intrastate commerce and that the administrative features generally constitute an unwarranted invasion of the plaintiff's rights to freedom of contract and the conduct of its business. Plaintiff invokes the aid of the general equity powers of this court to prevent irreparable loss and damage which it alleges proceedings before the Board will entail and for recoupment of which it claims it has no adequate remedy at law.
Upon the filing of the bill of complaint and before the service of the subpoena herein, a temporary restraining order was issued enjoining all of the defendants individually and in their representative capacities and their deputies, clerks, and attorneys and all persons acting under their authority until further order of the court from proceeding further against the complainant "under and pursuant to the provisions of the National Labor Relations Act, or in any manner interfering with the defendant and the conduct of its business." A subpoena was issued by the clerk directed to all of the defendants both in their individual and representative capacities. The only defendants served were Boland and Shortal, who have their official headquarters at Buffalo, N.Y., and are residents of, and were found within, the Western District of New York. It appears that the defendants Madden, Carmody, and Smith are neither residents nor citizens of the Western District of New York, and have not been, and are not, within the said district. Neither has appeared in this action either individually or in his representative capacity, nor has the National Labor Relations Board appeared. Contemporaneously with the hearing on the motion for a temporary injunction, the defendants Boland and Shortal appeared and filed a return to the order to show cause by which the motion for temporary injunction was brought before the court and moved to quash the subpoena and to dismiss the bill on the ground that the court was without jurisdiction.
Upon the motions to quash and dismiss, Boland and Shortal initially assert that they are not proper parties to this suit and that there are no parties before the court against whom relief may be had. The National Labor Relations Board is created under section 3(a) of the act (29 U.S.C.A. § 153(a), wherein it is provided that the Board shall be composed of three members who shall be appointed by the President, by and with the advice and consent of the Senate. Pursuant to the authority therein created, Madden, Carmody, and Smith were duly appointed, and thereafter qualified, and are acting, as the members of the National Labor Relations Board. Section 5 of the act (29 U.S.C.A. § 155) provides that the principal office of the Board shall be in the District of Columbia, but that it may exercise any and all of its powers at any other place, and it may, either through its own members or by such agents or agencies as it may designate, prosecute any inquiry necessary to its functions in any part of the United States.
It is claimed that jurisdiction over Medden, Carmody, and Smith is obtained through delivery of copies of the subpoena and bill and order to show cause to Boland and Shortal, and that service upon them as agents for the Board constitutes full compliance with the requirements of rule 73 of the Equity Rules (28 U.S.C.A. following section 723) and 28 U.S.C.A. § 381, at least so far as the issuance of a temporary injunction is concerned, because they were created agents of the Board for all purposes of carrying out the provisions of the National Labor Relations Act both by the act itself and by the rules and regulations of the Board compiled thereunder. Section 4 of the act (29 U.S.C.A. § 154) provides that the Board may appoint such attorneys and regional directors and other employees as it may from time to time find necessary for the proper performance of its duties. Authority is conferred upon the Board to from time to time make, amend, or rescind such rules and regulations as may be necessary to carry out the provisions of the act. Pursuant to this authority, the National Labor Relations Board, on September 14, 1935, formulated "General Rules and Regulations (Series 1)," which fix the procedure of the Board under section 10 of the act (29 U.S.C.A. § 160) for the prevention of unfair labor practices. The defendant Boland has been duly designated as the regional director for the Third region and the defendant Shortal as the attorney for the Board. The regulations provide that a charge may be filed by any person or labor organization against an employer that he has engaged in or is engaging in some one or more unfair labor practices designated in the act (if such practices are in or affect interstate commerce) with the regional director for the region in which the alleged unfair practice has occurred or is occurring. Such a charge was filed with the defendant Boland against the complainant in the case at bar by the Iron Molders Union of North America, Local 80, of Fayetteville, N.Y. The regulations further provide (section 5) that, after the charge has been filed, if it appears to the regional director that a proceeding in respect thereto should be instituted, he (the regional director) shall issue and cause to be served upon the employer and upon the person making the charge a formal complaint in the name of the Board stating the charges and containing a notice of hearing before a trial examiner at a place and time therein fixed, not less than five days after the service thereof. Such a complaint against complainant in the case at bar was issued by the defendant Boland on December 20, 1935, and notice of hearing thereon was given to the complaint, as above indicated, for January 6, 1936. The regulations further provide that the employer, within five days after the service of the complaint or within such further period as the regional director may fix, shall have the right to file an answer thereto with the regional director. On December 30, 1935, such an answer was filed by plaintiff with Boland by which the alleged unfair labor practices were denied and every point needed for the protection of plaintiff's rights was raised. The regulations also provide that thereupon all further proceedings are to be had before the trial examiner designated by, and acting in behalf of, the Board. Article IV, sections 1 and 3, of the regulations provide that the regional directors and attorneys, respectively, are designated agents of the Board to perform all the duties and to prosecute any of the functions of the Board in accordance with sections 5, 9(a), 10(b), and 11(1) of the act, 29 U.S.C.A. §§ 155, 159(a), 160(b), 161(1).
Undoubtedly, service upon Boland, the regional director, and upon Shortal, the attorney for the Board, under the allegations in the complaint, brings Madden, Carmody, and Smith within the jurisdiction of the court for the purpose of restraint from the performance of an unlawful act. Franz v. Franz (C.C.A.) 15 F.2d 797; Veitia v. Fortuna Estates (C.C.A.) 240 F. 256; Marine Midland Trust Co. v. Eybro Corporation (C.C.A.) 58 F.2d 165; Ryan v. Amazon Petroleum Corporation (C.C.A.) 71 F.2d 1; Colorado v. Toll, 268 U.S. 228, 45 S. Ct. 505, 69 L. Ed. 927.
If any one of the defendants is acting beyond the limits of his authority under the National Labor Relations Act, and thereby inflicts, or threatens to inflict, great and irreparable injury to the plaintiff, and the plaintiff is without adequate remedy at law, or if he is proceeding, or pretending to proceed, officially under an unconstitutional act, equity may intervene to restrain him from continuance of his unlawful conduct. Philadelphia Company v. Stimson, 223 U.S. 605, 32 S. Ct. 340, 56 L. Ed. 570; Colorado v. Toll, supra; Railroad Retirement Board v. Alton R. Co., 295 U.S. 330, 55 S. Ct. 758, 79 L. Ed. 1468. The plaintiff does not allege, nor is it pretended or asserted here by complainant, that any one of the defendants is acting, or attempting to act, or threatening to act, outside of the authority conferred by the provisions of the National Labor Relations Act. The sole ground, therefore, on which this suit can be maintained or on which either a temporary or permanent injunction can issue is that the congressional authority under which they are performing, or threatening to perform, the acts alleged to form the basis of irreparable loss and injury to complainant, is wholly unconstitutional and void.
When a claim is made that a congressional enactment is unconstitutional, the courts uniformly entertain such contentions with skepticism and extreme caution, and should never invalidate it unless its unconstitutionality is so clear as to leave no room for rational doubt. In Commonwealth v. Smith, 4 Bin.(Pa.) 117, 123, it is said: "It must be remembered, however, that for weighty reasons, it has been assumed as a principle, in construing constitutions, by the Supreme Court of the United States, by this Court, and every other court of reputation in the United States, that an act of the legislature is not to be declared void, unless the violation of the constitution is so manifest as to leave no room for reasonable doubt."
In Dartmouth College v. Woodward, 4 Wheat. 518, at page 625, 4 L. Ed. 629, Chief Justice Marshall had occasion to state: "On more than one occasion, this court has expressed the cautions circumspection with which it approaches the consideration of such questions; and has declared, that in no doubtful case, would it pronounce a legislative act to be contrary to the constitution."
In Fletcher v. Peck, 6 Cranch, 87, 128, 3 L. Ed. 162, Chief Justice Marshall said: "It is not on slight implication and vague conjecture that the legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between the constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other."
In Ogden v. Saunders, 12 Wheat. 213, 270, 6 L. Ed. 606, it was said: "But if I could rest my opinion in favor of the constitutionality of the law on which the question arises, on no other ground than this doubt so felt and acknowledged, that alone would, in my estimation, be a satisfactory vindication of it. It is but a decent respect due to the wisdom, the integrity, and the patriotism of the legislative body, by which any law is passed, to presume in favor of its validity, until its violation of the constitution is proved beyond all reasonable doubt. This has always been the language of this court, when that subject has called for its decision; and I know that it expresses the honest sentiments of each and every member of this bench."
In the Sinking-Fund Cases, 99 U.S. 700, 718, 25 L. Ed. 496, the court said: "This declaration [that an act of Congress is unconstitutional] should never be made except in a clear case. Every possible presumption is in favor of the validity of a statute, and this continues until the contrary is shown beyond a rational doubt. One branch of the government cannot encroach on the domain of another without danger. The safety of our institutions depends in no small degree on a strict observance of this salutary rule."
Nor will the court decide questions of a constitutional nature unless absolutely necessary to a decision of the case (Burton v. United States, 196 U.S. 283, 295, 25 S. Ct. 243, 49 L. Ed. 482) and never until the facts upon which its constitutionality depend are before the court (Abrams v. Van Schaick, 293 U.S. 188, 55 S. Ct. 135, 79 L. Ed. 278) nor if there is also ...