Florida Lime and Avocado Growers, Inc. v. Jacobsen Appellee's Brief

    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