Florida Lime and Avocado Growers, Inc. v. Jacobsen Appellee's Brief
Public Court Documents
January 1, 1959

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Brief Collection, LDF Court Filings. Florida Lime and Avocado Growers, Inc. v. Jacobsen Appellee's Brief, 1959. cd337309-b29a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/be504381-3ebe-4472-baaa-7b4587c72ab3/florida-lime-and-avocado-growers-inc-v-jacobsen-appellees-brief. Accessed July 30, 2025.
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IN THE SUPREME COURT O F THE UNITED STATES O ctober T e r m , 1959 No. 49 FLORIDA LIME AND AVOCADO GROWERS, INC., a Florida corporation, and SOUTH FLORIDA GROWERS ASSOCIATION, INC., a Florida cor poration, Appellants, vs. W. C. JACOBSEN, Director of the Department of Agriculture of the State of California, Appellee. Appeal from the United States District Court for the Northern District of California, Northern Division APPELLEE'S BRIEF STANLEY MOSK, Attorney General of the State of California JOHN FOURT, Deputy Attorney General of the State of California ,538 Library and Courts Building Sacramento 14, California Attorneys for Appellee printed in Ca l i f o r n i a s t a t e p r i n t i n g o f f i c e TOPICAL INDEX Page OPINION B E L O W ________________________________________ 1 JURISDICTION __________________________________________ 2 QUESTIONS PRESENTED ______________________________ 2 STATUTES INVOLVED ________________________________ 2 STATEMENT____________________________________________ 2 SUMMARY OF ARGUMENT______________________________ 10 ARGUMENT______________________________________________ 15 I. The Appeal Must Be Dismissed Because the Case Is Not Within the Jurisdiction of This Court__________________ 15 II. Appellants’ Case Fails to Show the Existence of a Case or Controversy_______________________________________24 III. Appellants’ Case Is Not Within the Equity Jurisdiction of the District Court_________________________________ 29 CONCLUSION____________________________________________ 34 TABLE OF AUTHORITIES CITED C A S E S Page Aetna Life Ins. Co. v. Haworth, 300 U. S. 227_______________ 24 Alabama v. Arizona, 291 U. S. 286, 292______________________ 31 American Federation of Labor v. Watson, 327 U. S. 582 7, 8, 15, 29, 30, 32 Arizona v. California, 283 U. S. 423__________ ____________ 24 Ashwander v. Valley Authority, 297 U. S. 288_______________ 24 Buder, Ex parte, 271 U. S. 4 6 i_______________________11, 16, 21 Collins, Ex parte, 277 U. S. 5 6 5 .___________________ 10, 15, 21 Doud v. Hodge, 350 U. S. 485______________________________ 32 Douglas v. Jeannette, 319 IT. S. 157____________________ 8, 30, 31 Evers v. Dwyer, 358 U. S. 202________________________ _27, 28 Fitts v. McGhee, 172 U. S. 516_______________________ 13, 24, 26 Florida Lime and Avocado Growers v. Jacobsen, 169 F. Supp. 774_____ ______ _____________________8, 9 - Gully v. Interstate Natural Gas Co., 292 U. S. 16___________ 15 Hawks v. Hamill, 288 U. S. 52_________ __________________ 31 Industrial Min. Guaranty Co. v. Electrical Supply Co., 58 Fed. 732_______ ______________________ *___________17, 18 La Prade, Ex parte, 289 II. S. 444__________________________ 7 Lehon v. Atlanta, 242 U. S. 53_____________________________ 26 Lemke v. Farmers’ Grain Co., 258 U. S. 50________________ 11, 16 Lord v. Garland, 27 Cal. 2d 840, 168 P. 2d 5 ____________ 33, 34 Martin v. Creasy, 360 IT. S. 219_____________ _______________ 8 Meridian v. Southern Bell Tel. & Tel. Co., 358 IT. S. 639______8, 30 Moore v. Fidelity & Deposit Co., 272 U. S. 317 (1926)______20, 21 New v. Oklahoma, 195 U. S. 252___________________________ 24 Oklahoma Gas & E. Co. v. Oklahoma Packing Co., 292 Li. S. 386 15 Parker v. Brown, 317 IT. S. 341____________________________ 23 Pennsylvania v. Williams, 294 IT. S. 176, 185________________ 30 Phillips v. United States, 312 IT. S. 246...___ 12, 15, 17, 21, 22, 23 Public Service Comm ’n v. Wycoff, 344 U. S. 237__________13, 28 Pub. Util. Comm ’n v. United Air Lines, 346 IT. S. 402________ 28 Rescue Army v. Municipal Court, 331 U. S. 549____________11, 22 Shaffer v. Carter, 252 IT. S. 37 20 Siler v. Louisville & N. R. Co., 213 U. S. 175_____ 22 Smith v. Wilson, 273 U. S. 388______________________ 19, 21, 23 Spielman Motor Co. v. Dodge, 295 IT. S. 89_ 7, 8, 15, 19, 30, 31, 32 Stainback v. Mo Hock Ke Lok Po, 336 U. S. 368_____10, 12, 15, 23 United Public Workers v. Mitchell, 330 U. S. 75_____. ___ 13, 27 United States v. Boutwell, 17 Wall. 604.____________________ 9 United States v. More, 3 Cranch. 159______________________ 24 Webster v. Fall, 266 U. S. 507___________________________ 23, 24 Willing v. Chicago Auditorium, 277 U. S. 274____________ 13, 29 Young, Ex parted 209 U. S. 123 (1908)__________13, 18, 24, 25, 26 C A L I F O R N I A C O D E S Page 3 California Administrative Code: Sec. 1366.2 ___________________________________________ 2, 41 Sec. 1397.6 ___________________________________________ 2, 43 California Agricultural Code: Secs. 751-1149.9 ____________ 3, 14 Sec. 784 ____________________________________________ 2, 37 Sec. 785 _________________________ — ---------------- 2, 9, 34, 37 Sec. 785.6 ____________________________________________ 2, 4Q Sec. 792 (Calif. Stats. 1925, Ch. 350, Sec. 10)__2, 3, 10, 15, 41 Sec. 831 ______________________________________________ 2, 41 F E D E R A L A C T S Act of March 2, 1793, 1 St.at. 333___________________________ 17 Act of June 1, 1872, 17 Stat. 196___________________________ 17 Act of Feb. 11, 1903, 32 Stat. 823___________________________ 18 Act of June 29, 1906, 34 Stat. 584--------------------------------------- 19 Act of June 18, 1910, Sec. 17, 36 Stat. 539________________17, 18 Act of June 25, 1948, 62 Stat. 968____________________ ______ 19 Agricultural Marketing Agreement Act of 1937, 49 Stat. 750, as amended 50 Stat. 246-------------------------------------------4, 10, 16 Antitrust, Interstate Commerce, and Stockyard and Packer Acts ____________________________________________ 19 Hatch A c t ________________________________________________ 27 Judiciary Act of 1925, 43 Stat. 936______________ 19, 20 TABLE OF AUTHORITIES CITED—Continued F E D E R A L C O N S T I T U T I O N A N D S T A T U T E S Equity Rule 55 ___________________________________________ 11 7 Code of Federal Regulations, Part 969------------------------------ 4 Rule 56, Federal Rules of Civil Procedure--------------------------- 7 1911 Judicial Code (36 Stat. 1087) : Sec. 238 ____________________________________________ 20, 23 Sec. 266 ____________________________________________ 20, 23 United States Code: Title 7, Secs. 601-659 ______________________________ 4, 10, 16 Title 28: Former Secs. 345, 380 ------------------------------------------------- 23 See. 1252 ___________________________________________ 23 Sec. 1253 ________________________________ 2, 10, 15, 22-23 Sec. 1331 ___________________________________________ 8 Sec. 1337 ___________________________________________ 8 Sec. 2201 ___________________________________________ 34 Sec 2281 ___ ___ __________10, 11, 12, 15, 16, 17, 23 TABLE OF AUTHORITIES CITED—Continued F E D E R A L C O N S T I T U T I O N A N D S T A T U T E S — Continued Page United States Constitution: Article III ________________________________ 2, 13, 24, 29, 30 Commerce Clause _______________________________ 16 EleArenth Amendment __________________________________ 24 Equal Protection Clause ________________________________ 16 M I S C E L L A N E O U S A Case for Three Judges, 47 Harv. L. Rev. 795, Hutcheson___ 18 42 Congressional Record 4846 et seq. (1908)_________________ 18 45 Congressional Record 7252 et seq. (1910)_________________ 18 66 Congressional Record 2917 (1925)_______________________ 20 “ Judiciary Act of 1925,” 42 Harv. L. Rev. 1, Frankfurter & Landis ________________ 20 10 L. W. 3347 __________________________________ 23 IN THE SUPREME COURT OF THE UNITED STATES O ctober T e r m , 1959 No. 49 FLORIDA LIMB AND AVOCADO GROWERS, INC., a Florida corporation, and SOUTH FLORIDA GROWERS ASSOCIATION, INC., a Florida cor poration, Appellants, vs. W. C. JACOBSEN, Director of the Department of Agriculture of the State of California, Appellee. Appeal from the United States District Court for the Northern District of California, Northern Division APPELLEE'S BRIEF OPINION BELOW The opinion of the three-judge district court dismiss ing the case for lack of jurisdiction is reported at 169 F. Supp. 774. — 2 JURISDICTION Appellee has heretofore moved that the appeal he dismissed because it is not within the jurisdiction of this Court, and alternatively, that the judgment below should be affirmed because the questions presented are so unsubstantial as not to need further argument. By order of June 22,1959, the Court postponed considera tion of jurisdiction to the hearing of the case on the merits. 359 U. S. 915. QUESTIONS PRESENTED Whether this Court has jurisdiction of the case under 28 U. S. C. Sec. 1253. Whether there exists a ease or controversy under Article III , United States Constitution, cognizable in the United States District Court. STATUTES INVOLVED The pertinent provisions of the California statutes (Calif. Agr. Code, Secs. 784, 785, 785.6, 792, 831) and of the California regulations (3 Calif. Adm. C,, Secs. 1366.2 and 1397.6) are set forth in Appendix A to Ap pellee’s Brief. STATEMENT Appellants’ complaint in the district court asks that the California avocado maturity statute be declared in valid under the Federal Constitution and under con trolling federal law, and that California officers be restrained from enforcing the state statute. Appellants are Florida corporations engaged in the business of — 3 — marketing avocados and other agricultural products grown in Florida (R. 4, 219, 281). California Agricul tural Code Section 792, the statute under attack by appellants, is part of a comprehensive statutory scheme regulating the quality and maturity of agricultural products sold to California consumers. See California Agricultural Code Sections 751-1149.9. Section 792 pro vides in relevant part: “ All avocados, at the time of picking, and at all times thereafter, shall contain not less than 8 per cent of oil, by weight of the avocado excluding the skin and seed.” The 8 percent oil content requirement of Section 792 was first adopted by the California Legislature as a measure of avocado maturity in 1925. Section 10, Chap ter 350, California Statutes of 1925. The 8 percent oil test for determining avocado maturity has been a part of the California Agricultural Code ever since. Both appellants began marketing avocados grown in Florida in 1939 (R. 219, 281). They began shipping Florida avocados to California markets in 1954 (R. 226, 289). The complaint initiating the present litigation was filed in the United States District Court for the Northern District of California on November 13, 1957 (R. 4). In their complaint appellants contend that as applied to Florida avocados marketed in California, the 8 percent oil maturity law is unconstitutional under the Commerce Clause and the Equal Protection Clause of the Constitution (R. 5). Appellants’ complaint also maintains that this oil standard is invalid as being in 4 — conflict with the Agricultural Marketing Agreement Act of 1987, 49 Stat. 750, as amended 50 Stat. 246; 7 U. S. C. Secs. 601-659, and as implemented by an admin istrative marketing order issued by the Secretary of Agriculture regulating avocados grown in South Flor ida (R. 6; 7 CFR Part 1, 969). Appellants prayed for both interlocutory and permanent injunction orders against appellees, but neither appellant has taken any steps toward applying for interlocutory relief (R. 1-3, 16). After appellees answered the complaint, appellants by written stipulation were given permission to take depositions of their own witnesses in Florida. [Origi nal Certified Record, 190j.1 The stipulation signed by counsel for appellants stated “ that plaintiffs [appel lants] represent that said depositions are not being taken for purposes of discovery but are to be offered in evidence by the plaintiffs [appellants] and are being taken for plaintiffs’ sole benefit and are not sought by the defendants [appellees] hereto” [Original Rec ord, 190]. Two of the depositions contained in the printed record on appeal are those of Harold E. Ken dall, President of appellant South Florida Growers Association, Inc., and Fred A. Piowaty, Assistant Gen eral Manager of appellant Florida Lime and Avocado Growers, Inc. (R. 218-280; 281-298). 1 Counsel for appellants and appellee have filed a stipulation dated July 13, 1959, agreeing that reference may be had in briefs and oral argument to the unprinted portions of the certified record on file with the clerk. 5 — The allegations of appellants’ coinplaint and the evidence presented by their principal officers, Kendall and Piowaty, reflect the following pattern of business: Between them appellants market approximately 50 percent of all avocados grown in Florida (R. 9). Avo cados are but one of a number of Florida agricultural products marketed by appellants (R. 219, 281). Since 1954, when appellants first began marketing avocados in California, approximately 96.35 percent of all avocados shipped by appellants to California passed the 8 percent oil test of maturity and were freely mar keted in California (PL Ex. 17, R. 436, 230; PI. Ex. 19, R. 438, 247-248; PI. Ex. 20, R. 438, 283; PI. Ex. 21, R. 439, 286; D. Ex. S, R. 445, 296).2 Appellant Florida Lime and Avocado Growers, Inc., claims that during the marketing seasons for the years 1954 to 1957, 6,681 lug boxes of its avocados—representing only 5.47 per cent of the total shipped to California during the pe riod-failed to comply with the avocado maturity law (PI. Ex. 20, R. 438, 283; PI. Ex. 21, R. 439, 286). Ap pellant South Florida Growers Association, Inc., as serts that during the 1954 to 1957 marketing seasons 641 bushels, representing only 1.84 percent of the avo cados it shipped to California during that period, were determined by California authorities to be in noncom pliance with the 8 percent oil law (PI. Ex. 17, R. 436, 230; PI. Ex. 19, R. 438, 247-248). Appellant Florida Lime and Avocado Growers, Inc., during the years 1954, 1955, 1956 and 1957, made total 2 All exhibits marked for identification only, e-g., R, 116. — 6 — national shipments of 123,833 bushels of avocados, of which the shipments to California amounted to 16,759 bushels or 13.53 percent of the national total (PL Ex. 20, E. 438, 283). The quantity which this appellant claims failed to comply with the California oil ma turity standard during these years amounted to 1,857 bushels, representing .74 percent of this appellant’s total avocado sales (PI. Ex. 20, E. 438, 283; PI. Ex. 21, E. 439, 286). Shipments to California during this period represented only 5 percent of appellant South Florida Growers Association’s total national sales, and the 642 bushels which failed to meet the California maturity standard represented .09 percent of this ap pellant’s total national avocado sales for these years (PI. Ex. 17, E. 436, 230; PI. Ex. 19, B. 438, 247-248). The pattern of business operations followed by both appellants, upon receiving notice from California au thorities that a shipment of avocados did not comply with the avocado maturity law, has been as follows: Both followed the practice of voluntarily transship ping these lots for sale in other western markets out side California (PL Ex. 17, E. 436, 230; Pl. Ex. 21, 439, 286; 234). The financial loss which appellants claim resulted from the operation of the California statute was a reduction in anticipated returns from sales of noncomplying fruit on other western markets (E. 249-251, 292-293). Appellant Florida Lime and Avocado Growers, Inc., for example, claims a reduc tion from gross returns of $7,496.01 during the fiscal i year April 1,1955 to March 31, 1956 by reason of mar keting noncomplying fruit outside California (PL Ex. 21, R. 439-440, 286). This represents a reduction of 1.23 percent of this appellant’s gross receipts from all business for this fiscal year (R. 87). Appellant South Florida Growers Association, Inc., claims a reduction in gross income on noncomplying fruit transshipped to other western markets as follows: 1954—$554.33, representing .037 percent of this appellant’s total gross income; 1955—$210.62, representing .012 percent of total gross income; and 1956—$821.62, representing .047 percent of total gross income (PI. Ex. 17, R. 436, 230; R. 85). Accepting as true the allegations of appellants ’ com plaint and the evidence presented by their corporate officers,3 appellee filed motions to dismiss the action as to both appellants (R. 44, 78). Appellee urged in sup port of his motions to dismiss that appellants’ case was not within the equity jurisdiction of the district court because of failure to meet the “ strict test” (American Federation of Labor v. Watson, 327 U. S. 582, 593) of great and immediate irreparable harm which a litigant must satisfy before a federal court will exercise its 8 Appellants complained in their Jurisdictional Statement that to the extent that the decision of the district court is of a factual nature, it is somehow incorrect. Jurisdictional Statement, p. 7. However, a motion to dismiss, like a motion for summary judg ment under Rule 56, Federal Rules of Civil Procedure, may be based on pleadings, depositions and affidavits if there is no genuine issue as to material facts controlling the questions raised by the motion to dismiss. See, e.g., Spielman Motor Com pany v. Dodge, 295 U. S. 89, 91-92; Ex parte La Trade, 289 U. S. 444, 452. Significantly, appellants cite no specific factual basis of the decision below which they claim to be erroneous. — 8 powers of equity to interfere with the enforcement of state laws (R. 78, 44 et seq.). See, e.g., Spielman Motor Go. v. Dodge, 295 U. S. 89, 95; Douglas v. Jeannette, 319 U. S. 157, 164. Other grounds for appellants’ mo tions to dismiss were that the complaint fails to show that the matter in controversy exceeds the sum or value of $3,000 within the purview of 28 U. S. 0. Sec. 1331, and that the complaint fails to show that the action or proceeding arises under any act of Congress regulating commerce within the purview of 28 IT. 8. C. Sec. 1337 (R. 44-45, 78-79). Alternatively, appellees moved the court to hold the ease in abeyance pending an author- 1 itative interpretation of California law by California J courts (R. 45, 79). See e.g., American Federation of : Labor v. Watson, 327 IT. S. 582; Meridian v. Southern 1 Bell Tel. & Tel. Co., 358 IT. S. 639; Martin v. Creasy, 1360 IT. S. 219. The district court dismissed the complaint on the ground that it had no jurisdiction because of the ab sence of a presently existing controversy between the parties. Florida Lime & Avocado Growers v. Jacobsen, 169 F. Supp, 774. The court’s conclusion is summed up as follows: “ There is no claim here of any present existing controversy between the parties. The claim at best suggests no more than a threatened controversy. Art actual controversy could arise only if there were a co-existence of four facts, namely: “ 1. The bringing of avocados to California by plaintiff; — 9 — “ 2. The failure of avocados to meet the standards fixed by law; “ 3. The refusal of the plaintiff to recondition or remove the avocados; and “ 4. An election by plaintiffs to contest the abate ment in the state courts as provided by Sec tion 785 [of the California Agricultural Code]. 169 F. Supp. at 776.” No request for leave to amend the complaint was made, nor did appellants seek rehearing, following dismissal of the case (R. 1-3). On February 12, 1959, appellants filed a direct appeal from the judgment of dismissal entered January 13, 1959, by a single dis trict court judge (R. 104).4 4 The complaint names as defendants the Governor, Attorney Gen eral and the Director of Agriculture of the State of California (R. 4). The action abated as to the defendants Governor and Attorney General, who vacated their respective state offices on January 5, 1959, the District Court by order of February 20, 1959, having refused to join their successors in office as de fendants (R. 109). United States v. Boutwell, 17 Wall. 604. 10 SUMMARY OF ARGUMENT I. Appellants’ Case is Not Within the Jurisdiction of the Court. Direct appeal to this court cannot be taken under 28 U. S. C. Sec. 1253 unless the action is one required to be heard and determined by a district court of three judges. Stainback v. Mo Hock Ke Lok Po, 336 U. S. 368. 28 U. S. C. 2281 provides that only a district court of three judges may grant an injunction restraining the enforcement of a state statute “ upon the ground of the unconstitutionality of such statute.” This section does not govern all suits in which the object is to re strain the enforcement of state legislative action, but only those cases coming within its terms. Ex parte Collins, 277 IT. S. 565, 568-569. California Agricultural Code Section 792 establishes maturity and quality standards for avocados and pro vides in relevant part: “ All avocados, at the time of picking, and at all times thereafter, shall contain not less than 8 percent of oil, * * Appellants are Florida corporations handling avocados grown in Florida, and attack the state statute on the grounds that it violates the Equal Protection Clause and the Commerce Clause of the United States Constitution (R. 4, 219, 281). Appellants combine these two consti tutional arguments with an assertion that the Cali fornia statute conflicts with the Agricultural Market ing Agreement Act of 1937, 49 Stat. 750, as amended 50 Stat. 246; 7 P. S. C. Secs. 601-659 (R. 4). An asser tion that a state statute is invalid because it conflicts 11 with a controlling federal statute is not a ground of j unconstitutionality of the statute within the meaning of 28 U. S. C. Sec. 2281. Ex parte Buder, 271 IT. S. J 461. Where the only ground for seeking injunctive relief is that the state statute conflicts with the federal statute, a three-judge court is not required and a direct appeal will not lie to the Supreme Court. Ex parte Buder, 271 U. S. 461. Conversely, when the jurisdiction of the district court rests solely upon an attack upon a state statute because of its alleged vio lation of the Federal Constitution, a direct appeal to the Supreme Court is the only method of review. Lemke v. Farmers Grain Co., 258 U. S. 50, 52. Where, as in the instant case, a ground of unconstitutionality is joined with the ground that the state statute con flicts with a controlling federal statute, the injection of the nonconstitutional ground should render in applicable the three-judge requirement of 28 U. S. C. 2281. To interpret Section 2281 otherwise would produce an anomalous result. If the plaintiff joins a nonconstitutional ground to the complaint, it is likely that the case will be decided on that ground if at all possible. The avoidance of constitutional ques tions where possible is a rule that is basic in the fed eral judicial system. Rescue Army v. Municipal Court, 331 U. S. 549, 570. Thus to permit a three-judge court to be convened for the purpose of deciding a noncon stitutional question would extend, rather than limit, f — 12 the scope of Section 2281, a statute heretofore de scribed by the Court “ as ail enactment technical in the strict sense of the term and to be applied as such.” Phillips v. U. S., 312 U. S. 246, 250-251. Though er roneously convened, the judgment of the three-judge district court is valid and appellants’ appeal must be taken to the appropriate court of appeals, with review thereafter in proper cases to this Court. Stairiback v. Mo Hock Ke Lok Po, 336 IT. S. 368. II. Appellants’ Case Fails to Show the Existence of a Case or Controversy. Since 1954, when appellants first began marketing Florida avocados in California, approximately 96 per cent of all avocados shipped by appellants to California passed the 8 percent maturity oil test, and were sold in California (PI. Ex. 17, R. 436, 230; PI. Ex. 19, R. 438, 247-248; PL Ex. 20, R. 438, 283; PI. Ex. 21, R. 439, 286). Those lugs of avocados which failed upon inspec tion to comply with state law were voluntarily trans shipped by appellants for sale in neighboring western markets (PI. Ex. 17, R. 436, 230; PI. Ex. 21, R. 439, 286). None of appellants’ avocados were seized by Cali fornia authorities (PI. Ex. 22, R. 441, 287), nor did appellants at any time violate California law. Appel lants make no claim of personal wrongdoing against appellee regarding past shipments to California, and these transactions are closed. While appellants desire in the future to market low oil content avocados which — 13 — may not comply with California statute, they have never actually done so. No threatened interference with appellants’ rights appear beyond that implied by the existence of the California statute. A general threat that public officers will enforce the laws they are charged to administer is not sufficient to create a justiciable controversy. United Public Workers v. Mitchell, 330 U. S. 75, 88. Appellants’ grievance with the statute does not create a case or controversy since, in the absence of a personal wrong, a state officer may not be sued in a representative capacity in order to test the constitutionality of a state statute. Fitts v. McGhee, 172 IT. S. 516, 530; Ex parte Young, 209 IT. S. 123, 157. Realistically, appellants are seeking to establish a defense against state action which they fear that ap pellee may in the future assert against them in the state courts. Appellants must await such court action, or other interference by appellee with their market ing of avocados in California, before a justiciable controversy based on concrete facts will appear. Pub lic Service Comm’n v. Wycoff, 344 IT. S. 237, 248. The fact that the appellants’ desires are thwarted by their own doubts does not confer a cause of action. Willing v. Chicago Auditorium, 279 IT. S. 274, 289-290. These considerations compel the conclusion that appellants’ case, by reason of its uncertainty, fails to show the existence of a controversy with appellee under Con stitution, Article III. 14 III. Appellants’ Case is Not Within the Equity Jurisdiction of the District Court. Appellants are not sufficiently affected by the Cali fornia avocado maturity law to warrant the interfer ence by the injunctive powers of a federal court of equity. Over 96 percent of the avocados shipped by appellants to California complied with the statute and were freely marketed in California (PL Ex. 17, R. 436, 230; PI. Ex. 19, R. 438, 247-248; PI. Ex. 20, R. 438, 283; PI. Ex. 21, R. 439, 286). The few shipments that failed to comply with the California maturity standards were not lost to appellants but were transshipped for sale in adjoining western markets. The claimed reduction in gross return caused by such transshipments for the fiscal year April 1, 1955, to March 31, 1956, by appellant Florida Lime and Avocado Growers, Inc., amounted to $7,496.01, a reduction of only 1.23 per cent of the appellants’ gross receipts from all busi ness (PL Ex. 21, R. 439-440, 286; R. 87). Similarly, appellant South Florida Growers Association, Inc., claims reductions in total gross income from these transshipments of .03 percent for 1954, .12 percent for 1955, and .047 percent for 1956 (PI. Ex. 17, R. 436, 230; R. 85). None of appellants’ avocado ship ments have been seized by California authorities (PL Ex. 22, R. 441, 287) nor have appellants committed a violation of the California Fruit and Vegetable Stand ardization Law. California Agricultural Code, Sec tions 751 et seq. These circumstances show that appel lants have not sustained, nor are they threatened with, 15 “ irreparable injury” both “ great and immediate” which would prompt the federal chancellor to inter fere by injunction with the enforcement of the Cali fornia avocado maturity statute. Spiel,man Motor Co. v. Dodge, 295 U. S. 89, 95; American Federation of Labor v. Watson, 327 U. S. 582, 593. ARGUMENT I. The Appeal Must be Dismissed Because the Case is Not Within the Jurisdiction of This Court. Direct appeal to this court cannot be taken under 28 U. S. C. Sec. 1253 unless the action is one required to be heard and determined by a district court of three judges. Stainback v. Mo Hock Ke Lok Po, 336 U. S. 368; Phillips v. United States, 312 TJ. S. 246; Okla homa Gas & E. Co. v. Oklahoma Packing Co., 292 | U. S. 386; Gully v. Interstate Natural Gas Go., 292 U. S. 16. The threshold jurisdictional question is, therefore, whether appellants’ case is one that is re quired by 28 TJ. S. C. Sec. 2281 to be heard by a three- judge court. Section 2281 provides that only a district court of three judges may grant an injunction restraining the enforcement of a state statute “ upon the ground of the unconstitutionality of such statute.” The section does not govern all suits in which the object is to re- t1 strain the enforcement of a state legislative action. , Ex parte Collins, 277 TJ. S. 565, 568-569. Appellants attack the validity of Section 792 of the California Agricultural Code on the grounds that it 16 — violates the Equal Protection Clause and the Com merce Clause of the United States Constitution (E. 4). Appellants combine these two constitutional argu ments with an assertion that the California statute conflicts with a federal statute, the Agricultural Mar keting Agreement Act of 1937, 49 Stat. 750, as amended 50 Stat. 246; 7 U. S. C. Sec. 601-659 [B, 4], An assertion that a state statute is invalid because it conflicts with a controlling federal statute is not a ground of unconstitutionality of the statute within the meaning of 28 U. S. C. Sec. 2281. Lemke v. Farmers’ Grain Co., 258 U. S. 50; Ex parte Buder, 271 U. S. 461. The issue, then, is one of statutory construction: Is a three-judge court required under Section 2281 if a nonconstitutional federal ground of attack on the validity of the statute is joined with a ground of its unconstitutionality ? There is authority that where the jurisdiction of the district court rests solely upon an attack upon a state statute because of its alleged violation of the Federal Constitution, a direct appeal to the Supreme Court is the only method of review. Lemke v. Farmers Grain Co., 258 U. S. 50, 52. Conversely, there is authority that if the only ground for seeking injunctive relief is that the state statute conflicts with a controlling federal statute, a three-judge court is not required, and a direct appeal will not lie to the Supreme Court. Ex parte Buder, 271 U. S. 461, and where, as in the instant ease, a ground of unconstitutionality is joined 17 with the ground that the state statute conflicts with a federal statute, the injection of the nonconstitu tional ground should render inapplicable the three- judge requirement of 28 U. S. C. 2281. If the three- judge court was improperly convened, the appeal lies to the appropriate court of appeals. Phillips v. United States, 312 U. S. 246. Denying a plaintiff the right to the extraordinary procedure of a three-judge district court, if he attacks I a state statute on a ground other than its uneonstitu- I tionality, is consistent with the policy of close con- f struction which the Court has historically applied when interpreting the scope of the three-judge re quirement of 28 U. S. C. Sec. 2281 and its predecessor j statutes. See Phillips v. United States, 312 U. S. 246,1 251. The three-judge requirement of 28 U. S. C. 2281 de rives from Section 17 of the act of June 18, 1910, 36 Stat. 539, 557. At the time of its enactment the fed eral courts, except as restrained against enjoining proceedings in state courts by the act of March 2, 1793, 1 Stat. 333, 334-5, had statutory authority to grant restraining orders against state officers without notice, (Act of June 1, 1872, 17 Stat. 196, 197), and to enter such interlocutory and final injunctions after notice and hearing. Act of March 2, 1793, 1 Stat. 333, 334; Act of June 1, 1872, 17 Stat. 196, 197; Equity Rule 55; Industrial Min. Guaranty Co. v. Electrical u Supply Co., 58 Fed. 732, 737 (1893). No provision was — 18 — made for expediting the hearing on a motion for in junction where a restraining order had been issued, nor was any time limitation put to the operation of the restraining order, except for the ruling of the court on motion. In this procedural context, the Court in Ex parte Young, 209 U. S. 123 (1908), reaffirmed the jurisdic tion of the federal courts to entertain suits to restrain the wrongful acts of state officers acting under color of state law, where the plaintiff asserted rights pro tected by the Constitution. In an era of increasing state regulation of commerce the Young decision raised a congressional concern that the solemn legis lative acts of the states, and the efforts of state officers to enforce them, were being impeded by the abusive use of federal court ex parte restraining orders and interlocutory injunctions. 42 Cong. Rec. 4846 et seq. (1908); 45 Cong. Rec. 7252 et seq. (1910) ; Hutcheson, A Case for Three Judges, 47 Harv. L. Rev. 795, 803. The mischief as conceived by Congress lay not in the exercise of the federal jurisdiction in such cases, but in the manner of its exercise. The ameliatory legisla tion (Section 17 of the act of June 18, 1910, 36 Stat. 539, 557) established new procedural safeguards by requiring that a three-judge court pass on applications for interlocutory injunctions in such cases. This device of a court of special dignity, with expedited review in the Supreme Court, was taken from the act of Febru ary 11, 1903, 32 Stat. 823, which established such a 19 — court for antitrust cases certified by the Attorney! General to be of general public importance, and from the act of June 29, 1906, 34 Stat. 584, 592, which directed that a three-judge court hear any suit to re strain, set aside, or annul an order of the Interstate Commerce Commission. To avoid the anomaly of a single judge reviewing the interlocutory decision of a three-judge court, the act of February 13, 1925, 43 Stat. 936, 938, extended the requirement of three judges to the hearing on final injunction. Smith v. Wilson, 273 U. S. 388, 390. There after Congress recognized the common practice of having the case heard in the District Court on inter locutory and final injunction at the same time, (e.g., Spielman Motor Co. v. Dodge, 295 XL S. 89), and by . the act of June 25, 1948, 62 Stat. 869, 968, made the three-judge requirement applicable to hearings for either interlocutory or permanent injunction. However, the right of direct appeal to the Supreme Court from three-judge court interlocutory decrees added new obligatory jurisdiction to an already over burdened court. At the suggestion of the Court, Con gress by the Judiciary Act of 1925, 43 Stat. 936, i| transferred numerous classes of cases from obligatory review by appeal or writ of error to discretionary re- fy view by certiorari. Direct review by the Supreme Court was abolished from decisions of the district court, except in suits arising under the Federal Anti trust, Interstate Commerce, and Stockyard and Packer Acts, writs of error by the United States in — 20 criminal cases, suits to enjoin orders of the Inter state Commerce Commission, and in suits to enjoin the enforcement of state statutes under Judicial Code Section 266.5 The earlier 1911 Judicial Code Section 266, 36 Stat. 1087, 1162, authorized a direct appeal to the Supreme Court from a three-judge district court interlocutory order granting or denying an injunction restraining the enforcement of a state statute claimed to be unconstitutional. The right of direct appeal from a one-judge district court final judgment or decree was much broader under 1911 Judicial Code Section 238 [36 Stat. 1087, 1157], since the only requirement was that the case be one “ in which the constitution or law of a State is claimed to be in contravention of the Constitution of the United States.” See Shaffer v. Carter, 252 U. S. 37. This broad right of direct appeal was eliminated by the Judiciary Act of 1925, 43 Stat. 936, 938, which limited direct appeals to the orders of three-judge district courts granting or denying interlocutory injunctions restraining enforcement of a state statute on the ground of its unconstitution ality, and from a three-judge district court order granting or denying a permanent injunction in such suits where application for the interlocutory injunc tion had been made. Moore v. Fidelity & Deposit Co., 272 U. S. 317, 319-321; 66 Cong. Ree. 2917 (1925). The Court early applied the policy of narrowing its obligatory jurisdiction as expressed in the Judiciary Act of 1925, 43 Stats. 936, when interpreting the 5 Frankfurter & Landis, Judiciary Act of 1925, 42 Harvard Law Review 1. Judiciary Act of 1925, 43 Stat. 936, 938. 21 — scope of the statute requiring three-judge courts to hear suits to enjoin enforcement of state statutes. See Ex parte Buder, 271 U. S. 461 (1926); Moore v. Fidel ity & Deposit Co., 272 U. S. 317 (1926) ; Smith v. Wil son, 273 IT. S. 388, Ex parte Collins, 211 U. S. 565. In addition to insuring tighter control over its own docket, this restrictive interpretation of the three- judge statute permitted the Court to receive more benefit from the illumination which serious questions derive from passing through the courts of appeals. Congress, mindful that a severe burden was placed upon the federal judiciary by the requirement of a panel of three judges, combined with a right of direct appeal to the Supreme Court, confined this unusual procedure to “ a limited class of cases of special im portance and requiring special treatment in the in terest of the public.” Ex parte Collins, 277 IT. S. 565, 568-569. Mr. Justice Frankfurter, speaking for a unanimous Court, expressed the philosophy of the statute in Phillips v. IT. S., 312 IT. S. 246, 250-251: “ . . . The history of [Judicial Code] §266 . . ., the narrowness of its original scope, the piece-meal explicit amendments which were made to it . . ., the close construction given the. section in obedi ence to Congressional policy [cases cited] combine to reveal § 266 not as a measure of broad social policy to be construed with great liberality, but as an enactment technical in the strict sense of the term and to be applied as such. “ To bring this procedural device into play—to dislocate the normal operations of the system of — 22 lower federal courts and thereafter to come di rectly to this Court—requires a suit which seeks to interpose the Constitution against enforcement of a state policy, whether such policy is defined in a state constitution or in an ordinary statute or through the delegated legislation of an ‘admin istrative board or commission.’ The crux of the business is procedural protection against an im provident state-wide doom by a federal court of a state’s legislative policy. This was the aim of Con gress and this is the reconciling principle of the cases. ’ ’ If a plaintiff who wishes to challenge a state statute on a nonconstitutional ground is permitted to invoke the extraordinary three-judge procedure by joining a ground of unconstitutionality, an anomalous result may obtain which would be out of harmony with the policy of close construction of Section 2281. If the plaintiff injects a nonconstitutional ground into the complaint, it is likely that the case will be decided on that ground if at all possible. The avoidance of con stitutional questions where possible is a rule that is basic in the federal judicial system. Rescue Army v. Municipal Court, 331 U. S. 549, 570; Siler v. Louis ville & N. R. Co., 213 U. S. 175, 193. Thus to permit a three-judge court to be convened for the purpose of deciding a nonconstitutional question would extend rather than limit the scope of Section 2281. If the suit is not one required to be heard by a three- judge court under 28 U. S. C. Sec. 2281, a direct appeal to this Court may not be taken under 28 U. S. C. — 23 Sec. 1253. Stainback v. Mo Hock Ke Lok Ho, 336 U. S. 368; Phillips v. United States, 312 U. S. 246. Where a three-judge court is erroneously convened, the ap peal from its final judgment must be taken to the appropriate court of appeals. Stainback v. Mo Hock Ke Lok Po, 336 IT. S. 368 at 380, 381; Phillips v. United States, 312 IT. S. 246 at 254. Appellants have not taken an appeal to the Court of Appeals for the Ninth Circuit. Since there is no case pending in the Court of Appeals, the appeal may not be considered as a petition for certiorari, as was done in Stainback v. Mo Hock Ke Lok Po, 336 IT. S. 368. There is no statutory authority for review of a district Court case by writ of certiorari. Since the case is not one for which a court of three judges is prescribed under 28 IT. S. C. Sec. 2281, no appeal lies to this court and it is without jurisdiction to hear the merits of the appeal. Smith v. Wilson, 273 IT. S. 388.® 6 In Parker v. Brown, 317 U. S. 341 (1943), the Court accepted a direct appeal from a district court in a case which joined an attack on a state regulation on the ground of its unconstitu tionality under the Commerce Clause, with a charge that the regulation was in conflict with a federal statute. However, the briefs filed in the case show that the parties assumed, without argument, the appellate jurisdiction of the Court. See records in Parker v. Brown, No. 46, October Term 1942; 10 L. W. 3347. The opinion of the Court on this point merely recites ‘ ‘ The case was tried by a district court of three judges and comes here on appeal under Sections 266 and 238 of the Judicial Code as amended, 28 U. S. C. Sections 380, 345 (now 28 U. S. C. 2281 and 1252 and 1253).” Parker v. Brown, 317 U. S. 341, 344-345. As said by Mr. Justice Sutherland in Webster v. Fall, 266 U. S. 507, 511: “ The most that can be said is that the point was in the cases if anyone had seen fit to raise it. Questions which merely lurk in the record, neither brought to the attention of the Court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.” Even more pertinent is the 24 li. Appellants’ Case Fails to Show the Existence of a Case or Controversy. There is no justiciable “ controversy” under Article I I I of the Constitution unless the controversy between the parties is definite and concrete. “ It must be a real and substantial controversy admitting of specific re lief through a decree of a conclusive character, as dis tinguished from an opinion advising what the law would be upon a hypothetical state of facts.” Aetna Life Ins. Co. v. Haworth, 300 U. S. 227, 240-241. The judicial power does not extend to the determination of abstract questions. Ashwander v. Valley Authority, 297 U. S. 288, 324. Claims based upon potential inva sions of rights are not enough to warrant judicial in tervention. Arizona v. California, 283 IT. S. 423, 462. It is also fundamental that an action in the federal courts against a state official charged with enforcing a statute is barred by the Eleventh Amendment unless brought against him in his individual capacity, and must be based upon an allegation of a wrong that he has individually done. Fitts v. McGhee, 172 U. S. 516, 529-530. As stated by Mr. Justice Peckham in Ex parte Young, 209 II. S. 123, 159-160, with regard to the immunity from suit of a state officer attempting to enforce an unconstitutional statute: “ * * * the of ficer in proceeding under such enactment comes into - statement by Chief Justice Marshall: “ No question was made, in that ease, , as to the jurisdiction. It passed sub silentio, and the Court does not consider itself as bound by that case.” United States v. More, 3 Cranch. 159 at 172, quoted in New v. Okla- 25 conflict with the superior authority of that Constitu tion, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct.” The case then presents this picture: Appellants de sire in the future to market avocados in California which may not comply with California law. They have never actually done so (PI. Ex. 17, R. 436, 230; PL Ex. 21, R. 439, 286). In the past appellants freely sold a very high percentage of their avocados transported to California markets (supra at 5). The few lots which did not meet the California standard were vol untarily transshipped and sold in neighboring western markets (PI. Ex. 17, R. 436, 230; PI. Ex. 21, R. 439, 286). These circumstances show that appellants’ real grievance is with the state statute, not personally against the appellee state officer. Appellants make no claim of personal wrongdoing against appellee regard ing the past shipments to California, and these trans actions are closed. Neither do appellants allege a con troversy over any current shipments. There being no existing controversy with any state officer, the case must fail. For in the absence of a personal wrong, a state officer may not be sued in a representative capa city in order to test the constitutionality of a state statute. This device “ * * * would be a very con venient way for obtaining a speedy judicial determi nation of questions of constitutional law which may be raised by individuals, but it is a mode which cannot be applied to the States of the Union consistently with the fundamental principle that they cannot, without their assent, be brought into any court at the suit of private persons.” Fitts v. McGhee, 172 U. S. 516, 530; Ex parte Young, 209 II. S. 123, 157. Appellants’ complaint alleges that “ some of the highest grade Florida avocados, when fully mature, have oil content of less than 6 percent and as low as 2 percent . . .”, and that “ . . . most Florida avocados, at the time of picking permitted by the applicable laws and regulations of the United States . . . have oil content of less than the 8 percent made prerequi site to sale in California . . .” [R. 12-13].7 No claim is made that any of the alleged low oil content varie ties of avocados have been shipped to California, and over 95 percent of the varieties actually shipped were found upon inspection to comply with the state law (PL Ex. 17, R. 436, 230; PI. Ex. 19, R. 438, 247-248; PI. Ex. 20, R. 438, 283; D. Ex. S., R. 445-447, 296). Thus, appellants’ fears relate to the hypothetical ac tion which appellee may take if and when appellants ship their allegedly low oil content varieties of avo cados to California. As Mr. Justice McKenna stated in Lehon v. Atlanta, 242 U. S. 53, 56: “ To complain of a ruling one must be made the victim of it. One cannot invoke to defeat a law an apprehension of what might be done under it and, which if done, might not receive judicial approval.” Appellants’ case is too contingent and speculative to meet the test of justiciability. Appellants are in much — 26 — 7 Appellee’s answer denies these allegations (R. 27). 27 the same position as the federal employees in United Public Workers v. Mitchell, 330 U. S. 75, who sued to enjoin the Civil Service Commission from enforc ing the Hatch Act and for a declaratory judgment holding the act unconstitutional. The federal em ployees involved, except one Pool, declared their de sire to engage in political activity proscribed by the act, but had not actually done so. The court held that no case or controversy existed because the absence of actual violations rendered the threat of dismissal or discipline to be hypothetical, not actual. Similarly, appellant corporations merely declare their desire to market avocados in California which may not comply with California law. They have not actually done so. They have in the past successfully sold a very high percentage of their avocados in Cali fornia markets and have reshipped the few lots that did not meet the California standard to neighboring western markets. Ho threatened interference with ap pellants’ rights appears beyond that implied by the existence of the statute. A general threat that officers will enforce the laws they are charged to administer is not sufficient to create a justiciable controversy. United Public Workers v. Mitchell, 330 IT. S. 75, 88. Appellants’ case is distinguishable from Evers v. Dwyer, 358 IT. S. 202, relied on by appellants. The plaintiff in Evers v. Dwyer, a Hegro, immediately vio lated the Memphis segregation ordinance at the mo ment he seated himself in the front portion of the public bus. At this point the justiciable controversy 28 came into existence. The facts which would form the basis of the litigation were fixed and would never be more concrete. Regardless of how many times the plaintiff boarded a Memphis bus, his racial identity under the ordinance would he unchanged. Appellant corporations, on the other hand, have not violated the California law. Moreover, there are no concrete facts to shape a justiciable dispute because appellants have reshipped to other markets the few lots of avocados which have failed to meet the 8 per cent oil standard. Appellants seek to enjoin the en forcement of the California statute as to future shipments. But it is a matter of speculation whether the avocados in such future shipments will have in sufficient oil content under the statute. Certainly ap pellants’ past experience indicates a high probability that future shipments will he marketed freely in California (supra at 5). Only if appellants refuse to either transship or to recondition a specific lot which fails to meet the statutory standard, thereby giving rise to a specific dispute with the state or county agricultural inspectors, will the facts be as concrete as in Evers v. Dwyer, 358 U. S. 202. Realistically, appellants are seeking to establish a defense against state action which they fear that ap pellee may in the future assert against them in the California courts. Cf. Public Service Comm’n v. Wycoff, 344 U. S. 237, 248; Pub. Util. Comm’n v. United Air Lines, 346 U. S. 402. In the posture of their case, appellants’ argument is with the state stat 29 ute, not with the appellee. I t is not the action of the appellee, but the appellants’ fears, which hinder their marketing of avocados in California. “ The fact that the plaintiff’s desires are thwarted by its own doubts, or by the fears of others, does not confer a cause of action.” Willing v. Chicago Auditorium, 277 U. S. 274, 289-290. Should a California county agricultural commis sioner or a state inspector interfere in the future with one of appellants’ shipments to California, an actual controversy involving a fixed factual situation will exist, and appellants will have available to them ample legal remedies in the state courts to test the validity of the statute. The court, would have before it a concrete set of facts which would limit the scope of the legal determination, would aid in the formula tion of the precise constitutional issue to be decided, and would add to its weight as precedent. These con siderations compel the conclusion that appellants’ ease, by reason of its uncertainty, fails to show the existence of a controversy with appellee under Constitution, Article III. III. Appellants’ Case is Not Within the Equity Jurisdiction of the District Court. The principal ground for appellee’s motion to dis miss below was that appellants did not meet the “ strict test” (American Federation of Labor v. Wat son, 327 IT. S. 582, 593) of great and immediate irre parable harm which a litigant must satisfy before a federal court will exercise its powers of equity to — 30 interfere with the enforcement of state laws. E.g., Spielman Motor Co. v. Dodge, 295 U. S. 89, 95; Douglas v. J eannette, 319 U. S. 157, 164. This ground for dismissing the action assumes the existence of a justiciable controversy which the dis trict court has authority to hear and decide. I t raises the further question whether the district court should exercise its equitable powers, which of course are dis cretionary in nature. American Federation of Labor v. Watson, 327 U. S. 582, 593; Pennsylvania v. Williams, 294 II. S. 176, 185; Meridian v. Southern Bell Telephone & Telegraph Co., 358 U. S. 639. The district court below, by deciding that no case or con troversy existed, did not reach the subsidiary question whether appellants had shown sufficient equity to warrant the exercise of the court’s jurisdiction. If it were decided that a case or controversy under Article I I I is present, the question would he open to the district court whether it should exercise its discretion ary powers of equity. The nub of appellee’s argument that the action should be dismissed for lack of equity is simply that appellants are not sufficiently affected by the Cali fornia avocado maturity law to warrant the interfer ence by a federal court of equity with its enforcement. The evidence presented by appellants’ principal cor porate officers, which appellee accepted as true for the purpose of the motions to dismiss, show convinc ingly that the statute under attack has only a slight effect on appellants’ business operations. See pages 5 to 7, supra. Over 96 percent of all avocados shipped 31 by appellants to California complied with the statute and were freely marketed in California. [PL Ex. 17, R, 436, 230; PL Ex. 19; R. 438, 247-248; Pl. Ex. 20, R. 438, 283; Pl. Ex. 21, R. 439, 286.] The few lots that failed to comply with the California maturity standards were not lost to appellants. They were trans shipped to other western markets outside California at claimed losses which are almost de minimus relative to the volume of appellants’ business operations. See pages 5 to 7, supra. C.f., Alabama v. Arizona, 291 LI. S. 286, 292. In the view of appellee, this hardly constitutes the kind of “ irreparable injury” both “ great and imme diate” which should prompt the federal chancellor to interfere with the enforcement of state laws. Spielman Motors Co. v. Dodge, 295 U. S. 89, 95. Appellee’s position is supported by such Supreme Court cases as Spielman Motor Co. v. Dodge, 295 IT. S. 89, and Douglas v. Jeannette, 319 U. S. 157. The Court in all these cases has recognized the extraordinary nature of a remedy that interferes with the enforce ment of state laws by state officials. The policy of cau tion followed by federal courts in this type of case was stated eloquently by Mr. Justice Cardozo in Hawks v. Hamill, 288 IT. S. 52, 61: “ Only a case of manifest oppression will justify a federal court in laying such a cheek upon administrative officers act ing colore officii in a conscientious endeavor to fulfill their duty to the state. A prudent self-restraint is called for at such times if state and national functions are to be maintained in stable equilibrium. Reluctance 32 there has been to use the process of federal courts in restraint of state officials though the rights asserted by the complainants are strictly federal in origin. (Cases cited.)” Mr. Chief Justice Hughes noted that only in “ ex ceptional circumstances” would a federal court exer cise its equitable powers against the enforcement of state laws. Spielman Motor Go. v. Dodge, 295 IT. S. 89, 95. Mr. Justice Douglas has observed that it is a “ strict test” that must be satisfied. American Federa tion of Labor v. Watson, 327 IT. S. 582, 593. The recent case of Doud v. Hodge, 350 IT. S. 485, contains a factual picture that contrasts sharply with the position of appellant corporations. In Doud v. Hodge, the plaintiff’s business consisted exclusively of selling and issuing money orders in the State of Illinois, through such agents as retail drug, hardware and grocery stores. Plaintiff’s entire business was regulated and affected by the statute under attack, and plaintiff could not conduct his business operation in any respect without violating the statute. By contrast, appellant corporations have operated their entire businesses without ever having violated the California statute, the enforcement of which they have asked a federal court to enjoin. The picture pre sented by appellants, even when stated favorably to them, is as follows: In one of their markets—Calif or- nia—appellants have marketed a substantial volume of one of their products—avocados-—but hesitate to increase that volume with fruit from Florida that 33 may not meet the California avocado maturity law. Instead of showing great and immediate irreparable injury, appellants’ case looks to possible future harm. This concern is suggested by appellants’ Jurisdic tional Statement, in which they anticipate detriment as “ avocado trees planted in Florida in recent years come into fruition.” (Jurisdictional Statement, p. 15) Neither appellants, nor any other Florida handler, had made any commercial shipments of Florida avo cados to California during the period from March 1, 1958, to February 5, 1959.8 Affidavit of Whipple, Ex hibit “ A ” to appellee’s opposition to appellants’ mo tion to amend complaint. [R. 102.] I t is significant that appellants have never applied for interlocutory relief during the two years that have elapsed since they filed their complaint. This is a further indication that appellants are not suffering the kind of immediate injury which will prompt a federal court to exercise its equitable powers in a suit to enjoin public officers from the enforcement of a state law. Adequate remedies other than a request for injunc tive relief by a federal district court of three judges, with all its burden on the federal judiciary, have been and now are available to appellants. For ex ample, if a justiciable controversy exists, appellants could have sought declaratory relief in the Superior Court of the State of California. Lord v. Garland, 8 Appellants indicate that the reason there have been no avocado shipments to California recently is that the 1957-1958 crop of Florida avocados was disposed of by March 1, 1958, and that the winds and frosts of early 1958 deeimated the 1958-1959 crop. Appellants’ Answer to Motion to Dismiss or Affirm, fn., p. 5. 34 27 Cal. 2d 840, 168 P. 2d 5. Under this remedy, ap pellants are entitled to an expeditious hearing of their ease. (California Code of Civil Procedure See. 1062a.) Indeed, if a case or controversy exists, appellants could seek declaratory relief without an injunction from a single federal district judge under 28 U. S. C. 2201. Moreover, at any time that appellants were given notice by California law enforcement officers that a given lot of avocados was in noncompliance with the 8 percent oil law, appellants could have taken immedi ate action to challenge the California law in a con crete factual context. See procedure authorizing court order releasing seized shipments in California Agri cultural Code Section 785. By transshipping noncom plying fruit to other western markets, appellants have intentionally avoided a test of the validity of the California avocado maturity statute. Appellants’ case simply does not show the existence of equity jurisdic tion in the district court. — 35 — CONCLUSION For the reasons stated it is respectfully submitted that this court lacks jurisdiction of the case, and that the appeal must be dismissed. If jurisdiction exists, the judgment of dismissal by the court below is cor rect and should be affirmed. S tanley Mosk Attorney General of the State of California J ohn F oukt Deputy Attorney General of the State of California Attorneys for Appellee — 37 — APPENDIX A California Agricultural Code, Section 784: “ I t is unlawful to prepare, pack, place, deliver for shipment, deliver for sale, load, ship, transport, cause to be transported or sell any fruits, nuts, or vegetables in bulk or in any container or subcontainer unless such fruits, nuts and vegetables, and their containers, conform to the provisions of this chapter.” California Agricultural Code, Section 785: “ Any lot of fruits, nuts or vegetables, including the containers thereof, which is not in compliance in all respects with the provisions of this chapter and rules and regulations issued hereunder, is hereby declared to be a public nuisance. Any enforcing offi cer, if he has reason to believe that any such lot is not in compliance as aforesaid, may hold such lot pending proceedings to condemn and abate such nuisance, as herein provided. The officer may affix to any lot so held a tag or notice warning that the lot is held and stating the reasons therefor. I t is unlawful for any person other than an authorized enforcing officer to detach, alter, deface or destroy any such tag or notice affixed to any such lot, or to remove or dispose of such lot in any manner or under conditions other than as pre scribed in such tag or notice, except upon written permission of an authorized enforcing officer or by order of court. — 38 The officer by whom any such lot is held shall cause notice of noncompliance to be served upon the person in possession of said lot. The notice of noncompliance shall include a description of the lot, the place where and the reasons for which it is held, and shall give notice that said lot is a public nuisance and subject to disposal as provided in this section, unless within a specified time said lot shall have been reconditioned or the deficiency otherwise corrected so as to bring said lot into compliance. If the person so served is not the sole owner of the lot, or does not have authority as agent for the owner to bring said lot into compliance, it shall be the duty of such person in writing to notify the officer by whom such lot is held of the names and addresses of the owner or owners and all other persons known to him to claim an interest in said lot, Any person so served shall be liable for any loss sustained by such owner or other person whose name and address he has knowingly concealed from such officer. If the lot has not been reconditioned or the de ficiency otherwise corrected so as to bring said lot into compliance within the time specified in the no tice, then the enforcing officer shall cause a copy of said notice to be served upon all persons designated in writing by the person in possession of said lot to be the owner or to claim an interest therein. Any notice required by this section may be served per sonally or by mail addressed to the person to be served at his last known address. 39 The enforcing officer, with the written consent of all such persons so served, is hereby authorized to destroy such lot or otherwise to abate the nuisance. I f any such person fails or refuses to give such con sent, then the enforcing officer shall proceed as pro vided hereinafter. If the lot so held is perishable or subject to rapid deterioration, the enforcing officer may file a verified petition in any superior or inferior court of the State to destroy such lot or otherwise abate the nuisance. The petition shall show the condition of the lot, that the lot is situated within the county, that the lot is held, and that notice of noncompliance has been served as herein provided. The court may thereupon order that such lot be forthwith destroyed or the nuisance otherwise abated as set forth in said order. If the lot so held is not perishable nor subject to rapid deterioration, the enforcing officer shall imme diately report the condition of said lot to the director. Within five (5) days from the receipt of such report, the director may file a petition in the superior court in the county where the lot is situated for an order to show cause, returnable in five (5) days, why the lot should not he abated. The owner or person in posses sion on his own motion within five (5) days from the expiration of the time specified in the notice of non- compliance may file a petition in said court for an order to show cause, returnable in five (5) days, why said lot should not be released to petitioner and any warning tags previously affixed removed therefrom. 40 — Final determination by said court in either case shall be within a period of not to exceed twenty (20) days from the date said petition was filed. The court may enter judgment ordering that said lot be condemned and destroyed in the manner di rected by the court or relabeled, or denatured or other wise processed, or sold or released upon such condi tions as the court in its discretion may impose to insure that the nuisance will be abated. In the event of sale by order of court, the costs of storage, handling and reconditioning or disposal shall be deducted from the proceeds of sale and the balance, if any, paid into court for the owner.” California Agricultural Code, Section 785.6: “ Any person who violates any provision of this chapter shall, in addition to any penalty otherwise provided, be liable civilly, in an action brought by the director, for a penalty in an amount equal to the value which the fruits, nuts, or vegetables involved in the violation would have if they conformed to the re quirements of this chapter. The value of such non complying fruits, nuts and vegetables shall be the current market value of the lowest priced grade of a marketable commodity of like kind and nature at the time and place of the violation. Any money recovered under this section shall be paid into the Department of Agriculture Fund.” — 41 — California Agricultural Code, Section 792: “ Avocados shall be free from all defects, including but not restricted to those hereinafter mentioned, which singly or in the aggregate cause a waste of 10 per cent or more by weight, of the entire avocado, including the skin and seed. Not more than 5 per cent, by count, of the avocados in any one container or bulk lot may be below the foregoing requirement. “ ‘Defect’ includes damage due to insect injuries, freezing injury, decay, rancidity, or other causes. “ All avocados, at the time of picking, and at all times thereafter, shall contain not less than 8 per cent of oil, by weight of the avocado excluding the skin and seed.” California Agricultural Code, Section 831: “ The violation of any of the provisions of this chapter is a misdemeanor and punishable by a fine of not less than fifty dollars ($50) nor more than five hundred dollars ($500), or by imprisonment in the county jail for not more than six months, or by both.” California Administrative Code, Title 3, Section 1366.2: “Disposition at Inspection Stations of Lots or Loads Which Fail to Comply. (a) Produce which fails to comply and which has originated in California may go to a location in Cali fornia (not out-of-state) under proper written au thorization of the enforcement officer, provided it goes 42 to a specified person or firm at that location, and that legal disposition at destination is performed under the direction of an enforcement officer at destination. (b) Produce which fails to comply, and which origi nated outside California, may go to an out-of-state location; (1) if the lot or load returns to an out-of- state destination, or (2) proceeds through California, without unloading, to an out-of-state destination; in these two instances reconditioning or remarking is not necessary. However, if such load or lot of produce is to proceed to a California destination, it may do so only under proper written authorization of the Cali fornia enforcement officer, and provided the destina tion is a specified person or firm at a California location, and that legal disposition at destination is performed under the direction of an enforcement officer at said destination. In the case of (2) above of this section, such load or lot may be transported through California only Tinder proper written authorization of the California enforcement officer, and provided an enforcement officer at the border station at the exit location is notified. (c) A rejected lot or load may be reconditioned or re-marked, whichever is necessary to provide com pliance, at the station, provided this is accomplished within a reasonable time specified by the enforcement officer, and when reconditioned, the lot is again sub mitted for inspection.” 43 California Administrative Code, Title 3, Section 1397.6: “Avocados, Sample for Maturity Test. The num ber of containers to be selected from any lot of avo cados for the purpose of making a maturity test shall be as follows: Amount Sample Containers 50 containers or less________________ 2 51 to 100_ 101 to 200_ 201 to 300_ 301 to 400_ 401 to 50CL 501 to 800_ 800 and up 4 5 6 7 9 10 From each sample container select the least mature appearing avocado, provided the sample for testing shall be at least 5 fru its; if there are less than 5 con tainers as the number of containers required, more than 1 avocado will need to be selected from some of the containers. From the sample fruits selected for testing, indi vidually test the 3 least mature appearing avocados. When 2 of these 3 tests are 8 percent oil or better, and 1 of the tests shows less than 8 percent but not below 7.5 percent, 2 additional least mature appearing avocados from the sample shall be tested. In order to allow for variations incident to the sam pling and testing procedure, no lot shall be considered —- 44 as failing to meet the maturity requirements when only 1 avocado of the sample tests less than 8 percent oil, provided said low-test fruit does not test below 7.5 percent oil, and the other fruits in the sample each show 8 percent oil or better. (Rev. 5/57)” 0