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August 8, 1973

The BOARD OF ELECTIONS OF the CITY OF NEW YORK et al., Plaintiffs,
John P. LOMENZO, Secretary of State of the State of New York, Defendant

The opinion of the court was delivered by: TENNEY

TENNEY, District Judge.

In the within action plaintiffs, basing jurisdiction upon 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201 et seq. allege that N.Y. Election Law § 355 (McKinney's Consol.Laws, c. 17, Supp.1972), *fn1" which prohibits plaintiffs from conducting volunteer voter registration on Sundays: (a) effects an unconstitutional establishment of religion in violation of the first amendment; (b) prohibits the free exercise of religion in violation of the first amendment; (c) unlawfully discriminates against Sabbatarians in violation of the first and fourteenth amendments; and (d) constitutes an unlawful impediment to the franchise in violation of the first, fourteenth, fifteenth and twenty-sixth amendments. Plaintiffs are various organizations devoted to increasing participation in the electoral process, individuals wishing to conduct volunteer voter registration on Sundays, and the New York City Board of Elections and the commissioners thereof.

Plaintiffs moved pursuant to 28 U.S.C. §§ 2281 and 2284 for an order convening a three-judge court to hear and determine their application for declaratory and injunctive relief. By order dated May 22, 1973, a three-judge court was duly convened. On June 28, 1973, the court heard oral argument on plaintiffs' request for relief and on defendant's motion to dismiss the complaint for lack of jurisdiction. Although we conclude that federal jurisdiction is present, we remand to the single district judge to dismiss for lack of a justiciable controversy.

 The threshold question facing the court is whether we have subject matter jurisdiction over the action. At the oral argument, counsel for plaintiffs withdrew their demand for injunctive relief as set forth in the amended complaint and stated that declaratory relief in this case would be a sufficient remedy. The withdrawal of the demand for injunctive relief stems from the rather unusual posture of the action: to wit, those immediately responsible for enforcing the challenged statute, i.e., the New York City Board of Elections and its commissioners, who ordinarily would be defendants, are co-plaintiffs in this action along with the organizations and individuals wishing to conduct volunteer voter registration on Sundays. By abandoning their prayer for injunctive relief, plaintiffs have rendered this case an improper one for resolution by a three-judge panel. See Mitchell v. Donovan, 398 U.S. 427, 430-431, 90 S. Ct. 1763, 26 L. Ed. 2d 378 (1970); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 153-154, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963); Seergy v. Kings County Republican County Committee, 459 F.2d 308, 312 (2d Cir. 1972); Rosario v. Rockefeller, 458 F.2d 649, 651-652, note 2 (2d Cir. 1972), aff'd, 410 U.S. 752, 93 S. Ct. 1245, 36 L. Ed. 2d 1 (Mar. 21, 1973).

 Under these circumstances, we normally would remand to the single district judge for consideration of the merits. Since, however, we all are agreed that this case is an appropriate one for application of the doctrine of judicial restraint, Rescue Army v. Municipal Court, 331 U.S. 549, 568-575, 67 S. Ct. 1409, 91 L. Ed. 1666 (1947), in the interests of judicial economy we will set forth our reasons for dismissal then remand to the single district judge for entry of an appropriate order of dismissal. Perez v. Ledesma, 401 U.S. 82, 87, 91 S. Ct. 674, 27 L. Ed. 2d 701 (1971).

 The prime requisite for the maintenance of a declaratory judgment action is the existence of an actual controversy, *fn2" particularly when the constitutionality of a legislative act is challenged.

"No federal court, whether this Court or a district court, has 'jurisdiction to pronounce any statute, either of a State or of the United States, void, because irreconcilable with the constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies.' Liverpool, N.Y. & P.S.S. Co. v. Commissioners, 113 U.S. 33, 39, 5 S. Ct. 352, 28 L. Ed. 899 (1885) . . . . The express limitation of the Declaratory Judgment Act to cases 'of actual controversy' is explicit recognition of this principle." Golden v. Zwickler, 394 U.S. 103, 110, 89 S. Ct. 956, 960, 22 L. Ed. 2d 113 (1969).

 Our first inquiry, therefore, must be

"whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S. Ct. 510, 85 L. Ed. 826 (1941) (emphasis added).

 Applying this standard to the instant action, the first difficulty with which we are confronted is the choice of the Secretary of State as the sole party defendant. Under the doctrine of Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908), a state officer may be named as a defendant only so long as such officer has "some connection with the enforcement of the act" in question. Id. at 157, 28 S. Ct. at 453 (emphasis added). It appears that the Secretary of State has no connection with the enforcement of the election laws with regard to voter registration or otherwise. His duties are ministerial only. *fn3" At first blush, therefore, it would seem that since the Secretary of State has nothing to do with the enforcement of § 355, he would have no interest in controverting the allegations of the complaint. Thus the case or controversy requirement of Article III, § 2 of the Constitution would not be satisfied and the court would be deprived of jurisdiction. Indeed, there is support for the bare proposition that lack of a proper defendant deprives a federal court of jurisdiction. See Kerrigan v. Boucher, 450 F.2d 487, 488 (2d Cir. 1971). *fn4"

 At the oral argument counsel for plaintiffs urged that if we held the Secretary of State an improper defendant, plaintiffs should be allowed the opportunity to substitute a proper defendant. Their argument is based on the fact that here a proper defendant most likely would be the Attorney General or Governor, see Socialist Workers Party v. Rockefeller, 314 F. Supp. 984, 988, note 7 (S.D.N.Y.) (three-judge court), aff'd, 400 U.S. 806, 91 S. Ct. 65, 27 L. Ed. 2d 38 (1970), and the Attorney General already is involved in the case as counsel for the present defendant. Therefore, the question boils down to whether federal jurisdiction can be conferred by an amendment to the complaint substituting a proper defendant for an improper one. The answer, at least in this circuit, is in the affirmative. Hackner v. Guaranty Trust Co., 117 F.2d 95, 98 (2d Cir.), cert. denied, 313 U.S. 559, 61 S. Ct. 835, 85 L. Ed. 1520 (1941); see also National Maritime Union of America v. Curran, 87 F. Supp. 423, 425-427 (S.D.N.Y.1949).

 Hackner was a diversity case wherein the claims of none of the original plaintiffs satisfied the amount in controversy required by 28 U.S.C. § 1332. Plaintiffs moved to amend the complaint to substitute a plaintiff who satisfied the jurisdictional minimum. The court allowed the amendment on the grounds (1) that the choice was between requiring the new plaintiff to institute a new action or simply allowing the action to be continued by amendment, and (2) that due process had been satisfied because the defendant had been reasonably apprised of the action. The court commented:

"Defendants' claim that one cannot amend a nonexistent action is purely formal, in the light of the wide and flexible content given to the concept of action under the new rules. Actually she has a claim for relief, an action in that sense; as the Supreme Court has pointed out, there is no particular magic in the way it is instituted." 117 F.2d at 98 (citations omitted).

 Applying the Hackner holding to the instant case, the fact that we are here concerned with substitution of a defendant, rather than a plaintiff, is not a ground for distinguishing this case from Hackner as long as no violation of due process has occurred. Due process has not been violated here because a proper defendant would be represented by the ...

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