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January 3, 1949.

DEWEY, Governor, et al.

The opinion of the court was delivered by: GALSTON

GALSTON, District Judge:

This matter comes to the court on crossmotions, the plaintiff seeking a temporary injunction to restrain the defendants from enforcing Sec. 965 of the Penal Law of the State of New York, McKinney's Consol. Laws, c. 40, and from prosecuting the plaintiff in the Court of Special Sessions of the City of New York, Borough of Richmond, for an alleged violation of that section of the penal law on the ground that it is a statute repugnant to the provisions of the Constitution of the United States; and the defendant moves to dismiss the complaint on the ground that the court lacks jurisdiction. The statute in question forbids the acceptance of any gratuity "in addition to lawful charges" for the leasing or rental of real property.

 The complaint alleges that the plaintiff is a defendant in thirteen criminal actions now pending in the Court of Special Sessions in Richmond County for alleged violations of the foregoing section of the penal law; that these actions are based upon separate informations filed by the District Attorney as a result of a presentment of a grand jury of Richmond County, which informations were filed on October 27, 1948; that the plaintiff was arraigned on that day, and the matter was adjourned to November 10, 1948, at which time a demurrer was filed with the court challenging the validity of the statute.

 Briefly stated the demurrer charged the statute as unconstitutional because it was vague and indefinite; that it violates the Fifth and Sixth Amendments of the Constitution in that it deprives the plaintiff of due process of law; that it violates the Constitution of the State of New York as being repugnant to Article 3, Sec. 1, and Article 3, Sec. 16.

 The complaint herein continues then in its allegations that the Court of Special Sessions on December 1, 1948 overruled the demurrer, and thereupon the plaintiff entered a plea of not guilty and the court fixed January 12, 1949 as the date for trial. The plaintiff further alleges that he must now stand trial and if convicted must appeal to the Appellate Division of the State of New York, then the Court of Appeals, and then to the United States Supreme Court if necessary. Nevertheless, it is claimed by the plaintiff herein that he has been deprived of an adequate remedy at law in the state courts.

 Accordingly, since the plaintiff challenges the constitutionality of the state statute, the plaintiff makes application for a three-judge District Court to hear and determine his application for an interlocutory judgment and for final relief.

 Both motions will be disposed of in this opinion, and the first question to be determined is whether in the circumstances related the plaintiff is entitled to have a three-judge court convened pursuant to 28 U.S.C.A. ยง 2281. That section reads as follows:

 "An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State Statutes, shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title."

 Clearly from the foregoing the District Judge before whom the matter comes in the first place must convene a three-judge court if the showing made in the complaint and moving papers establishes jurisdiction. If, on the other hand, the court is without jurisdiction, then the single District Judge, by virtue of the section quoted, is under no such compulsion.

 It must be determined whether the allegations of the complaint under the authorities are sufficient ground to justify this court in convening a three-judge court.

 In Ex parte Poresky, 290 U.S. 30, 54 S. Ct. 3, 4, 78 L. Ed. 152, it appears that the petitioner brought a suit against the Governor of Massachusetts et al. to restrain the enforcement of a Massachusetts law relating to compulsory automobile liability insurance on the ground that the statute violated the Fourteenth Amendment. The District Judge dismissed the complaint, though recognizing the rule that if the court were warranted in taking jurisdiction, and the case fell within Sec. 266 of the Judicial Code, *fn1" a single judge was not authorized to dismiss the complaint on the merits, whatever his opinion of the merits might be. The Supreme Court said:

 "But the provision requiring the presence of a court of three judges necessarily assumes that the District Court has jurisdiction. * * * That provision does not require three judges to pass upon this initial question of jurisdiction.

 "The existence of a substantial question of constitutionality must be determined by the allegations of the bill of complaint. Mosher v. Phoenix, 287 U.S. 29, 30, 53 S. Ct. 67, 77 L. Ed. 148; Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105, 53 S. Ct. 549, 550, 77 L. Ed. 1062.

 There have been some District Court decisions following the Poresky case, supra. See Pullen v. Patton et al; D.C., 19 F.Supp. 340; Osage Tribe of Indians v. Ickes, D.C., 45 F.Supp. 179, affirmed 77 U.S.App.D.C. 114, 133 F.2d 47, certiorari denied 319 U.S. 750, 63 S. Ct. ...

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