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January 4, 1949.


The opinion of the court was delivered by: GALSTON

GALSTON, District Judge.

This non-jury action involves the challenged constitutionality of an ordinance enacted by the defendant on Decmber 6, 1943 for the licensing and regulation of excavations of sand, gravel and clay pits and quarries.

The plaintiff is the owner of approximately eighty acres fronting on Broad Hollow Road and located within the township of Babylon, and since February 1943 has been engaged, among other activities, in excavating, processing and selling sand and gravel. Prior to February 1943, and since about August 1941, Virgil M. Price, the president of the plaintiff company, had through various unincorporated compaines utilized part of the area for the same purposes.

 It is the complaint of the plaintiff that the defendant has unlawfully subjected the plaintiff to the provisions of the ordinance of December 6, 1943 by impeding and attempting to destroy plaintiff's operations, investment and property rights.

 The defendant caused to be served upon the plaintiff a summons requiring the plaintiff to appear before a justice of the peace of the Town of Babylon on June 1, 1948, and charged the plaintiff, its president and two of its workmen who were engaged in the performance of work on the aforesaid premises with violations of the ordinance. Prior to a determination by the justice of the peace in those proceedings, this suit was instituted on June 5, 1948. It is alleged herein that the ordinance is unreasonable and tends to deprive the plaintiff of property without due process of law, is inconsistent with public policy, and is void and unconstitutional within the meaning of the Fourteenth Amendment to the Constitution. Plaintiff alleges that it has no adequate remedy at law, and by this action seeks to have the defendant enjoined from enforcing the ordinance, from otherwise unlawfully interfering with its operations, and asks to have the ordinance adjudged unconstitutional.

 At the trial, after plaintiff's prima facie case was completed, the complaint was amended to conform the pleading to the proof by adding allegations to the effect that during the time that the defendant sought to enforce the ordinance against the plaintiff, other persons in the Town of Babylon had been carrying on similar operations without a permit, and that the attempted enforcement against the plaintiff for violations of the ordinance was exercised in a discriminatory, illegal and corrupt manner so as to destroy the business of the plaintiff "as a competitor of another business in which defendant, its attorney and it sofficials, or some of them, have been and/or are interested". For jurisdictional purposes the complaint was also amended to allege that the manner in controversy exceeds the sum of $3,000.

 Before the trial of the case the plaintiff obtained an ex parte order to show cause on June 7, 1948, returnable on June 9, 1948, in which the plaintiff sought a temporary injunction pending the trial of the case. The rder to show cause contained a stay which restrained the defendant from putting into effect or seeking to enforce the terms of the ordinance. On June 9, 1948, at the request of plaintiff's attorney, as appears from an affidavit of Oscar Murov, verified November 3, 1948, argument of the motion was adjourned to June 15, 1948. At that time the judge before whom the argument was had stayed all criminal prosecutions of employees of the plaintiff and reserved decision on the rest of the motion. On June 16, 1948 defendant applied to the Court of Appeals of the Second Circuit to vacate the stay or increase the bond, and a judge of that court denied the motion on condition that a bond of $10,000 be filed. Thus the operation of the plaintiff continued under the stay. On October 26, 1948, at the request of the judge who had reserved decision on plaintiff's motion for a preliminary injunction, the attorneys for the parties appeared before him and the judge informed them that he was disqualifying himself to act in the matter.

 On November 3, 1948, before another judge of this court, a motion was made to vacate the stay of the order to show cause. That motion was never argued because of the death of the attorney of record for the plaintiff.

 Such was the status of the motion to vacate the stay when the trial of this case came on before me on November 23, 1948. At that time the attorney for the Town stated that since the trial was to proceed he would withdraw the motion to vacate the stay with the privilege of renewing it if that became necessary.

 The fundamental question to be determined by this court is whether it has jurisdiction to entertain the suit. In effect the plaintiff is asking the United States District Court to stay a criminal proceeding pending before a justice of the peace of the Town of Babylon, and to enjoin the Town from enforcing the terms of the ordinance. The ordinance of December 6, 1943 purports on its face to have been enacted pursuant to subdivision 21* of Sec. 130 of the Town Law of the State of New York, Consol.Laws C. 62. It is to be noted that the ordinance is one not for prohibition but for licensing and regulating, and provides that no excavation other than one for the construction of a wall, a building or part thereof, or for farming or public use, shall be commenced except in conformity with the provisions of the ordinance. The challenged sections are parts of those numbered 3, 5, 6 and 8.

 Sec. 3 regulates the fees to be imposed. A minimum fee of $10 for an area not exceeding 5,000 square feet is provided. If the area exceeds 5,000 square feet, the minimum fee shall be $25 plus $1 for each additional thousand square feet or fraction thereof exceeding 5,000 square feet.

 Sec. 5 provides that the permit shall expire by limitation thirty days from the date of issuance unless extended by the Town Board. The section prescribed nothing in respect to what fees if any are to be paid for the renewal permit. Sec. 6 provides that before a permit will be issued, the owner or applicant must execute and file a surety company bond, the amount of which shall be fixed by the Town Board. The bond must be approved by the Board also as to form, sufficiency and manner of execution, and shall be conditioned for the faithful performance of the terms of the ordinance. The section also contains this provision: "Said bond shall remain in force and effect until a certificate of completion has been issued by the Town of Babylon, certifying to the fact that all provisions of the ordinance and conditions of the permit have been carried out ot a satisfactory conclusion. Application for such certificate shall be made by the owner * * * upon forms provided by the Town * * * and shall be accompanied by a cross-section of the affected property prepared by a duly licensed engineer of the State of New York, after completion of the operations * * *"

 Finally, Sec. 8, among other matters, contains the provision: "Upon completion of operations under the terms of the permit * * * the excavated area shall be refilled * * *. The affected area shall be graded to the level of the abutting highway, surfaced with a minimum of four inches of top soil, and seeded to insure fast growing vegetation."

 The plaintiff's position with respect to Sec. 3 -- that relating to fees -- is that the fee for the eighty acres would be $3,505 for a thirty day permit; and it is urged that on an annual basis the fees would amount to $42,060. The assessed value of the property is $35,235, and hence it is argued that such fee is unreasonable and unjust. It is said, moreover, that no sizable operation could be completed within the thirty day period. For the above ...

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