U.S. Supreme Court GIBBS v. BUCK, 307 U.S. 66 (1939)

[Page 307 U.S. 66, 68]

Messrs. Thomas G. Haight, of Jersey City, N.J., Louis D. Frohlich, of New York City, Frank Wideman, of Washington, D.C., and Herman Finkelstein, of New York City, for appellees.

Mr. Justice REED delivered the opinion of the Court.

This is an appeal from the order of a three-judge court refusing to dismiss a bill of complaint on motion for failure to set out facts sufficient to show Federal or equity jurisdiction, or to constitute a cause of action, and granting an interlocutory injunction against the enforcement of a Florida statute aimed at combinations fixing the price for the privilege of rendering privately or publicly for profit copyrighted musical compositions. Sec. 266, Jud.Code, 28 U.S.C.A. 380.

The appellant, the state Attorney General and various State Attorneys, are officers of the State of Florida charged with the enforcement of the act. The appellees, complainants below, are the American Society of Composers, Authors and Publishers, an unincorporated association organized under the laws of the State of New York; Gene Buck as president of the Society; various corporations publishing musical compositions; a number of authors and composers of copyrighted music; and several next of kin of deceased composers and authors. This suit was brought by complainants on behalf of themselves and others similarly situated, members of the Society, too numerous to make it practicable to join them as plaintiffs in a matter of common and general interest. [Footnote 1]

One of the rights given by the Copyright Act is the exclusive right to perform copyrighted musical compositions in public for profit. [Footnote 2] The bill of complaint alleges that users of musical compositions had refused to recog-

[Page 307 U.S. 66, 72]

risdiction, the mode of its determination is left to the trial court. [Footnote 4] Both complainants and defendants were content to rest upon the bill and motion.

The bill alleges that the value of the matter in dispute exceeds the jurisdictional amount. Such a general allegation when not traversed is sufficient, unless it is qualified by others which so detract from it that the court must dismiss sua sponte or on defendants' motion. [Footnote 5] In this instance, the allegation is, in effect, traversed by the language of the motion which asserts that no plaintiff has shown loss from enforcement equal to the jurisdictional amount. No other allegations are denied. By this method of attack the facts set out in the bill are left unchallenged for the court to accept as true without further proof. The burden of showing by the admitted facts that the federal court has jurisdiction rests upon the complainants. If there were any doubt of the good faith of the allegations, the court might have called for their justification by evidence. [Footnote 6] In view of the unchallenged facts, federal jurisdiction will be adequately established, if it appears that for any member, who is a party, the matter in controversy is of the value of the jurisdictional amount,7 or, if to the aggregate of all the members in this representative suit, the matter in controversy is of that value.

[Page 307 U.S. 66, 73]

publicly perform for profit' musical compositions owned by its members. Licenses are issued by the Society to users in Florida 'for the public performance for profit' of these compositions. After payment of expenses and royalties for similar rights to foreign associates, and retention of certain reserves, the receipts from licenses are divided among the members in amounts and by classifications fixed by the articles of association and the Board of Directors. The Society undertakes to protect itself and its members from piracies of the rights assigned to it. The Society has, in the absence of the challenged legislation and without now giving consideration to other objections as to the legality of its organization, a right to license which may be injuriously affected by the Florida statute. Whether this right to license flows from its limited ownership of the copyrights or by authority of its members is immaterial here. We find it unnecessary to decide whether this unincorporated association has standing to sue and confine our decision to the amount in controversy between the members of the Society and the defendants. Members, both corporate copyright owners and individual composers of music and lyrics, are plaintiffs. They represent all other members. As the members own the copyrights, less the limited assignment to the Society of the right of public performance for profit, and share in the earnings through mandatory distribution under the articles of association and not by way of dividends, they are proper parties to e action. [Footnote 8] These members are real

[Page 307 U.S. 66, 74]

parties in interest. Because of the interposition of the statute they cannot in combination license production and collect fees in Florida. Unless the relief sought, the invalidation of the statute, is obtained, the members cannot conduct their business through the medium of the Society. They have a common and undivided interest in the matter in controversy in this class suit. [Footnote 9]

The essential matter in controversy here is the right of the members, in association through the Society, to conduct the business of licensing the public performance for profit of their copyrights. This method of combining for contracts is interdicted by the Florida statute. It is not a question of taxation or regulation but prohibition. Under such circumstances, the issue on jurisdiction is the value of this right to conduct the business free of the prohibition of the statute. [Footnote 10] To determine the value of this right the District Court had the admitted facts that more than three hundred contracts expiring in 1940 were in existence between the Society and the Florida users; that in 1936 alone almost sixty thousand dollars was collected from the users, and that similar sums were expected for the remainder of the term. While the net profits of the business in Florida is not shown, the business of the Society, as a whole, is profitable. The three publisher parties receive more than $150,000 yearly and

[Page 307 U.S. 66, 75]

individuals more than $5,000 per year each. The cost of compliance with its requirements is evidence also of the value of the right of freedom from the act. [Footnote 11] The complainants, other than the Society, allege without traverse that the cost to each one of providing individually in Florida the services now provided by the Society for each member would exceed $10, 000. Whether this is annually, for the length of the agreement or for some other term is not shown. From these facts, the finding of the District Court that the matter in controversy-the value of the aggregate rights of all members to conduct their business through the Society-exceeds $3,000 in value is fully supported.

[Page 307 U.S. 66, 76]

among them. The damage in the Associated Press case was to its members and this was not shown. Neither was it alleged or proved that any member threatened to withdraw or to reduce its payments.

Failure to State a Cause of Action.-The motion to dismiss also presents generally the issue whether the bill states facts sufficient to constitute a cause of action. By the submission of the motion this issue was left to the Court on the facts alleged in the bill. The elaboration of these facts, contained in the affidavits supporting and objecting to the motion for temporary injunction, is not available for consideration, as these affidavits are a part of the record only for the purpose of determining the propriety of a temporary injunction. [Footnote 14] Whether to grant or refuse a motion to dismiss before answer, is largely a matter of discretion for the court below. [Footnote 15] Where the bill makes an attack upon the constitutionality of a state statute, supported by factual allegations sufficiently strong, as here, to raise 'grave doubts of the constitutionality of the Act' in the mind of the trial court, the motion to dismiss for failure to state a cause of action should be denied. This bill sets out that the exercise of rights granted by the Federal Copyright Act to control the performance of compositions for profit is prohibited by the statute; that existing contracts are impaired; property taken without compensation; recovery on extra state contracts denied and the equal protection and due process clauses of the 14th Amendment, U.S.C.A.Const., violated in manners specifically pleaded. Drastic penalties for violation

[Page 307 U.S. 66, 77]

of the act are provided. [Footnote 16] The manner in and extent to which the challenged statute offends or complies with the applicable provisions of the Constitution will be clearer after final hearing and findings. [Footnote 17] The findings here were on the motion for interlocutory injunction and on the issue of jurisdiction.

Other Assignments.-The other material assignments of error to the interlocutory order specified on the appeal are addressed (1) to the lack of equity in the bill, (2) to the exercise of discretion in ordering a temporary injunction, (3) to the lack of findings before the order of temporary injunction and (4) to the failure to strike from the bill allegations as to certain sections which deal with contract relations between the Society and users of the musical compositions because these sections are not enforced by the state officers. We treat of them briefly: ( 1) It is clear that there is equitable jurisdiction to prevent irreparable injury, if the sections of the state statute outlawing the Society raise issues of constitutionality. The heavy penalties for violation and the prohibition of the issue of licenses or collection of fees show the need to protect complainants. [Footnote 18] (2) Upon the conclusion that the motion to dismiss should be overruled, there was no abuse of discretion in granting an interlocutory injunction. [Footnote 19] The damage before final judgment from the enforcement of the act as shown by the affidavits would be irreparable. The allegations in the bill of threats of enforcement and the declaration in the affidavit of the

[Page 307 U.S. 66, 80]

bill attacking other provisions of the statute raise only moot questions. If this record can be said to raise any 'grave', 'novel', or 'unique' question at all, that question is whether a State has power to prohibit price fixing by monopolies in restraint of trade.

If the issue is not narrowed to this single point, approval is given to the enjoining of State officials from action which they have no duty to perform and have solemnly disclaimed both here and in the District Court. [Footnote 3] In the absence of an interpretation by the Florida Supreme Court, to what more authoritative source or evidence may a Federal court turn for the meaning of the statute, than to the decision of the highest State official charged with its enforcement? He has determined that, so far as he and the prosecuting attorneys under him are concerned, appellees may license their compositions as they please, may combine to detect and punish infringers and may operate in Florida at will, provided only that they abandon monopolistic price fixing. Even as to the statutory prohibition against price fixing, all that is before us, a practice more desirable and more in keeping with our dual form of government, previous decisions,4 and the trend of Congressional legislation,5 would be to refrain from Federal judicial interference until the State courts are presented with an opportunity to define the statutory duties of appellants. 'And ... the presumption is in all cases that the state courts will do what the Constitution and laws of the United States require.' 6

[Page 307 U.S. 66, 81]

Judicially restraining these Florida officials from action which they declare they cannot and will not take, denies to Florida the traditional respect that has been accorded State officials by this Court. [Footnote 7]

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presentation of evidence to a Federal court, at what point in our history and in what manner did they lose it? The people have not exercised their exclusive authority, by Constitutional amendment, to strip the States of their power over price fixing combinations and thus raise monopoly above the traditional power of legislative bodies.

It was expressly conceded at the bar that Florida had the Constitutional power to prohibit price fixing combinations unless the copyright laws limited this power. And, since argument of the present case, a decision rendered by us February 13, this year, made clear the principle that the copyright laws grant no immunity to copyright owners from statutes prohibiting monopolistic practices and agreements. We there declared that 'An agreement illegal (by statute) because it suppresses competition is not any less so because the competitive article is copyrighted.' [Footnote 12]

'Due process' has been judicially endowed with great elasticity in relation to property rights, but it is inconceivable that it would afford refuge for monopolies deemed undesirable by the people's representatives. When a legislature as a matter of public policy determines to prohibit monopolistic combinations, we cannot, under any doctrine of 'due process', rightfully 'review their economics or their facts.' [Footnote 13] And, although 'due process' is invoked, can evidence either add to or take from the legislative power to permit, regulate or prohibit monopolies in the public interest?

[Page 307 U.S. 66, 88]

revolutionary departure from our constitutional form of government, under which the wisdom of legislation, within the field of legislative action, was left to the judgment of elected representatives of the people.

Florida can find little comfort in the admonition that 'Ordinarily it would be expected that where a temporary injunction is considered necessary ... a final order would follow with all convenient speed.' This law has now already been suspended for a year, and experience demonstrates that injunctive suspension of State laws and State action can hang in the courts for many years before receiving final disposition. 19

Second. Jurisdictional Amount.

These eleven appellees alleged in their bill for injunction that they sued on behalf of themselves and the more than 1,000 other (American) members of the Society. No determination is made here 'that for any member, who is a party, the matter in controversy is of the value of the jurisdictional amount'-$3,000. However, while appellees are not aided in establishing the jurisdictional amount by the 'allegation that (they) ... sued on behalf of others similarly situated,'20 the Court nevertheless holds that the jurisdictional amount is in controversy in 'the value of the aggregate rights of all members' (including the more than 1,000 who have not appeared in person) to combine and fix prices in Florida. 'Assuming that such a case as this may be called a class action, and ... could be maintained as such ... yet that it may be properly a class action does not affect the rule against aggregation (of claims for making up the jurisdictional amount), because (such aggregation) ... is necessarily only applicable to those class actions in which several claimants to a fund are joined as plaintiffs asserting common and undivided rights therein.' [Footnote 21] Appellees assert no common and undivided rights in any fund22 or property;23 'the amount payable to each (by the Society) depends upon his contract alone.' [Footnote 24] Neither does appellees' bill seek, as would the traditional class or representative bill in equity, to protect group rights all claimed under and traceable to a single decree,25 or rights 'which ... (no one plaintiff) can enforce in the absence of the' others because derived from a single security instrument. [Footnote 26] In this proceeding, all that members of the Society have in common is their alleged right to violate with impunity the Florida statute against price fixing. Unless opposition to and violation of the statute can be their bond of unity, appellees have 'separate and distinct demands ... (united) for convenience and economy in a single suit, (and) it is essential that the demand of each be of the requisite jurisdictional amount.' [Footnote 27]

[Page 307 U.S. 66, 90]

not, in fact could not, extend that jurisdiction which depends solely upon Acts of Congress. 28

A common desire to disregard a State law cannot serve as a common and undivided interest for purposes of Federal jurisdiction;29 otherwise, all who oppose such a law can aggregate the values of their alleged individual rights so to disregard the law, in order that they may escape the courts of a State and bring its law before a Federal court. And the fact that a State law inflicts pecuniary loss upon members of a non-profit association because of their membership does not permit aggregation of the members' pecuniary interests as a basis for attack upon the law in a Federal court by some members 'on behalf and with the authority of all.' [Footnote 30] Here, the individual members have made no showing of what they as individuals have at stake-or of what all the members as a class stand to lose by virtue of the Florida law.

The enjoined State officials have only the duty to prosecute appellees if they continue to fix prices (i.e., to issue licenses) through monopolistic combinations, and these officials have expressly disavowed any intention to do more. [Footnote 31] Appellees are left free to form such combinations as they please in Florida for the purpose of protecting against copyright infringements. They are here deprived by the Florida statute only of the right to com-

[Page 307 U.S. 66, 92]

income from the Society will actually be increased when the unprofitable Florida operations cease because of the statute. Measuring the amount in controversy on the above theory, jurisdiction might be obtained by a Federal court to enforce rights of a value far less than the jurisdictional $3,000 required by Congress. For illustration, a statute might prohibit parking of automobiles on certain city streets; an automobile owner assailing the law might be admitted to the jurisdiction of the Federal court by alleging that it would cost him more than three thousand dollars to purchase a parking lot in which to park off the streets of the prohibited area. He would thus 'comply' with the statute and abandon the streets in obedience to it. [Footnote 34] I do not believe that jurisdiction of a Federal court can be rested on measurements of the imagined cost of what a complainant conceivably could, but certainly would never do as an alternative to action forbidden by statute.

The statutory monetary standard is precise and the amount in controversy therefore cannot be conjectural. 'It is impossible to foresee into what mazes of speculation and conjecture we may not be led by a departure from the simplicity of the statutory provision. 'Accordingly, this court has uniformly been strict to adhere to and enforce it.' [Footnote 35]

[Page 307 U.S. 66, 93]

Without proof of the amount each appellee or member has in issue, how can the 'aggregate amount' be fixed at any figure?

Rigid enforcement of the jurisdictional requirement will limit the interference of Federal courts in State legislation and will accord with the policy of Congress in narrowing the jurisdiction of Federal courts by successive increases in the jurisdictional amount. [Footnote 36] 'The policy of the statute calls for its strict construction.' [Footnote 37] Since no individual complainant has established that he has the statutory jurisdictional amount in controversy, to rest jurisdiction of a Federal court on no more than the unified desire of many complainants to violate a State statute prohibiting monopolistic price fixing, does constitute a 'novel, if not unique,' and 'grave' judicial departure from the jurisdictional requirement fixed by Congress.

[Page 307 U.S. 66, 94]

ests the injunction may affect.' [Footnote 38] The injunction here was not granted upon conditions that would protect the interests of all who might be affected by it. It neither ordered the monopoly tribute exacted by appellees to be paid into court during suspension of the Florida statute, nor required a bond for the benefit of, and adequate to indemnify those who must pay this tribute until the court permits the statute to go into effect.

Nevertheless, this Court now refuses to correct the grossly unjust failure to protect those who may suffer irreparable injury from the suspension of the Florida law on the ground that 'No objection appears as to the adequacy of the bond or the other terms of the injunction. These remain under the control of the lower court.' However, the lower court has already exercised its control resulting in manifestly injurious error apparent on the record. [Footnote 39] And as 'upon this appeal in equity the whole case is before us, we can render such decree as under all the circumstances may be proper.' [Footnote 40] Litigation is not a game in which justice can be awarded only to the alert and fastidious objector, particularly when-as here-a court suspends statutory rights of members of the public who, not being in court, have no opportunity to object. The injustice to the public apparent on this record violates the rudimentary principles of equity and fair play. We should neither condone nor permit it.

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terms, should not benefit by the suspension, in the event the law is later held constitutional. Otherwise, a judicially granted period of immunity will reward litigants who unsuccessfully assail the constitutionality of legislation. Seemingly, the time has arrived when despite our constitutional system of government no State law can become effective until a Federal court hears evidence on its constitutionality. The courts- responsible for this fundamental change-should at least protect citizens of an enacting State from disobedience to a State law permitted by an erroneous or improvident interlocutory injunction.

The interlocutory injunction should be vacated. Footnotes

Footnote 1 Equity Rule 38, 28 U.S.C.A. following section 723.

Footnote 2 Act of March 4, 1909, Sec. 1(e), c. 320, 35 Stat. 1075, 17 U.S.C. Sec . 1(e), 17 U.S.C.A. 1(e).

Footnote 3 Fla.Gen.Laws 1937, Vol. I, c. 17807.

Footnote 4 Wetmore v. Rymer, 169 U.S. 115, 120, 121 S., 18 S.Ct. 293, 295; McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 184, 56 S.Ct. 780, 782; KVOS, Inc. v. Associated Press, 299 U.S. 269, 278, 57 S.Ct. 197, 200.

Footnote 5 KVOS, Inc. v. Associated Press, 299 U.S. 269, 277, 57 S.Ct. 197, 200; McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785.

Footnote 6 McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S. Ct. 780, 785.

Footnote 7 Grosjean v. American Press Co., 297 U.S. 233, 241, 242 S., 56 S.Ct. 444, 445; Clark v. Paul Gray, Inc., , 59 S.Ct. 744, 83 L.Ed. --, decided today.

Footnote 8 Article XV, section 1, of the articles of association, reads as follows: 'Apportionment of Royalties-'Section 1. All royalties and license fees collected by the Society shall be from time to time as ordered by the Board of Directors distributed among its members, provided, however:'(a) That all expenses of operation of the Society and sums payable to foreign affiliated Societies shall be deducted therefrom and duly paid; and'(b) That the Board of Directors, by two-thirds vote of those present at any regular meeting may add to the Reserve Fund any portion not exceeding 10% Of the total amount available for distribution; and'(c) That the net amount remaining after such deduction for distribution shall be apportioned as follows: one-half (1/2) thereof to be distributed among the 'Music Publisher' members, and one-half (1/2) among the 'Composer and Author' members respectively.'

Footnote 9 Cf. Troy Bank v. G. A. Whitehead & Co., 222 U.S. 39, 32 S.Ct. 9; Shields v. Thomas, 17 How. 3.

Footnote 10 Scott v. Donald, 165 U.S. 107, 114, 17 S.Ct. 262, 264; cf. Hunt v. N.Y. Cotton Exchange, 205 U.S. 322, 334, 27 S.Ct. 529; McNeill v. So. Ry. Co., , 26 S.Ct. 722; Bitterman v. Louisville & N.R. Co., 207 U.S. 205, 28 S.Ct. 91, 12 Ann.Cas. 3; Packard v. Banton, 264 U.S. 140, 44 S.Ct. 257.

Footnote 11 Packard v. Banton, 264 U.S. 140, 44 S.Ct. 257; Petroleum Exploration, Inc. v. Comm., 304 U.S. 209, 215, 58 S.Ct. 834, 837; Healy v. Ratta, , 54 S.Ct. 700; Buck v. Gallagher, 307 U.S. 95, 59 S.Ct. 740, 83 L.Ed. --, decided today.

Footnote 12 298 U.S. 178, 56 S.Ct. 780.

Footnote 13 299 U.S. 269, 57 S.Ct. 197.

Footnote 14 Polk Company v. Glover, 305 U.S. 5, 9, 59 S.Ct. 15, 16.

Footnote 15 O'Keefe v. New Orleans, D.C., 273 F. 560; Wright v. Barnard, D.C., 233 F. 329; Doherty v. McDowell, D.C., 276 F. 728; Ralston Steel Car Co. v. National Dump Car Co., D.C., 222 F. 590, 592. Compare Kansas v. Colorado, 185 U.S. 125, 144, 145 S., 22 S.Ct. 552, 558, 559; Wisconsin v. Illinois, 270 U.S. 634, 46 S.Ct. 354; Wilshire Oil Co. v. United States, 295 U.S. 100, 102, 103 S., 55 S.Ct. 673, 674.

Footnote 16 Fine $50 to $5,000 and imprisonment one to ten years or either. Section 8, Fla.Gen.Laws, 1937, c. 17807.

Footnote 17 Borden's Farm Products Co. v. Baldwin, , 211-213, 55 S. Ct. 187, 193; Polk Co. v. Glover, 305 U.S. 5, 59 S.Ct. 15.

Footnote 18 Ex parte Young, 209 U.S. 123, 165, 28 S.Ct. 441, 456, 13 L.R.A.,N.S., 932, 14 Ann.Cas. 764; Terrace v. Thompson, 263 U.S. 197, 215, 44 S.Ct. 15, 17.

Footnote 19 Alabama v. United States, 279 U.S. 229, 231, 49 S.Ct. 266; Ohio Oil Co. v. Conway, , 49 S.Ct. 256.

Footnote 20 Sec. 10, Fla.Gen.Laws, 1937, c. 17807.

Footnote 21 Terrace v. Thompson, 263 U.S. 197, 214-216, 44 S.Ct. 15, 18; Cline v. Frink Dairy Co., 274 U.S. 445, 451-452, 47 S.Ct. 681, 682.

[Footnote 1] Cf. Borden's Co. v. Baldwin, 293 U.S. 194, 203, 55 S.Ct. 187, 189; Aetna Ins. Co. v. Hyde, 275 U.S. 440, 447, 48 S.Ct. 174, 176; Public Service Commission v. Great Northern Utilities Co., 289 U.S. 130, 136, 137 S., 53 S.Ct. 546, 548.

[Footnote 2] Borden's Co. v. Baldwin, supra, 293 U.S. page 203, 55 S.Ct. page 189.

[Footnote 3] Cf., Carroll v. Greenwich Insurance Co., 199 U.S. 401, 412, 26 S.Ct. 66, 68.

[Footnote 4] Gilchrist v. Interborough Co., 279 U.S. 159, 207, 49 S.Ct. 282, 288; Fenner v. Boykin, 271 U.S. 240, 243, 244 S., 46 S.Ct. 492, 493; cf., Waters-Pierce Oil Co. v. Texas, 177 U.S. 28, 43, 20 S. Ct. 518, 524; and see Clark, Brandeis, JJ., dissenting, Cincinnati v. Cincinnati and H. Traction Co., 245 U.S. 446, 461, 38 S.Ct. 153, 157.

[Footnote 5] 28 U.S.C. 41, 28 U.S.C.A. 41; c. 726, 50 Stat. 738, 48 Stat. 775; 47 Stat. 70, 29 U.S.C.A. 101 et seq.; 43 Stat. 938, 28 U.S.C.A. 345; 36 Stat. 1162, amended 37 Stat. 1013, 28 U.S.C.A. 380.

[Footnote 6] Defiance Water Co. v. Defiance, 191 U.S. 184, 194, 24 S.Ct. 63, 67.

[Footnote 7] See Spielman Motor Co. v. Dodge, 295 U.S. 89, 96, 55 S.Ct. 678, 681; Cincinnati v. Cincinnati and H. Traction Co., supra, 245 U. S. page 454, 455, 38 S.Ct. page 155; Virginia v. West Virginia, 231 U.S. 89, 91, 34 S.Ct. 29, 30; cf. Des Moines v. City Ry. Co., 214 U.S. 179, 184, 29 S.Ct. 553, 554. This injunction makes strikingly pertinent the question of Justice Harlan, dissenting, in Ex parte Young, 1908, 209 U.S. 123, 179, 28 S.Ct. 441, 461, 462, 13 L.R.A.,N.S., 932, 14 Ann.Cas. 764: 'If the Federal court could thus prohibit the law officer of the state from representing it in a suit brought in the state court, why might not the bill in the Federal court be so amended that that court could reach all the district attorneys in Minnesota, and forbid them from bringing to the attention of grand juries and the state courts violations of the state act ...?' His apprehensive prophecy has more than come true in the present case.

[Footnote 8] Cf., Continental Wall Paper Co. v. Louis Voight & Sons Co., 212 U.S. 227, 262, 29 S.Ct. 280, 292, affirming, 6 Cir., 148 F. 939, 19 L.R.A., N.S., 143; Gibbs v. Consolidated Gas Co., 130 U.S. 396, 412, 9 S.Ct. 553, 558; McConnell v. Camors-McConnell Co., 5 Cir., 152 F. 321; Pacific Postal Telegraph Cable Co. v. Western Union Tel. Co., C.C., 50 F. 493; American Biscuit & Manuf'g Co. v. Klotz, C.C., 44 F. 721; 1 Pom.Equity Juris. (3rd Ed.) 402.

[Footnote 9] Waters-Pierce Oil Co. v. Texas (No. 1), 212 U.S. 86, 107, 29 S.Ct. 220, 225. 'There is nothing in the Constitution of the United States which precludes a state from adopting and enforcing ( statutes which secure competition and preclude combinations which tend to defeat it) .... To so decide would be stepping backwards.' International Harvester Co. v. Missouri, 234 U.S. 199, 209, 34 S.Ct. 859, 862, 52 L.R.A.,N.S., 525. See, Great Atlantic & Pac. Tea Co. v. Grosjean, 301 U.S. 412, 425, 426 S., 57 S.Ct. 772, 777, 112 A.L.R. 293; Nebbia v. New York, 291 U.S. 502, 529, 54 S.Ct. 505, 512, 89 A.L.R. 1469; Rast v. Van Deman & Lewis, , 366-367, 36 S.Ct. 370, 377, 378.

[Footnote 10] National Cotton Oil Co. v. Texas, 197 U.S. 115, 129, 25 S.Ct. 379, 381, 382; Carroll v. Greenwich Ins. Co., supra, 199 U.S. page 411, 26 S.Ct. page 67.

[Footnote 11] Puerto Rico v. Shell Co., 302 U.S. 253, 260, 261 S., 58 S.Ct. 167, 170, 171.

[Footnote 12] Interstate Circuit, Inc., v. United States, , 59 S.Ct. 467, 476, 83 L.Ed. --.

[Footnote 13] Central Lumber Co. v. South Dakota, 226 U.S. 157, 161, 33 S.Ct. 66, 67.

[Footnote 14] Waters-Pierce Oil Co. v. Texas (No. 1), supra, 212 U.S. page 108, 29 S.Ct. page 225.

[Footnote 15] Carroll v. Greenwich Ins. Co., supra, 199 U.S. page 411, 26 S.Ct. page 67; Central Lumber Co. v. South Dakota, supra, 226 U.S. page 160, 33 S.Ct. page 67. 'A Legislature may hit at an abuse which it has found, even though it has failed to strike at another.' United States v. Carolene Products Co., 304 U.S. 144, 151, 58 S.Ct. 778, 783.

[Footnote 16] Cf. Ex parte Young, , Harlan, J., dissenting, 168-204, 28 S.Ct. 441, 457-472, 13 L.R.A.,N.S., 932, 14 Ann.Cas. 764; and see Fitts v. McGhee, 172 U.S. 516, 528, 530 S., 19 S.Ct. 269, 273, 274; In re Ayers, 123 U.S. 443, 496, 497 S., 505, 8 S.Ct. 164, 178, 182.

[Footnote 17] Polk Co. v. Glover, , 59 S.Ct. 15.

[Footnote 18] Borden's Co. v. Baldwin, supra, 293 U.S. at page 210, 55 S.Ct. at page 192.

[Footnote 19] See dissent, McCart v. Indianapolis Water Co., 302 U.S. 419, 435, and note, 58 S.Ct. 324, 331.

[Footnote 20] Lion Bonding Co. v. Karatz, 262 U.S. 77, 86, 43 S.Ct. 480, 483

Footnote 21 Eberhard v. Northwestern Mut. Life Ins. Co., 6 Cir., 241 F. 353, 356, referred to with apparent approval in Lion Bonding Co. v. Karatz, supra.

Footnote 22 Smith v. Swormstedt, 16 How. 288.

Footnote 23 Beatty and Ritchie v. Kurtz, 2 Pet. 566.

Footnote 24 Eberhard case, supra, 241 F. 356.

Footnote 25 Shields v. Thomas, 17 How. 3, but see Chapman v. Handley, , 14 S.Ct. 386.

Footnote 26 Troy Bank v. G. A. Whitehead & Co., 222 U.S. 39, 41, 32 S.Ct. 9.

Footnote 27 Id. 222 U.S. 40, 32 S.Ct. 9.

Footnote 28 Alaska Packers v. Pillsbury, 301 U.S. 174, 177, 57 S.Ct. 682, 683; Christopher et al. v. Brusselback, 302 U.S. 500, 505, 58 S. Ct. 350, 3; see, KVOS, Inc. v. Associated Press, 299 U.S. 269, 279, 57 S.Ct. 197, 201.

Footnote 29 Pope v. Blanton, D.C., 10 F.Supp. 15, 18, dismissed per curiam for lack of requisite jurisdictional amount in controversy, 299 U.S. 521, 57 S. Ct. 321; Gavica v. Donaugh, 9 Cir., 93 F.2d 173.

Footnote 30 Rogers v. Hennepin County, , 36 S.Ct. 217; The complaint appears in the original records of this Court, No. 411, Oct. Term 1915. Cf., Robbins v. Western Auto Ins. Co., 7 Cir., 4 F.2d 249, certiorari denied, 268 U.S. 698, 45 S.Ct. 515; Woods v. Thompson, 7 Cir., 14 F.2d 951, and Illinois Bankers' Life Ass'n v. Farris, 7 Cir., 21 F.2d 1014, certiorari denied, 276 U.S. 621, 48 S.Ct. 301.

Footnote 31 Cf., Carroll v. Greenwich Ins. Co., supra, 199 U.S. page 412, 26 S. Ct. page 68.

Footnote 32 Scott v. Donald, 165 U.S. 107, 114, 115 S., 17 S.Ct. 262, 264.

Footnote 33 Cf., Glenwood Lt. Co. v. Mutual Lt. Co., 239 U.S. 121, 125, 126 S., 36 S.Ct. 30, 31, 32; KVOS, Inc. v. Associated Press, 299 U.S. 269, 277, 57 S.Ct. 197, 200.

Footnote 34 'Cost of compliance' with an assailed legislative act may be considered the measure of the amount in controversy when a right of complainant is regulated, or where he is required to take affirmative action. Cf., Kroger Gro. Co. v. Lutz, 299 U.S. 300, 301, 57 S.Ct. 215; McNutt v. General Motors Etc. Corp., 298 U.S. 178, 181, 56 S.Ct. 780, 781. But appellees have not been required to take any affirmative steps, nor are they permitted to fix prices on condition that they 'comply' with regulations. The fixing of prices through combinations has been prohibited. Obviously, appellees cannot be prohibited from doing that which they may also do by 'complying' with the statute.

Footnote 35 Town of Elgin v. Marshall, 106 U.S. 578, 581, 1 S.Ct. 484, 487.

Footnote 36 See Healy v. Ratta, 292 U.S. 263, 270, 54 S.Ct. 700, 703.

Footnote 37 Id. Third. The otherwise complete suspension of Florida's law was limited only by the condition that appellees make bond of five thousand dollars payable to the Attorney General of Florida and the District Attorneys of the State. Manifestly, these officials have no individual interest in the monopoly prohibited by the Florida law. The major injuries accruing from the suspension of the law will not be inflicted upon them, but upon the people of Florida who are required to pay monopoly prices while the law remains enjoined. Thus, while the law is suspended, these non-resident appellees can carry on a monopolistic business in Florida contrary to its prohibitions, and the people of Florida who must pay monopoly prices are granted no protection. We have recently declared the governing principle that 'it is the duty of a court of equity granting injunctive relief to do so upon conditions that will protect all-including the public-whose inter-

Footnote 38 Inland Steel Co. v. United States, decided January 30, 1939, , 59 S.Ct. 415, 417, 83 L.Ed. --.

Footnote 39 See, Lamb v. Cramer, 285 U.S. 217, 222, 52 S.Ct. 315, 317; United States v. Tennessee & Coosa R'd, 176 U.S. 242, 256, 20 S.Ct. 370, 375; Revised Rules of the Supreme Court of the United States, 27, paragraph 6; cf., Mahler v. Eby, 264 U.S. 32, 45, 44 S.Ct. 283, 288.

Footnote 40 United States v. Rio Grande Irrigation Co., 184 U.S. 416, 423, 22 S.Ct. 428, 430; Cincinnati v. Cincinnati & H. Trac. Co., supra, 245 U.S. page 454, 38 S.Ct. page 155; Ridings v. Johnson, 128 U.S. 212, 218, 9 S.Ct. 72, 74; cf., Patterson v. Alabama, 294 U.S. 0, 607, 55 S.Ct. 575, 578.