The opinion of the court was delivered by: KAUFMAN
Once again, the federal courts are faced with a challenge to the constitutionality of the Waterfront Compact between the states of New York and New Jersey.
This is an action by William V. Bradley, individually and as President of the International Longshoremen's Association, on behalf of its members, and James S. Castellano to permanently enjoin the Waterfront Commission of New York Harbor from enforcing Articles IX and XII of the Compact and the Amendment to Regulation No. 7, promulgated pursuant to Article XII on March 17, 1955, effective April 1, 1955.
This Court, in a Memorandum dated March 31, 1955, 130 F.Supp. 303, denied plaintiffs' request for a temporary order restraining the enforcement of Articles IX and XII and the Amendment to Regulation No. 7. Plaintiffs now demand that the Court convene a Three-Judge Court pursuant to28 U.S.C. §§ 2281 and 2284 because they ask for a permanent injunction on constitutional grounds against the enforcement of a state statute by a commission acting under the statute. 28 U.S.C. § 2281. Before this Court may properly convene a Three-Judge Court it must closely examine the complaint to determine whether a substantial federal question is presented. 'It is * * * the duty of a district judge, to whom an application for an injunction restraining the enforcement of a state statute or order is made, to scrutinize the bill of complaint to ascertain whether a substantial federal question is presented * * *.' California Water Service Co. v. City of Redding, 1938, 304 U.S. 252, 254, 58 S. Ct. 865, 866, 82 L. Ed. 1323. If all the federal questions presented are insubstantial, and no basis for federal jurisdiction is alleged in the complaint other than such insubstantial federal questions, this Court is under a duty to dismiss the complaint for lack of jurisdiction over the subject matter. Ex parte Poresky, 1933, 290 U.S. 30, 54 S. Ct. 3, 78 L. Ed. 152; California Water Service Co. v. City of Redding, 1938, 304 U.S. 252, 58 S. Ct. 865; O'Rourke v. Waterfront Comm., D.C.S.D.N.Y.1954, 118 F.Supp. 236; Robinette v. Chicago Land Clearance Comm., D.C.N.D.Ill.1951, 115 F.Supp. 669; Poresky v. Ryan, 1 Cir., 1936, 82 F.2d 311. On the other hand, if there is any jurisdictional basis for the complaint this Court is under a duty to convene a Three-Judge Court, and it cannot dismiss the complaint on the merits. Stratton v. St. Louis Southwestern Ry. Co., 1930, 282 U.S. 10, 15, 51 S. Ct. 8, 75 L. Ed. 135; Webb v. State University of New York, D.C.S.D.N.Y.1954, 120 F.Supp. 554; cf. Ex parte Metropolitan Water Co. of West Virginia, 1911, 220 U.S. 539, 545, 31 S. Ct. 600, 55 L. Ed. 575; But see Ex parte Buder, 1926, 271 U.S. 461, 467, 46 S. Ct. 557, 70 L. Ed. 1036; Louisville & Nashville R. Co. v. Garrett, 1913, 231 U.S. 298, 304, 34 S. Ct. 48, 58 L. Ed. 229; Contra, Waddell v. Chicago Land Clearance Comm., 7 Cir., 1953, 206 F.2d 748.
Since jurisdiction based upon diversity of citizenship does not affirmatively appear on the face of the complaint, federal jurisdiction, if at all, must be predicated upon the existence of a substantial federal question.
'The lack of substantiality in a federal question may appear either because it is obviously without merit or because its unsoundness so clearly results from the previous decisions of (the Supreme) Court, as to foreclose the subject.' California Water Service Co. v. City of Redding, supra, 304 U.S. at page 255, 58 S. Ct. at page 867.
As a consequence of these decisions, this Court must now determine at the threshold, whether the federal questions presented are substantial.
A brief sketch of the salient features of the Compact should aid in bringing into sharper focus the issues now before the Court. The Compact created the bistate Waterfront Commission and granted to the Commission powers to license pier superintendents, hiring agents, port watchmen and stevedores and to register longshoremen for work on the waterfront. Effective power to prevent and cure deleterious waterfront conditions was lodged in the Commission by making the right to work on the New York waterfront conditional upon the possession of a license or registration card which could be denied by the Commission acting under specified standards of good character and work regularity. The Compact also sought, in Article XII, to eliminate the 'shape-up' system of employing longshoremen by substituting for it a group of employment information centers as the exclusive agencies through which longshoremen could be hired.
The Amendment to Regulation No. 7, promulgated by the Commission pursuant to Article XII, classifies dock workers on a tri-partite basis for the purposes of obtaining work through the employment information centers. Workers are classified either 'permanent' or 'regular' employees according to the duration of their usual employment contract (i.e., daily or weekly basis) or, if numerous longshoremen are accustomed to working as a team, they may be classified as a 'gang' upon a 'regular' or 'extra' basis.
The names of persons in the three main classifications are placed upon three 'rosters' which are posted in the employment centers. An employer may place an employee's name, or an employee may place his own name, upon the relevant roster, providing that the worker is in possession of a registration card issued pursuant to the good character and regularity of employment standards of Articles VIII and IX. Daily or weekly hiring is effected, usually one day in advance of the work, by the employer's selection, through his licensed hiring agent, of men on the resters of the employment information center. Any employee may remove his own name from a roster (or a majority of the members of a gang may remove the gang's listing) or the employer who originally listed the employee on the roster may remove the employee's name from the particular roster on which it was originally placed. Those placed on the 'regular employee' roster must work at least twelve days a month to remain on this particular roster, unless the failure to work the required number of days was for 'sufficient cause'.
Article IX of the Compact is challenged here both upon its face, as construed, and 'as applied' to the plaintiff Castellano. Article IX sets up the requirements of regularity of employment. Longshoremen who do not work or apply for work at an employment information center at least eight days in each month of a six month period are removed from the register, and, therefore, are ineligible for employment for a fixed time unless 'good cause' is shown. The Commission, by regulation, fixed the eight-day rule pursuant to the standards in Article IX for establishing minimum working periods for continuance on the register:
'(a) To encourage as far as practicable the regularization of the employment of longshoremen;
'(b) To bring the number of eligible longshoremen more closely into balance with the demand for longshoremen's services within the port of New York district without reducing the number of eligible longshoremen below that necessary to meet the requirements of longshoremen in the port of New York district;
'(c) To eliminate oppressive and evil hiring practices affecting longshoremen and waterborne commerce in the port of New York district;
'(d) To eliminate unlawful practices injurious to waterfront labor; and
'(e) To establish hiring practices and conditions which will permit the termination of governmental regulation and intervention at the earliest opportunity.'
The constitutional attack upon the face of Article IX and the eight-day requirement is completely without substance. Article IX has squarely been held constitutional, in the face of all the contentions now urged, by a Three-Judge Court consisting of the late Circuit Judge Augustus N. Hand, Judge McGohey and Judge Weinfeld in Linehan v. Waterfront Commission, D.C.S.D.N.Y. 1953, 116 F.Supp. 683. The case, on direct appeal to the United States Supreme Court, 347 U.S. 439, 74 S. Ct. 623, 98 L. Ed. 826, was affirmed without opinion by seven Justices for the majority. Justices Douglas and Black dissented on the ground that they thought substantial the very questions which the majority thought so frivolous that it rejected them without even dignifying them by a short majority opinion. These same contentions with respect to Article IX are once again urged here.
In Linehan, Judge Hand, in sustaining Article IX's conditioning of the right to work upon possession of a registration card which the Commission had the power to revoke for failure to work or apply ...