Walker v. Brunswick County School Board, Virginia Petition for Writ of Certiorari

    Supreme Court of the United States
October Term, 1960

No. .1 %.....

I dlewxld B on  V oyage L iquor  Corporation , 

against
Petitioner,

T h o m a s  E . R o h a n , M a r tin  C, E p s t e in , W il l ia m  H . M organ , 
G r a n t  F. D a n ie l s  and S a m u e l  M. B ir n b a u m , being the Chair­
man, Members and Commissioners of the State Liquor Authority of 
the State of New York,

Respondents.

PETITION FOR A WRIT OF CERTIORARI FOR THE 
UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

No. , . | .....

I dle w ild  B on  V oyage L iquor  C orporation , 

against
Petitioner,

H onorable A lex a n d er  B ic k s , H onorable E dward J . D im o c k , 
H onorable J o h n  M . C a s h in , J udges of t h e  U n ited  S tates  D is ­
trict  C ourt for t h e  S o u t h er n  D istr ic t  of N ew  Y ork ,

Respondents.

MOTION FOR LEAVE TO FILE A PETITION FOR A 
WRIT OF MANDAMUS

Charles H. Tuttle,
Counsel and Attorney for Petitioner, 

15 Broad Street,
New York 5, New York.

J ohn F. K elly,
S toddard B. Colby,
S tuart H. J ohnson, J r.,

Also of Counsel. *

* 3 0 7  B A R  P R E S S .  IN C ., S 4  L A F A Y E T T E  S T R E E T . N E W  Y O R K  1 3 , N . Y. — W A  8 - 3 4 3 2



I N D E X

The Applications .........................................................  1

Reference to Opinions Below .....................................  2

Jurisdictional Statement ............................................  3

The Questions Presented ............................................  4

Constitutional and Statutory Provisions Involved....  7
(1) Federal Constitutional Provisions .............  7
(2) Federal Statutes and Regulations ...............  7
(3) New York State Statutory Provisions ........  8

Statement of the Case .................................................. 8
(1) The Importance of this Case ........................  8
(2) The Nature of the Case ................................ 9
(3) Idlewild’s Lawful Export Business ............  9
(4) The State Liquor Authority’s Assertion that

Idlewild’s Business is “ Illegal” under New 
York L aw .......................................................  11

(5) The Institution of this Action to Protect
Idlewild’s Federal Rights .............................  11

(6) The Representations of the State Liquor
Authority Before Judge Bicks that Idle­
wild’s Business was not Threatened .......... 12

(7) Judge Bicks’ Decision Remitting Idlewild to
the State Courts ..........................................  12

PAGE



11 Index

PAGE

(8) Idlewild’s Appeal and the Immediate Extra-
legal Retaliation by the State Liquor Au­
thority ...........................................................  18

(9) Judge Dimock’s Decision ..............   14
(10) The Court of Appeals’ Decision .................  14
(11) Judge Cashin’s Decision .............................. 16
(12) The Court of Appeals’ Refusal to Recall

and Clarify Its Judgment ............................  16

A r g u m e n t  ....................................................................  17

P o in t  I—Idlewild’s petition for certiorari to review 
the admittedly “ anomalous” majority decision 
of the Circuit Court of Appeals presents impor­
tant questions of federal constitutional and statu­
tory law and of judicial jurisdiction which should 
he settled by this Court .......................................  17

P o in t  II—This petition for certiorari also presents 
for review the failure and refusal by the Court 
of Appeals to vacate the orders below which it 
itself held were rendered without jurisdiction—a 
refusal in conflict with decisions of the Courts of 
Appeals for the Third, Fifth and Sixth Circuits 
and in conflict with the implications of decisions 
by the Supreme Court ......................................... 19

P o in t  III—Also a writ of mandamus is a further 
proper means of requiring Judge Bicks and 
Judge Dimock to convene a three-judge court for 
determining Idlewild’s constitutional rights, or, 
failing that, to exercise for the protection of the 
plaintiff’s statutory rights original jurisdiction 
under 28 U. S. C., Sections 1337 and 1331 ......... 22



Index

P oint IV—Furthermore, there was also no occasion 
to abstain in deference to the New York courts 
because those courts have settled the State Law 
in Idlewild’s favor, and also because the state 
remedies are inadequate ........................................  26

P oint V—A writ of mandamus to review the decision 
of Judge Dimock, as well as the decision of Judge 
Bicks, is likewise proper here ..............................  29

P oint VI—Judge Cashin’s decision constitutes such 
a departure from the accepted and usual course 
of judicial proceedings as to call for an exercise 
of this Court’s power of supervision by writ of 
mandamus ............................................................. 31

Conclusion ..................................................................  32

iii

PAGE



IV Index

TABLE OF AUTHORITIES

Cases

Albee Godfrey Whale Creek Co. v. Perkins, 6 F. Supp.
409 (S. D. N. Y., 1933) ........................................ 30

All American Airways v. Village of Cedarhurst, 2
Cir., 201 F. 2d 273 .............................................. 5, 22, 24

Alleghany County v. Mashuda Co., 360 U. S. 185 ......  25

Barcus v. O’Connell, 281 App. Div. 1064 (3rd Dept.,
1953) ......................................................................  27

Bell v. Waterfront Comm, of N. Y. Harbor, 183 F.
Supp. 175, aff’d 2 Cir., 279 F. 2d 853 ...................18, 30

Board of Supervisors v. Tureaud, 5 Cir. 207 F. 2d 
807, vacated and remanded on other grounds, 347
U. S. 971 ........................................................... 6,17,21

Board of Trustees v. U. S., 289 U. S. 48 ..................... 22
Bransford, Ex Parte, 310 TJ. S. 354 ............................  4,18
Burack v. State Liquor Authority of the State of

New York, 160 F. Supp. 161 (E. D. N. Y., 1958) .... 6, 27

California Commission v. United States, 355 U. S.
534 .................................................................... 24,27,30

Chicago v. Atchison Topeka & Santa Fe R. Co., 357
U. S. 77 ................................................................ 24

Chicago, Duluth & Georgian Bay Transit Co. v. Nims,
6 Cir., 252 F. 2d 317 ................................... 6,16, 20, 31

Collins v. Yosemite Park Co., 304 U. S. 518............... 23, 30
Corporation Comm. v. Cary, 296 U. S. 452 .................  28

Dictograph Products Co. v. Sonotone Corp., 2 Cir.,
230 F. 2d 131 dism. per stipulation 352 U. S.
883 ..........................................................................29,32

Driscoll v. Edison Co., 307 U. S. 104.............................  28
During v. Valente, 267 App. Div. 383 (1st Dept., 1944) 5, 26

PAGE



Index v

PAGE

Epstein v. Goldstein, 2 Cir., 110 F. 2d 747 .................16, 20

Federal Trade Comm. v. Smith, 34 F. 2d 323 (S. D.
X. Y., 1929) ........................................................... 30

Florida Lime Growers v. Jacobsen, 362 U. S. 73 ......  25

Gen. Tobacco & Grocery Co. v. Fleming, 6 Cir., 125
F. 2d 596 ............ ' ................................................  30

Gulf Oil Corp. v. McGoIdrick, Matter of, 256 App.
Div. 207 (1st Dept., 1939) aff’d 281 X. Y. 647, 
aff’d McGoIdrick v. Golf Oil Corp., 309 II. S.
414 .........................................................................  5, 26

Hillsborough v. Cromwell, 326 U. S. 620 .....................26, 28
Hines v. Davidowitz, 312 IT. S. 52 ...............................  23

Johnson v. Yellow Cab Co., 321 IT. S. 383 .................  23

Maynard & Child, Inc. v. Shearer, Ky., 290 S. W.
2d 790 .................................................................... 23

McQuillen v. Dillon, 2 Cir., 98 F. 2d 726, cert. den.
305 I .  S. 655 .........................................................16, 32

Mountain States Co. v. Comm., 299 U. S. 167 ............ 28

Xational Comics Publications v. Fawcett Publica­
tions, 2 Cir., 198 F. 2d 927 ................................... 16, 20

Xational Distillers Products Corp. v. City and County
of San Francisco, Cal., 297 P. 2d 61 22

Pacific Tel. Co. v. Kuykendall, 265 IT. S. 196 .............  28
Parrott & Co. v. City and County of San Francisco,

Cal., 280 P. 2d 881 .............................................. 23
Penagaricano v. Allen Corporation, 1 Cir., 267 F. 2d

550 .........................................................................  5,24
Pennsylvania v. Xelson, 350 U. S. 497 ........................ 18, 23



VI Index

PACTS

Pollitz v. Wabash R. Co., 180 F. 950 (C. C. S. D.
X. Y.) .................................................................... 16, 32

Rice v. Santa Fe Elevator Corp., 331 TJ. S. 218..........18, 23
Rosenblum v. Frankel, 279 App. Div. 66 (1st Dept.,

1951) ...................................................................... 5,26

Securities & Exchange Comm. v. Tung Corp., 32 F.
Supp. 371 (N. D. 111., 1940) .................................  30

Stratton v. St. Louis S.W. Rwy. Co., 282 TJ. S.
10 ...........................................   3,16,19,31

Two Guys From Harrison—Allentown, Inc. v. Mc-
Ginley, 3 Cir., 266 F. 2d 427 ............................6,17, 20

Vallely v. Northern Fire Ins. Co., 254 TJ. S. 348 ........16, 32

Yacht Club Catering v. Bruekman, Matter of, 276
N. Y. 44 ................................................................  27

S ta tu te s

28 U. S. C.:
§1254(1) ................................................................  3
§1291 ...............................................................4,7,17,19
§1292 ...............................................................4,7,17,19
§1331 ................................................4, 5, 7,13,18,19, 22
§1337 ................................................4, 5, 7,13,18,19, 22
§1341 ...................................................................... 28
§1342 ...................................................................... 28
§1651(a) ................................................................  3
§2106 ...............................................................6,7,17,21
§2281 ................................................................ 4,5,7,12
§2284 ................................................................ 4,5,7,12



Index

PAGE

Constitution of the United S ta tes................................ 9
Article I  §8 ...........................................................  7
Article I  §10 .........................................................  7, 22
Article VI ............................................................. 7
Export-Import Clause .......................................4, 5, 22
Foreign Commerce Clause ...................................  4, 5
Supremacy Clause ................................................  4, 5

New York Alcoholic Beverage Control Law .............  5, 26
§3(28) .................................................................... 11
§121 .................................................................. 6,8,9,27

Tariff Act of 1930,19 U. S. C. §1311................. 4, 5, 7,10, 23
§311 .................................................................. 10,18,23
19 C. F. R. part 18 ...........................................4, 5, 7, 23
19 C. F. R. part 19 ...........................................4, 5, 7, 23

Internal Revenue Code:
26 IT. S. C. §5521 ............................................ 4, 5, 7, 23
26 U. S. C. §5522 ............................................ 4, 5, 7, 23
26 U. S. C. §5523 .................................................. 7

New York State Tax Law:
§420(10) ................................................................  10
§424 ........................................................................ 10
§429 .......................................................................  10

vii



Supreme Court of the United States
October Term, 1960

No.

I dlew ild  B on  V oyage L iquor  Corporation , 

against
Petitioner,

T h o m a s  E. R o h a n , M a r t in  C. E p s t e in , W il l ia m  H. M organ , 
G r a n t  F. D a n ie l s  and S a m u e l  M. B ir n b a u m , being the Chair­
man, Members and Commissioners of the State Liquor Authority of 
the State of New York,

Respondents.

PETITION FOR A WRIT OF CERTIORARI FOR THE 
UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

Now

I dlew ild  B on V oyage L iquor  Corporation , 

against
Petitioner,

H onorable A lexa nder  B ic k s , H onorable E dward J . D im o c k , 
H onorable J o h n  M . Ca s h in , J udges of t h e  U n ited  S tates D is ­
tr ic t  C ourt e'or t h e  S o u t h er n  D istr ic t  of N ew  Y ork ,

Respondents.

MOTION FOR LEAVE TO FILE A PETITION FOR A 
WRIT OF MANDAMUS

The Applications
Petitioner, Idlewild Bon Voyage Liquor Corporation, 

(hereafter called “ Idlewild” ), seeks a writ of certiorari 
to review the decision of a divided United States Court



2

of Appeals for the Second Circuit, rendered April 14, 1961, 
which dismissed its appeals from decisions by Judge Bicks 
and Judge Dimock; and to review so much of the Injunction 
Order of the Circuit Court of Appeals, dated May 15, 
1961, as denied Idlewild’s motion to recall and clarify the 
judgment of that Court so as to conform to its decision.

Furthermore, Idlewild hereby moves for] leave to file a 
petition for a writ of mandamus directed to Honorable 
Alexander Bicks, Honorable Edward J. Dimock and Hon­
orable John M. Cashin, Judges of the United States Dis­
trict Court for the Southern District of New York, requir­
ing them to convene a district court of three judges and 
to grant Idlewild further appropriate relief.

These petitions for a writ of certiorari, and/or for 
a writ of mandamus, are presented together because they 
arise out of identical facts, but differing judicial views, 
on the important question of federal jurisdiction and 
procedure common to both petitions, namely: what is
the appropriate forum to determine the admittedly “ sub­
stantial” Federal constitutional and statutory rights of 
Idlewild, “ a party who we believe is entitled to relief” 
(110a) * according to the Court of Appeals, in the face 
of immediate irreparable injury threatened by the New 
York State Liquor Authority.

Idlewild’s complaint invoked its constitutional rights, 
its statutory rights, and such other relief as may be just 
and proper.

Reference to Opinions Below

Judge Bicks’ initial decision of November 4, 1960 (49a) 
is reported at 188 F. Supp. 434.

Judge Dimock’s subsequent opinion (88a) and order 
(93a) have not been officially reported.

* All such references are to the pages of Petitioner’s Appendix.



3

The majority and dissenting opinions of the Court of 
Appeals (103a, 111a) dismissing Idlewild’s appeals from 
the decisions of Judge Bicks and Judge Dimoek have not 
yet been officially reported. The judgment of the Court 
of Appeals is reprinted at 116a.

Judge Cashin’s subsequent decision and order (130a) 
have not been officially reported.

The Injunction Order of the Court of Appeals, denying, 
inter alia, Idlewild’s application for clarification of its 
judgment, is reprinted at 147a.

Jurisdictional Statement

The judgment of the Court of Appeals was entered on 
April alC 1961, and the Injunction Order of the Court of 
Appeals, denying Idlewild’s alternative application to re­
call and clarify its judgment, was entered on May 15, 1961.

The decisions of Judges Bicks, Dimoek and Cashin,—all 
denying Idlewild’s successive applications to convene a 
district court of three judges and for injunctive relief, 
were rendered on November 4, 1960, December 28, 1960 
and May 3, 1961, respectively.

The jurisdiction of this Court is invoked on certiorari 
under 28 U. S. C. §1254(1) because the decision of a 
divided Circuit Court of Appeals presents important ques­
tions of federal constitutional and statutory law and juris­
diction, and, in our view, is in conflict with applicable 
decisions of this Court and other U. S. Courts of Appeal— 
questions which should now be definitively settled by this 
Court (Buie 19).

The jurisdiction of this Court to issue a writ of man­
damus is invoked under 28 U. S. C. §1651 (a). The applica­
tion for mandamus is made pursuant to the holding of the 
majority of the Court of Appeals, on authority of Stratton 
v. St. Louis S.W. Rwy. Co., 282 U. S. 10, that Idlewild’s 
“ proper remedy was a writ of mandamus from the Su­



4

preme Court” (106a) to review the refusals of Judge Bieks 
and Judge Dimock to convene a three-judge district court 
for a determination of the ‘‘substantial federal question” 
here presented by “ a party who we believe is entitled to 
relief” (104a, 107a, 108a, 110a), and the subsequent holding 
by Judge Cashin that those refusals are “ the law of the 
case” and Idlewild’s remedy “ is a writ of mandamus” 
(135a).

The Questions Presented

(1) Should a district court of three judges he convened, 
pursuant to 28 U. S. C. §§2281 and 2284, where the un­
dented allegations of Idlewild’s complaint pose a “ sub­
stantial federal question” as to the legality of attempted 
State regulation of exports contrary both to (a) the For­
eign Commerce Clause, (h) the Export-Import Clause, and 
(c) the Supremacy Clause of the Constitution of the United 
States, and to the preemptive provisions of the Tariff Act 
of 1930, 19 U. S. C. §1311, together with the regulations 
thereunder (19 C. F. R. Parts 18 and 19) and associated 
provisions of the Federal Internal Revenue Code (26 
U. S. C. §§5521 and 5522)?

(2) Does the Circuit Court of Appeals have jurisdiction 
over final and otherwise appealable orders under 28 U. S. C. 
§§1291 and 1292(a)(1) where, as here, single district 
judges, having original jurisdiction under 28 U. S. C. 
§§1337 and 1331, have denied Idlewild’s applications for 
convening a thtee-judge district court, for enforcement 
of its statutory rights, and for injunctive relief against 
attempted regulation by the New York Liquor Authority 
of exports contrary to the uniform construction by the 
New York courts of the New York Alcoholic Beverage 
Control Law {Ex Parte Brans ford, 310 U. S. 354, 361) ?



5

(3) Should the Federal District Court abdicate its 
jurisdiction and deny Idle wild its statutory right (28 
U. S. C. §§2281, 2284, 1331 and 1337) of access to the Fed­
eral District Court to vindicate its substantial Federal 
rights under the Federal Constitution, statutes and admin­
istrative regulations, despite imminent irreparable injury, 
where, as here,

(a) Idlewild is engaged solely in the business of ex­
ports pursuant to an exclusive and preemptive Federal 
program adopted by Congress pursuant to the Foreign 
Commerce, Export-Import and Supremacy Clauses of the 
Constitution of the United States;

(b) The Federal Tariff Act of 1930, 19 IT. S. 0. §1311, 
together with the Regulations thereunder (19 C. F. R. 
Parts 18 and 19) and the associated provisions of the In­
ternal Revenue Code (26 U. S. G. §§5521 and 5522), con­
stitute a comprehensive, exclusive and preemptive Federal 
program for the promotion of exports of liquor in foreign 
commerce, and hence Idlewild is entitled to the relief it 
seeks even if, contrary to the uniform New York decisions, 
the Alcoholic Beverage Control Law should be held ap­
plicable here (Penagaricano v. Allen Corporation, 1 Cir., 
267 F. 2d 550', 557-558; All American Airways v. Village 
of Cedarhurst, 2 Cir., 201 F. 2d 273, 277);

(c) The New York Courts have uniformly held that 
the New York Alcoholic Beverage Control Law is inap­
plicable or “ inoperative” if applied to sales of liquor for 
export in foreign commerce under constant United States 
Customs Bond, regulation and supervision,—the very trans­
actions here involved. (Matter of Gulf Oil Corp. v. Mc- 
Goldrick, 256 App. Div. 207, 209, 210 (1st Dept,, 1939), 
aff’d 281 N. Y. 647, aff’d McGoldrich V. Gulf Oil Corp., 309 
U. S. 414; During v. Valente, 267 App. Div. 383, 386 (1st 
Dept., 1944); Rosenblum v. Frankel, 279 App. Div. 66, 68 
(1st Dept., 1951);



6

(d) The State Court remedies provided by the New 
York Alcoholic Beverage Control Law, §121, have already 
been judicially considered and held ‘ ‘ inadequate ’ ’ (Burack 
v. State Liquor Authority of the State of New York, 160 
F. Supp. 161,165 (E. D. N. Y., 1958) ?

(4) Where the Court of Appeals has dismissed appeals 
from orders otherwise appealable, on the ground that such 
orders were made without jurisdiction because only a dis­
trict court of three judges could determine the “ substan­
tial federal question” presented, should the Court of Ap­
peals vacate the orders under appeal and remand the case 
to the District Court for proceedings not inconsistent with 
its decision (28 U. S. C. §2106; Two Guys From Harri­
son-Allentown, Inc. v. McGinley, 3 Cir., 266 F. 2d 427, 433; 
Chicago, Duluth db Georgian Bay Transit Co. v. Nims, 6 
Cir., 252 F. 2d 317, 319; Board of Supervisors v. Tureaud, 
5 Cir., 207 F. 2d 807, 810, vacated and remanded on other1 
grounds, 347 U. S. 971.)?

(5) Are the judges of the Federal District Courts so 
bound by the doctrine of “ the law of the case” that they 
are required to follow a prior decision of another district 
judge of the same Court without regard either to a radical 
change in the circumstances presented to the first judge 
or a subsequent holding by the Circuit Court of Appeals 
that the decision of the first district judge was erroneous 
and without jurisdiction?



7

Constitutional and Statutory Provisions Involved

(1) Federal Constitutional Provisions

(a) “ The Congress shall have Power # * To regulate
Commerce with foreign Nations” (Art. I, §8).

(b) “ No State shall, without the Consent of the Con­
gress, lay any Imposts or Duties on Imports or Exports” 
(Art. I, §10)1

(c) “ This Constitution, and the laws of the United 
States which shall he made in Pursuance thereof * * * 
shall he the Supreme Law of the Land; and the Judges in 
every State shall be hound thereby, any Thing in the Con­
stitution or Laws of any State to the Contrary notwith­
standing” (Art. VI).

(2) Federal Statutes and Regulations

The Appendix sets forth the pertinent provisions of 
the Federal Statutes providing for (a) a district court of 
three judges in constitutional cases 28 U. S. C. §§2281 and 
2284 (1) and (3) (148a); (b) original jurisdiction of the 
federal district courts in federal question cases and cases 
arising under any Act of Congress regulating commerce, 
28 U. S. C. §§1331 and 1337 (149a); (c) appellate juris­
diction of the Circuit Court of Appeals over final orders 
and interlocutory orders of the district courts refusing 
injunctions, 28 U. S. C. §§1291 and 1292(a)(1) (149a);
(d) the powers of the federal appellate courts, 28 U. S. C. 
§2106 (150a); and (e) the pertinent substantive provi­
sions of the Federal Tariff Act of 1930, 19 U. S. C. §1311 
(17a), together with the applicable regulations thereunder, 
19 C. F. R. Parts 18 and 19 (154a), and associated pro­
visions of the Internal Revenue Code, 26 U. S. C. §§5521, 
5522, and 5523 (150a).



8

(3) New York State Statutory Provisions

The pertinent provisions of the New York Alcoholic 
Beverage Control Law are reprinted in the Appendix (30a- 
33a).

Statement of the Case

(1) The Importance of this Case

These petitions for certiorari and/or mandamus are 
Idlewild’s last resort in its long quest for a remedy for its 
admittedly “ substantial” Federal rights under the Consti­
tution and laws of the United States invoked in its com­
plaint.

Here are many questions of importance to the due 
administration of justice throughout the federal system, 
as evidenced by the bewildering^/ different views expressed 
in the five judicial opinions presented for review.

Such questions include (a) Idlewild’s statutory right 
of access to the federal district courts to protect its sub­
stantial constitutional and statutory federal rights against 
State interference where the federal rights are preemptive 
and exclusive, the State courts themselves have so held, 
and the State judicial remedies are inadequate; (b) the 
proper tribunal to determine such federal rights in the 
first instance; (c) the appellate jurisdiction of the Circuit 
Courts of Appeals and of this Court in such cases; and
(d) the proper application of the “ law of the case” by 
the federal district courts.

The decisions below have left the proverbial “ little 
fellow” helplessly caught in the gears of the cumbersome 
machinery of justice amid a welter of contradictory deci­
sions possessing but one common denominator,—a refusal 
to afford a remedy for Idlewild’s substantial Federal 
rights in a situation where the Court of Appeals has de­



9

scribed the plaintiff Idlewild as ‘ ‘ a party who we believe is 
entitled to relief.”

This case, we submit, cries out for review by this Court 
to the end that others may not become inextricably en­
meshed in a similar procedural web, after four decisions 
and five different opinions, and with a hearing on the merits 
not yet in sight a year after this urgent case was com­
menced and large expense has been necessitated.

(2) The Nature of the Case

This action is for declaratory and injunctive relief and 
for an adjudication that the Constitution and laws of the 
United States preclude the application of the New York 
State Alcoholic Beverage Control Law to Idlewild’s export 
business and the destruction thereof by the New York 
Liquor Authority.

As Judge Dimock noted (9$a):
“ Plaintiff certainly raises a serious legal issue when 

it states that what New York is regarding as unlawful 
has been ruled by the United States to be lawful for­
eign commerce.”

The Court of Appeals thrice held that “ a substantial 
federal question” is thus presented (104a, 107a, 108a).

(3) Idlewild’s Lawful Export Business

Idlewild, a New York corporation, is engaged in selling 
United States Customs bonded, tax-free wines and liquors, 
solely for export, to overseas passengers from premises 
leased from the New York Port Authority, a bi-State 
agency, at Idlewild Airport (49a-50a, 90a, 130a-131a).

Each bottle of liquor sold by Idlewild remains under 
continuous United States Customs bond, regulation and 
supervision from the time it is withdrawn from Class 6



10

United States Government bonded manufacturing ware­
houses, and the United States Customs bonded storage 
warehouses; during the time it is rewarehoused at Idle- 
wild’s premises under United States Customs control, until 
the bottle is placed aboard the aircraft for delivery to the 
passenger only upon and after arrival at his foreign desti­
nation (3a-5a, 36a). Idlewild is required to account, on 
United States Customs forms, for each and every bottle 
(3a, 36a).

The privilege accorded the outgoing passenger to ex­
port liquor free of tax and duty here or abroad is reciprocal 
to the privilege accorded incoming passengers to purchase 
a limited quantity of liquor in foreign countries for im­
port into the United States free of tax or duty here or 
abroad (5a-6a, 37a).

The obvious purposes of the right of thus exporting a 
bottle of liquor tax-free are (1) to encourage foreign com­
merce, and (2) to promote domestic exports,—a particu­
larly pressing national interest in view of the present 
crisis in our balance of payments.

The United States Treasury Department, Bureau of 
Customs, supervises the conduct of Idlewild’s business. 
It has approved Idlewild’s premises, and has prescribed 
Idlewild’s procedures. Finally, the United States Treasury 
Department, Bureau of Customs has expressly ruled that 
Idlewild’s business constitutes the exportation of mer­
chandise within the meaning of §311 of the Tariff Act of 
1930, 19 U. S. C. §1311 (50a, 131a, 15a-20a).

The New York State Tax Commission has also ruled 
that a business such as Idlewild’s, which consists of sales 
of liquor in United State Customs bond withdrawn from 
Class 6 warehouses under federal regulation, is not a 
“ sale” subject to the New York State Alcoholic Beverage 
tax. Tax Law §§420(10), 424, 429 (26a-27a).



11

(4) The State Liquor Authority’s Assertion that Idlewild’s 
Business is “Illegal” under New York Law

Out of an abundance of caution, Idlewild inquired of 
the State Liquor Authority whether its business was sub­
ject to the New York State Alcoholic Beverage Control 
Law. The State Liquor Authority sought and obtained an 
opinion from the New York State Attorney-General (1960, 
Op. Atty. Gen., June 30) to the effect that (1) Idlewild’s 
business constituted a “ sale” within the meaning of the 
Alcoholic Beverage Control Law, §3(28), but (2) there is 
no provision of that Law which would authorize a license 
for such sales for export, and (3) no person can sell 
alcoholic beverages within New York without a license 
(51a, 90a, 131a, 21a-24a).

Thereupon the State Liquor Authority determined, and 
so advised Idlewild’s counsel (25a), that its business

<<# * * is in conflict with the laws of the State of New 
York and, therefore, would be illegal.”

(5) The Institution of this Action to 
Protect Idlewild’s Federal Rights

The immediate practical effect of this “ determination” 
was to place Idlewild in dire jeopardy. As Judge Bicks 
found (51a, 188 F. Supp. at p. 436):

“ The New York Importers & Distillers Association 
circularized its members advising that in view of the 
position of the Attorney General and of §62 of the 
Alcoholic Beverage Control Law, they could not legally 
fill plaintiff’s orders. Plaintiff has not since been 
able to make purchases to meet its requirements and 
faces the prospect of closing its doors, with conse­
quent substantial damage.”



12

This action was accordingly instituted on July 22, 1960, 
for the protection of Idlewild’s constitutional and statu­
tory rights; and a motion for the impanelling of a three- 
judge court pursuant to 28 U. S. C. §§2281 and 2284 ( 32a) 
and an application, by order to show cause, for a temporary 
injunction (33a-34a) were filed and served simultaneously 
with the complaint.

(6) The Representations of the State 
Liquor Authority Before Judge 
Bicks that Idlewild’s Business was 
not Threatened

Confronted with the square conflict between their claim 
of illegality under State Law and Idlewild’s federal rights, 
the State Liquor Authority sought to delay an adjudica­
tion. It appeared before Judge Bicks by the Attorney- 
General of the State of New York and cross-moved to dis­
miss the complaint on the ground that the state courts af­
forded an “ efficient remedy” and that (42a, 75a):

“ The complaint makes no claim that the State 
Liquor Authority is threatening, directly or indirectly, 
to take steps to interfere with plaintiff’s operations. 
Since the plaintiff is a non-licensee, there is no real 
action the State Liquor Authority can take against 
the plaintiff. ’ ’

(7) Judge Bicks’ Decision Remitting 
Idlewild to the State Courts

Because of what he deemed to be the “ tentative and 
hypothetical posture” of the case before him (53a), Judge 
Bicks decided (55a, 188 F. Supp. 437-8):

“ Although the substantive issues raised in the com­
plaint may not be considered by the judge to whom 
application under 28 U. S. C. A. §2281 is made, he has



13

the power to retain jurisdiction pending state court 
adjudication where, as here, there is insufficient basis 
to support intervention by a federal court of equity. 
(Citing cases)

“ Motion for impanelling of a three-judge court 
denied, with leave to renew after the state court has 
ruled.”

Judge Bicks’ decision disregarded Idlewild’s statutory 
right to the exercise by him of original jurisdiction under 
28 U. S. C. §§1337 and 1331.

(8) Idlewild’s Appeal and the Immediate Extra-legal 
Retaliation by the State Liquor Authority

Idlewild promptly appealed Judge Bicks’ decision 
(56a).

Five days later, the State Liquor Authority issued a 
subpoena duces tecum directed to Idlewild. Notwithstand­
ing its representations before Judge Bicks that “ since 
the plaintiff is a non-licensee, there is no real action the 
State Liquor Authority can take against the plaintiff” 
(64a, 67a, 75a), the subpoena expressly required Idlewild to 
appear and testify concerning its business “under the li­
cense to sell alcoholic beverages issued by the State Liquoi 
Authority” (69a).*

Thus, the State Liquor Authority, acting under color 
of State law, reversed its field and. went back on its rep­
resentation to Judge Bicks that “ there is no real action” 
or ‘ ‘ steps to interfere ’ ’ which it could take against Idlewild. 
Instead, it sought to cut in ahead of the Court of Appeals 
and to hale Idlewild before itself for an inquisition as prose­
cutor, judge and jury to pass upon its own assault upon 
Idlewild’s Federal rights.

No more overt interference could there be than the 
bald threats thereafter made on three occasions by officials 
of the State Liquor Authority to the several United States

* Emphasis has been supplied throughout this petition.



14

Customs bonded interstate truckers who had been making 
deliveries to Idlewild (76a, 78a-81a). This was a palpable 
attempt, vi et armis, to frustrate Idlewild’s resort to the 
federal courts by choking off its last lifeline of supply 
from out-of-state sources to which Idlewild had been driven 
because the State Liquor Authority’s prior determination 
of illegality had frightened off its New York suppliers 
(51a, 131a).

(9) Judge Dimock’s Decision

Accordingly, Idlewild again moved for a temporary in­
junction pendente lite and for the impanelling of a three- 
judge court (71a-72a). This motion, together with Idle- 
wild’s application to quash the subpoena duces tecum, 
came on before Judge Dimock, who held that he had to 
follow Judge Bicks (89a), but that (91a):

“ Plaintiff is entitled to an injunction against har­
assment by defendant pending the appeal from the 
order of Judge Bicks.”

(10) The Court of Appeals’ Decision

A majority of the Court of Appeals, Chief Judge 
Lumbard dissenting, held that since “ a substantial federal 
question existed” (104a, 107a, 108a), “ a three-judge dis­
trict court should have been convened” by Judge Bicks 
and Judge Dimock to decide, inter alia, whether to apply 
the so-called doctrine of “ abstention” (109a, 110a). Ac­
cordingly, although the orders of both judges were held to 
be otherwise appealable (105a-106a, 109a, 111a), the ma­
jority held that since Judge Bicks and Judge Dimock “ had 
no jurisdiction to proceed * * * we must conclude from 
Stratton that we have no jurisdiction to entertain an 
appeal” from either decision (108a, 110a).

The majority conceded “ this result leaves us in a 
somewhat anomalous position” (108a), and concluded 
(110a) :



15

“ The results we reach are unhappy ones. We are 
refusing access to our court to a party who we believe 
is entitled to relief.”

Idlewild’s statutory right to the exercise of original 
jurisdiction by the District Court with a single judge under 
28 U. S. C. §§1337 and 1331 was at least impliedly overruled.

In his dissenting opinion Chief Judge Lumbard took is­
sue, saying (114a-115a):

“ The majority’s view, however, imposes on the fed­
eral courts a procedure of piecemeal review whereby 
a court of appeals is always forced to stay its hand 
whenever an appellant or appellee argues to it that 
the decision below should have been made by a three- 
judge court. No matter how worthless such a claim 
may be, we would not be able to dispose of it on an 
appeal from a final order but would have to await a 
decision on a petition for mandamus in the Supreme 
Court. Only after the Supreme Court decided the 
jurisdictional question might we be permitted to con­
sider the merits, and the merits would not be ripe for 
Supreme Court review until we had passed upon them 
on remand. II cannot believe that the authority of the 
Supreme Court over three-judge tribunals was in­
tended to extend so far as to preclude us from decid­
ing the jurisdictional issue when a district judge enters 
an order that is otherwise appealable under 28 U. S. C. 
§§1291, 1292, and thereby to impose on the parties a 
procedure calling for separate appellate consideration 
of the jurisdictional and substantive questions.”

Thus, the sure result of the majority decision of the 
Court of Appeals will be to flood this Court with petitions 
for mandamus whenever, in a case where Federal constitu­
tional rights are involved the district court applies the so- 
called doctrine of abstention or claim has been unsuccess­
fully made for decision by a three-judge court.



16

(11) Judge Cashin’s Decision

Idlewild promptly sought to comply with the decision 
of the Court of Appeals and moved again in the District 
Court to convene a three-judge district court and for in­
junctive relief, in accordance with the procedure suggested 
by this Court in Stratton v. St. Louis S. IF. Ry. Co., 282 
U. ,S. 10, 18, and by Mr. Justice Stewart in Chicago, Duluth 
(& Georgian Bay Transit Co. v. Nims, 6 Cir., 252 F. 2d 317, 
319.

Judge Cashin denied these applications. He character­
ized as “ dictum” the holding by the Court of Appeals 
that “ a three-judge district court should have been con­
vened” (132a); and, overlooking the very ratio decidendi 
of that Court, he followed as “ the law of this case” and 
“ as still in full force and effect” (133a) the very refusals 
by Judge Bicks and Judge Dimock to convene a three- 
judge district court which the Court of Appeals had just 
held to be erroneous, without jurisdiction and hence nul­
lities. Vallely v. Northern Fire Ins. Co., 254 U. S. 348, 
353-4; McQuillen v. Dillon, 2 Cir., 98 F. 2d 726, 729, cert, 
den. 305 U. S. 655; Pollitz v. Wabash R. Co., 180 F. 950, 
951 (C. C. S. D. N. Y.).

(12) The Court of Appeals’ Refusal to Recall 
and Clarify Its Judgment

In a final effort to avoid burdening this Court, counsel 
and the litigants with the expenditure of time, money and 
effort entailed by these conflicting judicial expressions, 
Idlewild moved in the Court of Appeals for an order clari­
fying its judgment of dismissal (as authorized by National 
Comics Publications v. Fawcett Publications, 2 Cir., 198 F. 
2d 927 and Epstein v. Goldstein, 2 Cir., 110 F. 2d 747, 748) 
so as to test Judge Cashin’s characterization as “ dictum,” 
and to remand this case to the District Court for “ such 
further proceedings * * * as may be just under the cir­



17

cumstances,” as authorized by 28 IT. S. C. §2106 and as 
was done under similar circumstances in Two Guys From 
Harrison-Allentown, Inc. v. McGinley, 3 Cir., 266 F. 2d 
427, 433, and Board of Supervisors v. Tureaud, 5 Cir., 207 
F. 2d 807, 810, vacated and remanded on other grounds in 
347 U. S. 971.

The Court of Appeals’ denial was without opinion 
(147a).

ARGUMENT 

P O I N T  I

Idlewild’s petition for certiorari to review the ad­
mittedly “anomalous” majority decision of the Cir­
cuit Court of Appeals presents important questions 
of federal constitutional and statutory law and of 
judicial jurisdiction which should be settled b y  this 
Court.

(1) The majority in the Court of Appeals held that 
since “ a substantial federal question exists” (104a, 107a) 
in this case,

“ * # * we are of the opinion that the determination 
of whether a federal court ought to abstain is a deter­
mination that may only be made in the first instance by 
a three-judge district court” (108a).

(2) All three judges in the Court of Appeals agreed 
that “ the orders made by Judges Bieks and Dimock are of 
the sort which are ordinarily appealable” to that Court 
under 28 U. S. C. §§1291 and 1292(a)(1) (105a-106a, 109a, 
I lia ) .

The majority, however, reached the frankly “anomalous 
position” (108a) of distinguishing the recent decision of 
the Second Circuit in Bell v. Waterfront Commission of



18

New York Harbor, 2 Cir., 279 F. 2d 853 (107a, 109a), and 
of dismissing Idle wild’s appeals, on the very grounds that 
Idlewild was right in its contentions that “ a substantial 
federal question existed” on constitutional grounds and 
that “ a three-judge district court should have been con­
vened” by Judge Bieks and Judge Dimock (109a).

(3) Also, 'Idlewild’s complaint challenges, in addition, 
the regulatory power of the State Liquor Authority on 
Federal statutory grounds (irrespective of constitutional 
issues) of which a single federal district judge clearly has 
original federal jurisdiction under 28 IT. S. C. §§1331, 1337. 
(Ex Parte Bransford, 310 U. S. 354, 361.)

Thus, Idlewild contends that Section 311 of the Federal 
Tariff Act of 1930, 19 U. S. C. §1311, and the detailed 
federal regulation and supervision of the exports here in­
volved are preemptive, and “ the scheme of federal regula­
tion [is] so pervasive as to make reasonable the inference 
that Congress left no room for the States to supplement 
i t” . Pennsylvania v. Nelson, 350 U. S. 497, 502; Rice v. 
Santa Fe Elevator Corp., 331 U. S. 218, 230.

The effect of the decision of the Court of Appeals was 
also to nullify this statutory right to original jurisdiction.

(4) Idlewild further contends, inter alia, that the State 
Liquor Authority is attempting here to misapply the New 
York Alcoholic Beverage Law to exports in foreign com­
merce, contrary to the uniform rulings of the New York 
courts themselves and contrary to Idlewild’s Federal statu­
tory rights.

“ In such a case the attack is aimed at an allegedly 
erroneous administrative action” which “ does not require 
a three-judge court”  even though based on “ the uneonsti- 
tutionality of the result obtained” . (Ex Parte Bransford, 
310 U. S. 354, 361.)



19

(5) Here the majority in the Court, of Appeals held 
that the mere presence of substantial Federal Constitu­
tional questions as to state action (a) deprived a single 
district judge, otherwise vested with original federal juris­
diction on non-constitutional grounds under 28 U. S. C. 
§§1331 and 1337, of all jurisdiction to decide the issues, and 
(b) deprived the Court of Appeals of jurisdiction to review 
such decisions, although they are “ ordinarily appealable” 
(105a-106a, 109a, 111a) under 28 II. S. C. §§1291, 1292(a) 
(1).

P O I N T  II

This petition for certiorari also presents for re­
view  the failure and refusal by the Court o f Appeals 
to vacate the orders below which it itself held were 
rendered without jurisdiction,— a refusal in conflict 
with decisions ©f the Courts of Appeals for the Third, 
Fifth and Sixth Circuits and in conflict with the im­
plications of decisions by the Supreme Court.

(1) Stratton v. St. Louis S.W. Rwy. Co., 282 U. S. 10, 
was the decision principally invoked by the majority of 
the Court of Appeals for its holding that Idlewild’s “ prop­
er remedy was a writ of mandamus from, the Supreme 
Court.” But in the Stratton case, this Court held (282 
U. S. at p. 18) that although a writ of mandamus was still 
available:

“ It is not necessary, however, that formal applica­
tion should he made for such a writ, as the District 
Court may now proceed to take the action which the 
writ, if issued, would require.”

In keeping with this recommendation by this Court, 
Idlewild thereupon attempted to comply with the majority 
decision of the Court of Appeals by renewing its appli­



20

cation to the District Court for the impanelling of a
three-judge court and for injunctive relief (117a). This 
was the procedure proposed by Judge (now Mr. Justice) 
Stewart in Chicago, Duluth & Georgian Bay Transit Co. 
v. Nims, 6 Cir., 252 F. 2d 317, 319:

“ Were we to agree with the appellant’s position 
that a court of three judges should have been con­
vened, it would be our duty now to dismiss the appeal 
for want of jurisdiction. An application to the Su­
preme Court for a ivrit of mandamus ivould then be 
available if the district judge declined to tahe steps 
to effectuate the convening of a three judge tribunal.” 
(Emphasis added.)

But when Judge Cashin characterized as “ dictum” the 
majority decision of the Court of Appeals that the orders 
of Judges Bicks and Dimock were without jurisdiction, 
Idlewild applied to that Court for rectification or clarifica­
tion of its mandate (as was done in National Comics Publi­
cations v. Fawcett Publications, 2 Cir., 198 F. 2d 927 and 
Epstein v. Goldstein, 2 Cir., 110 F. 2d 747, 748) so as to 
make explicit what the majority decided:—that the orders 
of Judge Bicks and Judge Dimock were nullities since with­
out jurisdiction, were in consequence vacated, and the case 
was remanded to the District Court for further proceedings 
not inconsistent with the decision of the Court of Appeals 
(146a).

Such was the procedure adopted under identical cir­
cumstances by the Third Circuit in Two Guys From Harri- 
son-Allentown, Inc. v. McGinley, 3 Cir., 266 F. 2d 427 where 
the Court held that a three-judge district court was re­
quired and concluded (p. 433):

“ Consequently we will vacate the judgment of the court 
below and will remand the cause for appropriate ac­
tion.”



21

Again, in Board of Supervisors v. Tureaud, 5 Cir., 207 
F. 2d 807, vacated and remanded on other grounds, 347 
U. S. 971, the Court concluded (p. 810):

“ We are in no doubt that the suit from which this 
appeal comes was one for three judges, that the dis­
trict judge was without jurisdiction to hear and de­
termine the application for injunction, and that the 
order should be vacated and the cause remanded to 
the district judge with directions to take further pro­
ceedings not inconsistent herewith.” (Emphasis 
added.)

Such a procedure, in our view, is squarely authorized 
by 28 U. S. C. §2106, which confers upon the federal ap­
pellate courts jurisdiction to review and to:

“ * * # remand the cause and direct the entry of such 
appropriate judgment, decree or order, or require such 
further proceedings to be had as may be just under 
the circumstances.”

We respectfully submit that by refusing to clarify its 
judgment, the Court of Appeals “ has so far departed from 
the accepted and usual course of judicial proceedings, or 
so far sanctioned such a departure by a lower court, as to 
call for an exercise of this court’s power of supervision” . 
(This Court’s Buie 19(1)(b).)



22

Also a writ of mandamus is a further proper 
means of requiring Judge Bicks and Judge Dimock 
to convene a three-judge court for determining Idle- 
wild’s constitutional rights, or, failing that, to exer­
cise for the protection of the plaintiff’s statutory 
rights original jurisdiction under 28 U. S. C., Sections 
1337 and 1331.

(1) These Sections expressly confer upon the District 
Courts “ original jurisdiction of any civil action or pro­
ceeding arising under any Act of Congress regulating com­
merce,” or (when the controversy exceeds $10,000 in value) 
“ under the Constitution, laws or treaties of the United 
States” . (See Complaint, la  et seq.)

(2) “Where the issue is essentially federal, the federal 
court proceeds at o n c e ( A l l  American Airways v. Village 
of Cedarhurst, 2 Cir., 201 F. 2d 273, 277.) IdlewiM’s 
federal rights arise not only under the Constitution hut 
also under a comprehensive and preemptive federal statu­
tory and regulatory scheme and program in the national 
interest for the promotion of exports of domestic liquor 
in foreign commerce free of Federal or State tax.

This federal scheme was adopted by Congress in the 
exercise of its “ exclusive and plenary” constitutional 
power to “ regulate commerce with foreign Nations” (Art. 
I, §8, par. 3),—a power which “ may not be limited, quali­
fied or impeded to any extent by state action” . Board of 
Trustees v. U. 8., 289: U. S. 48, 56-57; National DistUlers 
Products Corp. v. City and County of Can Francisco, Cal., 
297 P. 2d 61, 65. The “ exclusive and plenary” Federal 
power is “ buttressed by” the Import-Export Clause (Art. 
I, §10, par. 2), Board of Trustees v. U. 8., supra, 289 IT. S. 
at pp. 56-57; Parrott & Co. v. City and County of San Fran­

P O I N T  I I I



23

cisco, Cal., 280 P, 2d 881, 885, and by “ the supremacy of 
the national power in the general field of foreign affairs” , 
Sines V. Davidowitz, 312 U. S. 52, 62.

This preemptive Federal program for commerce with 
foreign countries is, as stated at the outset hereof, em­
bodied in Section 311 of the Tariff Act of 1930, 19 IT. S. C. 
§1311 and the associated provisions of the Internal Revenue 
Code, 26 IT. S. 0. §§5521 and 5522; and it also involves a 
reciprocal pro tanto tax immunity as regards foreign coun­
tries. It is also implemented by detailed regulations and 
actual supervision and control by the United States Treas­
ury Department, Bureau of Customs under the Tariff Act 
(19 C. F. R. Parts 18 and 19).

Accordingly, particularly in view of the current crisis 
in our balance of payments, we are dealing here with a 
national concern ‘ ‘ so dominant that the federal system will 
be assumed to preclude enforcement of state laws on the 
same subject” . Rice v. Santa Fe Elevator Corp., 331 U. S. 
218, 230; Pennsylvania v. Nelson, 350 U. 8. 497, 504; Sines 
v. Davidowitz, supra, 312 U. S. 52, 62-69.

Moreover, “ the scheme of federal regulation [is] so 
pervasive as to make reasonable the inference that Congress 
left no room for the States to supplement i t” . Pennsyl­
vania v. Nelson, supra, 350 U. S. at p. 502; Rice v. Santa 
Fe Elevator Corp., supra, 331 U. S. 218, 230.

Accordingly, we submit, since the exported liquor here 
involved is in a Federal enclave and under Federal sov­
ereignty, the Federal courts may not abandon their statu­
tory jurisdiction and obligation in exaggerated defer­
ence to “ comity” . Johnson v. Yellow Cab Co., 321 U. S. 
383, 386, 391-2; Collins v. Yosemite Park Co., 304 IT. 8. 518, 
536-538 ; Maynard & Child, Inc. v. Shearer, Ky., 290 8. W. 
2d 790, 794.

Both the specific terms of the Constitution and the fed­
erated structure of our Government forbid New York and 
its agencies to trespass upon legislation and regulation by 
Congress acting in its own domain.



24

If the Alcoholic Beverage Control Law is inapplicable, 
Idlewild will be entitled to an injunction against its at­
tempted enforcement here. If, on the other hand, the New 
York Law is applicable in its terms, then “ it wonld conflict 
with federal law and the ban of the supremacy clause 
would come into play.” Penagaricano v. Allen Corpora­
tion, 1 C'ir., 267 F. 2d 550, 558. For this reason, the Court 
upheld the exercise of jurisdiction in the Penagaricano case, 
supra, stating (267 F. 2d at pp. 557-558):

“ * * * a preliminary glance at the apparent clash be­
tween federal and local authority reveals that * * * the 
exercise of federal authority here involved is wholly 
within the confine of a valid federal enactment * * *. 
And, whatever the local courts may hold to be the 
meaning of the local Act, the plaintiffs will be entitled 
to relief from its application. That is to say, the 
plaintiffs will he entitled to the relief they request 
ivhichever way the local Act is construed.” (Empha­
sis added.)

Thus, even if the terms of the Alcoholic Beverage Con­
trol Law should be construed to be applicable here, contrary 
to the uniform decisions of the New York Courts (p. 26, 
infra), “ there can be no doubt” of the “ direct clash” of 
the New York Statute “ with the federal regulations” and 
hence “ no occasion for postponement here for possible state 
action.” All American Airways v. Village of Cedarhurst, 
2 Cir., 201 F. 2d 273, 277; Chicago v. Atchison Topeka & 
Santa Fe R. Co., 357 U. S. 77, 84, 89; California Com,mis­
sion v. United States, 355 U. S. 534, 538, 539.

(3) The assertion of the State Liquor Authority that 
under New York Law the plaintiff’s business was. “ il­
legal” (25a) created an issue and was sufficient in itself to 
deter the plaintiff’s domestic suppliers (51a, 131a). Hence 
Judge Bicks was mistaken in regarding the issue as



25

in a merely “ tentative and hypothetical posture” (53a, 188 
F. Supp. at p. 436).

In Florida Lime Groivers v. Jacobsen, 362 U. S. 73, this 
Court reversed a three-judge District Court which had dis­
missed a declaratory-judgment complaint on the ground 
that there was no “ existing dispute as to. present legal 
rights” hut only “ a mere prospect of interference posed 
by the bare existence of the law in question” (362 U. S. 
at p. 85). This Court, in language applicable a fortiori 
here, said (362 U. S. at pp. 85^86):

“ It is therefore evident that there is an existing dis­
pute between the parties, as to present legal rights 
amounting to a justiciable controversy which appel­
lants are entitled to have determined on the merits.”

(4) Furthermore, Judge Bicks was not justified in 
abdicating his statutory jurisdiction, for such abdication 
is justified only in extraordinary circumstances, wholly 
absent here. As this Court held in Alleghany County v. 
Mashuda Co., 360 U. S. 185, 188-189:

“ The doctrine of abstention, under which a Dis­
trict Court may decline to- exercise or postpone the 
exercise of its jurisdiction, is an extraordinary and 
narrow exception to the duty of a District Court to 
adjudicate a controversy properly before it. Abdica­
tion of the obligation to. decide cases can be justified 
under this doctrine only in the exceptional circum­
stances where the order to the parties to repair to 
the state court would clearly serve an important 
countervailing interest. ’ ’



26

Furthermore, there was also no occasion to ab­
stain in deference to the New York courts because 
those courts have settled the State Law in Idlewild’s 
favor, and also because the state remedies are in­
adequate.

(1) In Hillsborough v. Cromwell, 326 U. S. 620, 629, 
this Court held that there was no occasion for “ remitting 
the claimant to the state courts for determination of the 
local law question” where1, as here, the State courts have 
given “ an authoritative interpretation of the local law.”

The New York courts have recognized the “ exclusive 
and plenary” power of Congress to regulate foreign com­
merce; “ the careful control exercised by government of­
ficials over goods that have been taken into Class 6 Ware­
houses” ; and the fact that such goods are “ constantly 
under government supervision” pursuant to Section 311 
of the Tariff Act of 1930,—the very Federal statute in­
voked by Idlewild here under like circumstances (Matter 
of Gulf Oil v. McGoldrich, 256 App. Div. 207, 209, 210 
(1st Dept,, 1939), aff’d 281 N. Y. 647, aff’d McGoldrich v. 
Gulf Oil Corp., 309 U. S. 414).

Accordingly, the New York courts have held that the 
New York Alcoholic Beverage Control Law,—the very 
statute which the State Liquor Authority here invokes, 
was not applicable, or was “ inoperative” if applied, to 
sales of liquor under United States Customs bond, regu­
lation and supervision, for export in foreign commerce,-— 
the very transactions here involved. (During v. Valente, 
267 App, Div. 383, 386 (1st Dept., 1944). The New York 
courts have therefore held that “ international transac­
tions in alcoholic beverages * * * would be: beyond the 
regulatory powers of the State Liquor Authority.” 
(Rosenhlum v. Franhel, 279 App. Div. 66, 68 (1st Dept,, 
1951)).

P O I N T  I V



27

(2) Furthermore, “ abstention” is improper where, as 
here, the state remedies are, as here, inadequate.

In the first place, as this Court held in California 
Commission v. United States, 355 IT. S. 534, abstention is 
improper where, as here, “ The Commission has plainly 
indicated an intent to enforce the Act” (355 U. S. at p. 
538), and the “ issue is a constitutional one that the Com­
mission can hardly be expected to entertain” (355 U. S. at 
p. 539). This Court concluded (p. 539):

“ But where the only question is whether it is consti­
tutional to fasten the administrative procedure onto 
the litigant, the administrative agency may be defied 
and judicial relief sought as the only effective way of 
protecting the asserted constitutional right.”

In the second place, Alcoholic Beverage Control Law 
§121, on which the State Liquor Authority relied before 
Judge Bicks (64a-65a), provides the sole method for judi­
cial review of determinations of the State Liquor Author­
ity, but limits any stay by the New York courts in such a 
proceeding “ for a period not exceeding thirty days” . 
Matter of Yacht Club Catering v. Bruck-man, 276 N. Y. 44 
holds that this period is mandatory, regardless of “ ir­
reparable damage to the individual” (276 N. Y. at p. 48). 
In accord: Barcus v. O’Connell, 281 App. Div. 1064 (3rd 
Dept., 1953).

For this reason, the State “ remedy” afforded by Sec­
tion 121 is utterly “ inadequate” , Burack v. State Liquor 
Authority of the State of New York, 160 F. Supp. 161 
(E. D. N. Y., 1958), where the Court held (p. 165):

“ A further reason for) my conclusion is the pro­
vision in §121, supra, that no stay shall be granted 
pending the determination of the matter for a period 
of more than thirty days. That period may not be ex­
tended. Barcus v. O’Con/nell, 281 App. Div. 1064, 121 
N. Y. S. 2d 366. Because of that 30-day provision 
the time still available for the filing and final determi­



28

nation of state court proceedings is inadequate. Even 
if the plaintiff should be successful in such a proceed­
ing he would win hut a Pyrrhic victory. ’ ’

In Pacific Tel. Co. v. Kuykendall, 265 U. S. 196, this 
Court noted that the State law permitted a stay against 
a decision of a State administrative tribunal for only a 
limited period (there, one year). This Court reversed the 
decision of the district court refusing jurisdiction, and 
held (pp. 204-205):

“ Under such circumstances comity yields to con­
stitutional right, and the fact that the procedure on 
appeal in the legislative fixing of rates has not been 
concluded will not prevent a federal court of equity 
from suspending the daily confiscation, if it finds the 
case to justify it.” (Emphasis added.)

Even under the statutes forbidding the district courts 
to exercise jurisdiction over a challenge to State taxes or 
rate orders, this Court has uniformly held that the district 
court should exercise jurisdiction unless it affirmatively 
appears that “ a plain, speedy and efficient remedy may 
be had in the courts of such State.” 28 TJ. S. C. §§1341, 
1342. Corporation Comm. v. Cary, 296 IJ. S. 452, 458; 
Mountain States Co. v. Comm., 299 U. S. 167, 170; Driscoll 
v. Edison Co., 307 U. S. 104, 110; Hillsborough v. Crom­
well, supra, 326 U. S. 620, 628.



29

A  writ of mandamus to review the decision of 
Judge Dimock, as well as the decision of Judge Bicks, 
is likewise proper here.

(1) Judge Dimock acknowledged (91a):
“ Plaintiff certainly raises a serious legal issue 

when it states that what New York is regarding as un­
lawful has been ruled by the United States to be law­
ful foreign commerce.”

Judge Dimock further recognized that after Judge 
Bicks’ decision and Xdlewild’s ensuing appeal, the State 
Liquor Authority was attempting to drive Idlewild out of 
business forthwith: first under color of State law, then by 
its subpoena duces tecum, and then by overt threats to the 
interstate truckers who were Idlewild’s last lifeline of 
supply. Accordingly, he granted a stay pending the ap­
peal from Judge Bicks (91a, 93a-95a).

In our view, the error in Judge Dimock’s decision was 
in his narrow application of the doctrine of the “ law of 
the case” by mechanically following Judge Bicks, despite 
the State Liquor Authority’s subsequent repudiation of 
its aforesaid representations to Judge Bicks and despite 
the fact that under these changed circumstances “ there is 
no imperative duty to follow the earlier ruling.” Dic­
tograph Products Co. v. Sonotone Corp., 2 Cir., 230 F. 2d 
131, 135', dism. per stipulation 352 U. S. 883.

(2) We also respectfully submit that, for the following 
reasons, Judge Dimoek further erred in denying Idlewild’s 
application to quash the subpoena duces tecum issued by 
the State Liquor Authority.

P O I N T  V



30

(a) The subpoena was an overt effort by the State 
Liquor Authority to constitute itself as the tribunal to 
pass upon its own assault on Idlewild’s Federal rights 
and upon constitutional issues which the State Liquor Au­
thority “ can hardly be expected to entertain.” California 
Commission v. United States, supra, 355 U. S. at p. 530.

(b) Since the State Liquor Authority has no power 
to regulate or license Idlewild’s export business, Collins v. 
Tosemite Park Co., 304 U. S. 518, 539, its subpoena power 
is correspondingly confined to matters within its jurisdic­
tion to regulate or license. Gen. Tobacco £  Grocery Co. v. 
Fleming, 6 Cir., 125 F. 2d 596; Federal Trade Comm. v. 
Smith, 34 F. 2d 323 (S. D. N. Y., 1929); Securities £  Ex­
change Comm. v. Tung Corp., 32 F. Supp. 371, 373 (N. D. 
111., 1940).

(c) The subpoena was invalid under New York law since 
Civil Practice Act §406(1) expressly precludes adminis­
trative subpoenas relating to “ a matter arising, or an act 
to be done, in an action in a court of record” ; and this 
“ matter” was then actively sub judice.

(d) Judge Dimock’s denial of his power to quash the 
subpoena was directly contrary to his own decision in Bell 
v. Waterfront Comm, of N. Y. Harbor, 183 F. Supp. 175, 
177, aff’d 2 Cir., 279 F. 2d 853, 858-9. See also Albee God­
frey Whale Creek Co. v. Perkins, 6 F. Supp. 409', 410 
(S. D. N. Y., 1933).



31

Judge Cashin’s decision constitutes such a de­
parture from the accepted and usual course of judi­
cial proceedings as to call for an exercise of this 
Court’s power of supervision by writ of mandamus.

As already noted, Idlewild promptly sought to comply 
with the majority opinion in the Court of Appeals by re­
newing its application to the District Court for the con­
vening of a three-judge district court and for injunctive 
relief.

This was precisely in accordance with the procedure 
suggested by this Supreme Court in Stratton v. St. Louis 
S. W. Ry. Co., supra 282 IT. S. 10, 18, and by Judge (now 
Mr. Justice) Stewart in Chicago, Duluth & Georgian Bay 
Transit Co. v. Nims, supra, 252 F. 2d at p. 319.

Judge Cashin was clearly in error in characterizing 
as “dictum” the very essence and ratio decidendi of the 
majority of the Court of Appeals, thus clearly stated in 
their opinion (108a, 110a):

“ Having decided that Judge Bicks had no juris­
diction to proceed as he did, we must conclude from 
Stratton that we have no jurisdiction to entertain an 
appeal from his decision.
“ * * * we must hold that inasmuch as Judge Dimock 
exercised power properly exercisable only by a three- 
judge district court we have no jurisdiction to hear an 
appeal from his order.”

Nevertheless Judge Cashin brushed these rulings aside 
as “ dictum,” and held himself bound to follow as “ the law 
of this case” and “ as still in full force and effect” the 
very orders which the Court of Appeals had just held to 
have been made without jurisdiction and hence without 
existence in law.

P O I N T  V I



32

Having been rendered without jurisdiction, the orders 
of Judge Bicks and Judge Dimoek were as a matter of law 
“ nullities” and “ void” , Vallely v. Northern Fire Ins. Co., 
254 IT. S. 348, 353-4; McQuillen v. Dillon, 2 Cir., 98 F. 2d 
726, cert. den. 305 U. S. 655; Pollitz v. Wabash R. Co., 180 
Fed. 950, 951 (C. C. S. D. N. Y.).

But even if these orders by Judges Bicks and Dimoek, 
rendered without jurisdiction, could by any stretch of 
imagination possibly constitute “ the law of this case,” 
Judge Cashin was under “ no imperative duty to follow” 
them. Dictograph Products Co. v. Sonotone Corp., supra, 
230 F. 2d at p. 135.

Judge Cashin suggested (a) an application for reargu­
ment to Judge Bicks,—a remedy which was wholly illusory 
as practical matter (141a), and also (b) an application for 
a writ of mandamus (135a).

Conclusion

Idlewild respectfully prays this Court to issue a writ 
of certiorari to the United States Court of Appeals for the 
Second Circuit, and/or for leave to file its petition for writs 
of mandamus directed to Judge Bicks, Judge Dimoek and 
Judge Cashin; and for such other reliefs as may be just 
and proper.

Respectfully submitted,

Charles H. T uttle,
Counsel and Attorney for Petitioner, 

15 Broad Street,
New York 5, New York.

J ohn F. K elly,
S toddard B. Colby,
S tuart H. J ohnson, J r.,

Also of Counsel.