author: PERRY, Senior District Judge. PELL, Circuit Judge

text:
    HOLIDAY MAGIC, INC., a foreign corporation, et al., Plaintiffs-Appellants, v. Robert W. WARREN et al., Defendants-Appellees.
    No. 73-1511.
    United States Court of Appeals, Seventh Circuit.
    Argued Jan. 23, 1974.
    Decided May 20, 1974.

      David L. Walther, Milwaukee, Wis., for plaintiffs-appellants.
    Robert W. Warren, Atty. Gen., Bruce A. Craig, Asst. Atty. Gen., Madison, Wis., and E. Michael McCann, Milwaukee, Wis., for defendants-appellees.
    Before SWYGERT, Chief Judge, PELL, Circuit Judge, and PERRY, Senior District Judge.

       Senior District Judge Joseph Sam Perry of the Northern District of Illinois is sitting by designation.

   PERRY, Senior District Judge.

In this appeal, plaintiffs-appellants seek a review of the refusal by a district judge to request the convening of a three-judge court and of the dismissal of their complaint for lack of jurisdiction.

The complaint attacks Ag 122, a general order of the Wisconsin Department of Agriculture (“regulation”), which prohibits chain distributor schemes as an unfair trade practice. Plaintiff corporations allege they were charged in Wisconsin state court actions with “promoting” such schemes in violation of the regulation. Joined by the individual plaintiff, they then brought suit in the United States District Court for the Eastern District of Wisconsin to enjoin the enforcement of the state regulation and to have it declared unconstitutional. Plaintiffs contend, that “promotion” necessarily involves some protected speech and, among other things, that the regulation is overbroad and sweeps into constitutionally protected areas of free speech and association, thereby violating plaintiffs’ First and Fourteenth Amendment rights. They argue their constitutional claims present a substantial constitutional question requiring the convening of a three-judge court.

Defendant state officials opposed plaintiffs’ request for the convocation of a three-judge panel and moved to dismiss the complaint. The District Court judge in an Opinion and Order concluded the plaintiffs’ constitutional claims were insubstantial and that he, therefore, was prohibited from requesting the convening of a three-judge court and was required to dismiss the complaint for lack of jurisdiction.

This court has jurisdiction to review the action of a one-man district court in dismissing a complaint instead of taking steps to convene a three-judge court. Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962); Schackman v. Arnebergh, 387 U.S. 427, 87 S.Ct. 1622, 18 L.Ed.2d 865 (1967); Money v. Swank, 432 F.2d 1140 (7th Cir. 1970); Hargrave v. McKinney, 413 F.2d 320 (5th Cir. 1969); see also C. Wright, The Law of Federal Courts (2nd ed. 1970) at 193 and D. Currie, Appellate Review of the Decision Whether or Not to Empanel a Three-Judge Federal Court. 37 U.Chi.L.Rev. (1969-70).

Although we can review, the question before this court is a narrow one. The constitutionality of the state regulation is not before this court. Nor should this court consider the facts and circumstances which surround appellants’ efforts to promote chain distributorships, nor the alleged violations of the state regulation. If the federal claims are substantial, the issues and the merits are for consideration by a three-judge panel and this court does not express any opinion as to the ultimate resolution of the issues. Although this court is precluded from reviewing on the merits, it is not “powerless” to give guidance. Idlewild, supra, citing Stratton v. St. Louis S. W. Ry., 282 U.S. 10, 51 S.Ct. 8, 75 L.Ed. 135. Our function is to review the allegations of the complaint to determine whether a substantial federal constitutional question is presented and whether there is a question fairly open to debate which would entitle plaintiffs to the three-judge relief requested.

The case at bar came on upon a motion for a temporary restraining order, which the district judge denied. He then set a briefing schedule and the motions for the convening of a three-judge court and to dismiss were argued together in the court below.

The district judge in his opinion held, in effect, that Ag 122 was not unconstitutional, did not violate freedom of speech, was not void for vagueness, did not constitute undue burden on interstate commerce, did not intrude into an area preempted by the federal government, did not impair the obligation of contract, did not violate an individual’s right to work and did not result in discriminatory enforcement.

Although he found there was not

a substantial constitutional question raised, by the scope of his opinion he went to the merits and in effect entered a declaratory judgment. By such an opinion and his dismissal of plaintiffs’ cause there is inescapably a determination by him that the regulation here in question is constitutionally valid and a determination as to injunctive relief. If federal jurisdiction exists he exceeded his authority. We find here it does exist and thus the single judge erred in holding that a three-judge court was not required and “erroneously invaded” the province of a three-judge court. We, therefore, are directing a three-judge court be convened to consider this litigation. Ex parte Northern Pac. R. Co., 280 U.S. 142, 144, 50 S.Ct. 70, 74 L.Ed. 233 (1929); Stratton v. St. Louis S. W. R. Co., 282 U.S. 10, 15, 51 S.Ct. 8, 75 L.Ed. 135 (1930); Idlewild, supra; Schneider v. Rusk, 372 U.S. 224, 225, 83 S.Ct. 621, 9 L.Ed.2d 695 (1963).

For his authority to dismiss the single judge relied on Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152 (1933). In Poresky, at page 32, the Supreme Court said:

The existence of a substantial question of constitutionality must be determined by the allegations of the bill of complaint. Mosher v. City of Phoenix, 287 U.S. 29, 30, 53 S.Ct. 67, 77 L.Ed. 148; Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105, 53 S.Ct. 549, 550, 77 L.Ed. 1062. The question may be plainly unsubstantial, either because it is “obviously without merit” or because “its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the question sought to be raised can be the subject of controversy.” Levering & Garrigues Co. v. Morrin, supra; Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288, 30 S.Ct. 326, 54 L.Ed. 482; McGilvra v. Ross, 215 U.S. 70, 80, 30 S.Ct. 27, 54 L.Ed. 95.
While it is appropriate that a single District Judge to whom application is made for an interlocutory injunction restraining the enforcement of a state statute should carefully scrutinize the bill of complaint to ascertain whether a substantial question is presented, to the end that the complainant should not be denied opportunity to be heard in the prescribed manner upon a question that is fairly open to debate, the District Judge clearly has authority to dismiss for the want of jurisdiction when the question lacks the necessary substance and no other ground of jurisdiction appears ....

Section 2281 of Title 28 U.S.C., provides :

An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes, shall not be granted by any district court or judge thereof upon the ground of the uneonstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title.

It calls for the collective judgment of three judges when a plaintiff seeks upon constitutional grounds to enjoin the enforcement of state statutes by state officers or of orders by administrative bodies acting under state statutes. See § 52, 1 Barron & Holtzoff, Federal Practice and Procedure at 277 (Rules Ed. 1960). The purpose of the requirement for the hearing of the application for injunction is to prevent the improvident invalidation of state legislation by the action of a single judge. Moody v. Flowers, 387 U.S. 97, 101, 87 S.Ct. 1544, 18 L.Ed.2d 643 (1967).

Under the original three-judge act of 1910 all applications for interlocutory injunctions restraining the enforcement of allegedly unconstitutional statutes had to be “heard and determined” by a three-judge court. Early cases, such as Ex parte Metropolitan Water Co. of West Virginia, 220 U.S. 539, 31 S.Ct. 600, 55 L.Ed. 575 (1911), and Ex parte Northern Pac. R. Co., 280 U.S. 142, 50 S.Ct. 70, 74 L.Ed. 233 (1929), held that a single judge could not dismiss on the merits when such injunctive relief was sought.

However, in several decisions which followed, the Supreme Court held a single judge did, indeed, possess certain discretionary powers. Thus, in a 1933 case, Poresky, supra, the Supreme Court held that under § 266, the predecessor of Title 28 U.S.C. § 2281, a single judge could dismiss for want of jurisdiction and that jurisdiction was lacking if the constitutional question raised was insubstantial. In a 1938 decision, California Water Service Co. v. City of Redding, 304 U.S. 252, 255, 58 S.Ct. 865, 867, 82 L.Ed. 1323, the Supreme Court held that lack of substantiality in a federal question “may appear either because it is obviously without merit or because its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject”.

In 1942 the three-judge statute was amended and one of the provisions then added (now codified as 28 U.S.C. § 2284(5)) states that a single judge “shall not . . . hear and determine any application for an interlocutory injunction or motion to vacate the same, or dismiss the action, or enter a summary or final judgment”. The language itself seems to suggest that it was intended to overrule the Poresky doctrine. However, some courts continued to follow the holding in Poresky, apparently without express reference to the 1942 amendment. See e. g., Eastern States Petroleum Corp. v. Rogers, 105 U.S.App.D.C. 219, 265 F.2d 593, 595-597, mandamus den., 361 U.S. 805, 80 S.Ct. 93, 4 L.Ed.2d 56 (1959); Carrigan v. Sunland-Tujunga Telephone Company, 263 F.2d 568 (9th Cir. 1959). In a 1962 case, Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512, the Supreme Court approved the converse doctrine to that in Poresky and held that a single judge may not convene a three-judge court when the defense of constitutionality is frivolous.

In a later 1962 case, Idlewild, supra, the Supreme Court set forth what appears to be the present limits on a single judge’s power when application is made to him for a three-judge court:

When an application for a statutory three-judge court is addressed to a district court, the court’s inquiry is appropriately limited to determining whether the constitutional question raised is substantial, whether the complaint at least formally alleges a basis for equitable relief, and whether the case presented otherwise comes within the requirements of the three-judge statute.

The Court there went on to say that if those criteria are met it is “impermissible for a single judge to decide the merits of the case, either by granting or by withholding relief”. Since our jurisdiction is no greater than that of the district judge, we too must look to the allegations of the complaint and at the regulation challenged.

The state regulation in question here was issued by the Wisconsin Department of Agriculture pursuant to authority vested in the Department of Agriculture by § 100.20 of the Wisconsin statutes.

It provides:

Ag 122.01 Unfair trade practice. The promotional use of a chain distributor scheme in connection with the •solicitation of business investments from members of the public is an unfair trade practice under section 100.-20, Wis.Stats. When so used the scheme serves as a lure to improvident and uneconomical investment. Many small investors lack commercial expertise and anticipate unrealistic profits through use of the chance to further perpetuate a chain of distributors, without regard to actual market conditions affecting further distribution and sale of the property purchased by them or its market acceptance by final users or consumers. Substantial economic losses to participating distributors have occurred and will inevitably occur by reason of their reliance on perpetuation of the chain distributor scheme as a source of profit.
Ag 122.02 Definitions. (1) “chain distributor scheme” is a sales device whereby a person, upon a condition that he make an investment, is granted a license or right to recruit for profit one or more additional persons who also are granted such license or right upon condition of making an investment and may further perpetuate the chain of persons who are granted such license or right upon such conditions. A limitation as to the number of persons who may participate, or the presence of additional conditions effecting eligibility for the above license or right to recruit or the receipt of profits therefrom, does not change the identity of the scheme as a chain distributor scheme.
(2) “Investment” is any acquisition, for a consideration other than personal services of personal property, tangible or intangible, for profit or business purposes, and includes, without limitation, franchises, business opportunities and services. It does not include real estate, securities registered under chapter 551, Wis.Stats., or sales demonstration equipment and materials furnished at cost for use in making sales and not for resale.
(3) “Person” includes partnerships, corporations and associations.
Ag 122.03 Prohibition. No person shall promote, offer or grant participation in a chain distributor scheme.
Ag 122.04 Statutory exemption. This chapter does not apply to banks, savings and loan associations, insurance companies and public utilities to the extent exempted from department regulations under section 93.01(13), Wis.Stats.

Persons violating an order issued under Section 100.20 are subject to a fine of not less than $25 nor more than $5,000 and to imprisonment of not more than one year. Wis.Stats. § 100.26(3). Violating an injunction issued pursuant to § 100.20(6) subjects a person to a civil forfeiture of not less than $100 nor more than $10,000. Wis.Stats. § 100.-26(6).

The legality of Ag 122 has been tested and its constitutionality upheld by the Wisconsin Supreme Court in HM Distributors of Milwaukee, Inc. v. Dept. of Agr., 55 Wis.2d 261, 198 N.W.2d 598. Plaintiffs in their “statement of facts” before this court state: “Defendants herein have charged plaintiffs, inter alia, with ‘promoting’ a chain distributor scheme. Actions have been commenced by defendants herein both to restrain such promotion, among other things, by such plaintiffs, and to criminally prosecute others for such promotion.” Defendants state: “All appellants, with the exception of Dale A. Schmidt, have been civilly charged with violations of Ch. Ag 122. Appellant Golden Products has been found in violation of Ch. Ag 122 in State v. Golden Products, Circuit Court, Walworth County, Case No. 16887. Cases against the other two appellants are pending.” It also appears from the record that appellant Holiday Magic, Inc. has been charged before the Federal Trade Commission with alleged unfair trade practices. In the Matter of Holiday Magic, Inc. William Penn Patrick, individually and as Chairman of the Board of Directors of Holiday Magic, Inc., and individually, and Fred Pape and Janet Gillespie, individually, Federal Trade Commission, Docket No. 8834.

Plaintiffs allege their action arises under the Constitution of the United States, Article I, Sections 8 and 10; the First, Fifth and Fourteenth Amendments to the Constitution and Title 42 U.S.C. § 1983. Plaintiff corporations allege they are essential parties to the action because the enforcement of the regulation “greatly affects” their business and marketing plans, “pursued in the normal course of their business in interstate commerce,” and that the actions taken to enforce the order “are taken, have been taken, are threatened to be taken” against their distributors and those marketing their products and that plaintiffs are “thus directly damaged by said action.” The individual plaintiff alleges he is a distributor of Holiday Magic products and that his business and marketing plan are greatly affected by the enforcement of the regulation and that actions “are taken, have been taken and are threatened to be taken” against him.

A complaint should be liberally construed. When a motion to dismiss is made, well pleaded allegations must be taken as admitted. A complaint may be dismissed if clearly without merit but it should not be dismissed for insufficiency unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim. See generally, 2A J. Moore’s Federal Practice § 12.08. For Section 2281 to apply, “a state statute or administrative order must be challenged, a state officer must be a party defendant, injunctive relief must be sought, and it must be claimed that the statute or order is contrary to the Constitution of the United States”. Wright, Law of Federal Courts, 189 (1970). All of these pleading requirements are alleged in the complaint. It is the fourth of these which is in contention here — the existence of a substantial constitutional issue.

The complaint here need only formally allege a basis for equitable relief, Idlewild, supra\ and jurisdiction, upon the ground of a federal question, is determined by the allegations of the complaint and not by the way the facts turn out or by a decision on the merits. Mosher v. Phoenix, 287 U.S. 29, 30, 53 S.Ct. 67, 77 L.Ed. 148 (1932).

Whether or not plaintiffs can prove such allegations as “irreparable harm” and “chilling affect,” they are alleged on the face of the complaint. It is undisputed that plaintiff corporations are being sued for violations of Ag 122 in the state courts and they allege they are “threatened” with further actions. The regulation has been construed by the state’s Supreme Court and plaintiffs allege “no adequate remedy . . . obtains at law” and that “no court of federal jurisdiction has as yet addressed the federal question arising herein”.

A state has the power to regulate business to protect the public interest and defendants argue to this court that the validity and need for Chapter Ag 122 has been “unreservedly upheld" by both the trial court and Wisconsin Supreme Court in the H. M. Distributors case, supra. In that case the court found the Agriculture Department’s rules are not void for vagueness; that neither the right of a person to make investment nor constitutional freedom of speech was invaded by the Department’s rules prohibiting chain distributor schemes as unfair trade practices; and that the right of free speech does not extend to promoting products. Regardless of any personal reactions we may have to the merits of defendants’ position here, such a decision alone does not foreclose plaintiffs from challenging the regulation in a federal forum on constitutional grounds and seeking adjudication of their federal claims if they are substantial. First Amendment claims .are involved in this case and it has been held that the abstention doctrine is inappropriate where statutes have been justifiably attacked on their face as abridging free expression. Dombrowski v. Pfister, 380 U.S. 479, 489-490, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); Zwickler v. Koota, 389 U.S. 241, 248, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967). As the Supreme Court said in Zwickler, a federal court has a duty “to give due respect to a suitor’s choice of a federal forum for the hearing and decision of his federal constitutional claims,” and federal courts do not have the right to decline the exercise of jurisdiction “simply because the rights asserted may be adjudicated in some other forum”. Here as in Zwickler, the question of overbreadth is raised. In Zwickler it was held a statutory construction by the state courts would not avoid or modify the constitutional question. Zwickler, 389 U.S. 241, 248, 249.

Counsel have cited cases here in large volume. The defendants-appellees here have largely relied on the same cases as the single judge in his opinion that the claims of First Amendment protection of commercial speech in the instant case are insubstantial because of an “unbroken line of decisions”. Plaintiffs-appellants have argued to this court that the line of decisions is not an unbroken line and that the question raised here is open for future consideration. They argue the case must be decided on its own particular facts and “that when commercial speech has been clearly suppressed unless a very similar situation has been adjudicated, the constitutional claims raise a substantial issue”. Plaintiffs contend Ag 122 is “vague, arbitrary and uncertain as to prevent one from knowing whether or not his activities are proscribed”. They argue “overbreadth” and that “promotion” necessarily involves some protected speech and that the regulation fails to draw a distinction between mere advocacy and advocacy directed to incite to produce imminent lawless action. They argue that though some chains may be unlawful, there are some limited multi-level marketing systems which are not unlawful and that they seek to promote activity now by the state declared to be unlawful by an over-broad administrative regulation.

It appears to this court that the jurisdictional issues in this case are inextricably intertwined with the merits and that there are questions to be aired upon a hearing before a three-judge court. When there are issues fairly open to debate they should be left for development in a three-judge hearing and the merits assessed by three judges, not one. Whether or not plaintiffs’ activity is illegal and whether the regulation does or does not invade the area of their protected freedoms is not for this court to decide. We cannot decide if plaintiffs’ claims are good or bad. Nor are they questions for a single judge.

The single judge’s opinion indicates an extensive consideration of the arguments. the merits and a weighing of interests. We acknowledge it is difficult not to go to the merits in determining the jurisdictional issue. We would agree with the statement made by Chief Judge John R. Brown in a Fifth Circuit case that “[i]n this day and time of dynamic expansion of constitutional principles and their application to new and sometimes unheard of situations it takes prescience of a Delphic order to say with certainty” that an attack is insubstantial. Jackson v. Choate, 404 F.2d 910, 913 (5 Cir., 1968). There it was suggested “[i]t is the better course— certainly from an administrative standpoint — to forego the doubts, constitute a 3-Judge Court, and allow that court to determine initially this and the other issues”. By referring to the Jackson case we are neither approving of nor rejecting the Fifth Circuit’s approach of request-unless-no-doubt-at-all. The determination as to whether an issue is substantial does require a legal judgment and often the issue is clear either because the precise issue has been decided or because recent decisions of the Supreme Court strongly suggest the issue is foreclosed. But if a question is a difficult or close one, wasted effort can be avoided by prompt request by the single judge for the assistance of two additional judges.

The district judge misconceived his role in determining jurisdiction in this case and, in effect, decided the question of the constitutionality of the regulation rather than the question of whether a substantial question is presented. It is sometimes difficult to keep in mind the issue. The question here is not as the single judge saw it one of “whether Wisconsin may prohibit the promotion of chain distributor or ‘pyramid’ scheme without running afoul of certain provisions of the federal Constitution.” Nor is the issue before the single judge or this court whether Ag 122 is constitutional or unconstitutional. It is whether plaintiffs’ claim of uneonstitutionality is unsubstantial “either because it is obviously without merit or because its unsoundness so clearly results from previous decisions of this court [the Supreme Court] as to foreclose the subject.” California Water Service Co. v. City of Redding, supra. This is a preliminary determination to be made by a single judge. It does not allow a single judge to go to the merits or to allow his views regarding the ultimate merits to intrude upon his decision. Ex parte Northern Pac. R. Co., Stratton, Idlewild, supra. Poresky and Mosher, supra, say clearly the existence of the substantial question must be determined by the allegations of the complaint.

The Supreme Court recently reviewed concepts of constitutional insubstantiality where they arise in the context of convening a three-judge court under § 2281 in the case of Goosby v. Osser, 409 U.S. 512, 518, 93 S.Ct. 854, 858-859, 35 L.Ed.2d 36 (1973):

Title 28 U.S.C. § 2281 does not require the convening of a three-judge court when the constitutional attack upon the state statutes is insubstantial. “Constitutional insubstantiality” for this purpose has been equated with such concepts as “essentially fictitious,” Bailey v. Patterson, 369 U.S. [31], at 33 [82 S.Ct. 549, 551, L.Ed. 2d 512 (1962)]; “wholly insubstantial,” ibid; “obviously frivolous,” Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288, [30 S.Ct. 326, 327, 54 L.Ed. 482] (1910); and “obviously without merit,” Ex parte Poresky, 290 U.S. 30, 32, [54 S.Ct. 3, 4-5, 78 L.Ed. 152] (1933). The limiting words “wholly” and “obviously” have cogent legal significance. In the context of the effect of prior decisions upon the substantiality of constitutional claims, those words import that claims are constitutionally insubstantial only if the prior decisions inescapably render the claims frivolous; previous decisions that merely render claims of doubtful or questionable merit do not render them insubstantial for the purposes of 28 U.S.C. § 2281. A claim is insubstantial only if “ ‘its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy.’ ” Ex parte Poresky, supra, [290 U.S.,] at 32, 54 S.Ct., at 4; quoting from Hannis Distilling Co. v. Baltimore, supra, at 288, [30 S.Ct., at 327]; see also Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105-106 [53 S.Ct. 549, 550, 77 L.Ed. 1062] (1933); McGilvra v. Ross, 215 U.S. 70, 80, [30 S.Ct. 27, 31, 54 L.Ed. 95] (1909).

In Goosby the Supreme Court again reminded Courts of Appeals that they are without jurisdiction to adjudicate the merits of constitutional contentions. The Stratton rule is still good law. It was reaffirmed in Idlewild and referred to in Goosby. Thus, we are left here, figuratively, in a statutory strait jacket with little room to maneuver within the confines of the three-judge acts and the cases limiting our power. Our action is void if we review and incorporate equitable considerations in our decision. The single judge went beyond the complaint and became involved in the merits in determining the threshold question. Although he found the claims insubstantial, his exhaustive and scholarly opinion indicates there were not only many issues but some very complex ones raised in the complaint. Much of the argument made by counsel for the parties before this court would be more suitable in a hearing before a three-judge panel.

We have reviewed the allegations of the complaint and do not believe the constitutional attack therein made is so “obviously without merit” as to be insubstantial. We have looked at the case law in the area and believe there should be applied here the concept of insubstantiality as recently set forth in Goosby, supra. There the court said that claims are constitutionally insubstantial “only if the prior decisions inescapably render the claims frivolous; previous decisions that merely render claims of doubtful or questionable merit do not render them insubstantial for purposes of 28 U.S.C. § 2281”. If the single judge had to make such an extensive examination of the facts and claims in this case as he did in order to determine constitutional insubstantiality, we believe the case does not come within the rationale of those cases which hold three judges are not required.

It is not our intent to be overly technical about the single judge’s opinion and determination. We recognize and share in, the concern expressed by federal courts, the Administrative Office of the U. S. Courts, and legal scholars over the multiplication of three-judge court proceedings and the burden upon the Supreme Court’s docket. The procedure is cumbersome and a drain on judicial manpower. There have been innumerable criticisms of the three-judge court statutes and suggestions for their modification. See Ammerman, Three Judge Courts: See How They Run!, 52 F.R.D. 293; Currie, The Three Judge Court in Constitutional Litigation, 32 U.Chi.L.Rev. 146 (1964); The Three-Judge District Court: Scope and Procedure Under Section 2281, 77 Harv.L.Rev. 299; Report of the Study Group on the Case Load of the Supreme Court, prepared for the Federal Judicial Center, 57 F.R.D. 573, 596-599 (1972).

However, we cannot hear the facts and determine the equities. We have no power to make a declaration as to the constitutionality or unconstitutionality of the regulation or to grant or withhold injunctive relief. It might be convenient and time-saving for us to proceed to the merits. But we are not the statutory three-judge court to which Congress gave that power. We must remand if we believe the single judge acted in error. If there are to be changes in the three-judge court procedure it is up to Congress to make them. Meanwhile, we are confined to our limited role, a role which has over the years evolved outside the statutory system.

If we are within our power to give guidance when we believe a single judge has “erroneously invaded” the province of a three-judge court, we suggest both plaintiffs and defendants here stand to benefit from a hearing before a three-judge court. The jurisdiction of a three-judge court extends to all the questions involved and it can decide such of the questions as in its opinion disposes of this case. If the regulation is found constitutional, it will free defendants from further defense of such cases in the federal courts. Or, if plaintiffs’ claims are found substantial, the state may decide on the basis of the federal decision that the regulation should be changed in some respects. From plaintiffs’ standpoint a judgment by a three-judge court might delineate the bounds within which it must operate its business practices. Whatever the ultimate outcome, after a hearing and determination by a three-judge court, both parties will have the right of direct appeal to the Supreme Court. 28 U.S.C. § 1253.

The order of the single judge is vacated and the cause remanded with directions to take appropriate steps to convene a three-judge district court.

PELL, Circuit Judge

(dissenting).

I agree with the concept implicit in the majority opinion that it is probably the rare case in which a sufficient claim of constitutional invalidity has not been alleged so as to mandate the convening of a three-judge district court. I also agree that by the action of the district court here in dismissing there is inescapably a determination by that court that the regulation was constitutionally valid. I have difficulty, however, in discerning how a single district judge can determine that there is no substantial constitutional question without at least peeking at the other side of the coin on which the clear constitutionality of the regulation is evident.

While the district court’s resolution of the substantiality issue may be made no easier by a full scale panoply of claims of unconstitutionality neither do I think that broad-sweeping conclusory allegations, as I view those in the case before us, should serve to obscure an absence of a viable claim.

The district court here gave careful consideration to each constitutional claim and properly, in my opinion, disposed of the case at the courthouse door where it should have been. Holiday Magic, Inc. v. Warren, 357 F.Supp. 20 (E.D.Wis.1973). I would adopt the opinion of the district court as the opinion of this court. Further, it appears to me, although the parties did not address them, that there might be problems presented here by 28 U.S.C. § 2283, the anti-injunction statute, and the decisions of the Supreme Court typified by Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971). Cf. Steffel v. Thompson, 42 U.S.L.W. 4357, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). However, because of the adequate disposition of the case by the district court I do not deem it necessary to explore these potential issues, which were not briefed or discussed by the parties, when the existence of these issues, if in fact they are present, would only fortify the correctness of the result reached by the district court.

Accordingly, I respectfully dissent.

      . Section 100.20 of the Wisconsin statutes provides in part: “Methods of competition and trade practices. (1) Methods of competition in business and trade practices in business shall be fair. Unfair methods of competition in business and unfair trade practices in business are hereby prohibited. (2) The department, after public hearing, may issue general orders forbidding methods of competition in business or trade practices in business which are determined by the department to be unfair. * * * (6) The department may commence an action in circuit court in the name of the state to restrain by temporary or permanent injunction the violation of any order issued under this section. * * * ”

      . The complaint alleges in Claim One that:
      9. Upon information and belief that defendants, individually and in concert, have in the past, do presently, and threaten in the future, to deprive plaintiffs herein, their distributors, contractors, vendees, agents, and employees, of rights of plaintiffs herein arising under the laws and Constitution of the United States.
      10. That the means used and threatened to be used by defendants are civil and criminal enforcement of general order Ag. 122, Wisconsin Administrative Code, purportedly enacted pursuant to Sec. 100.20, Wis. Stats.; that individuals have, owing to actions of defendants, been prosecuted and convicted in the past of alleged criminal violations of the said order and various other individuals, corporations, and associations including the plaintiffs herein, are presently engaged in defense of alleged violations of said order seeking civil and quasi-criminal penalties and relief, including fines, civil forfeitures, injunctions, restraining orders, temporary injunctions or restraining orders, declaratory relief, etc.; that more actions and enforcement of remedies procured in earlier actions are presently threatened by defendants against plaintiffs, their distributors, contractors, vendees, agents, and employees.
      11. That a copy of said Ag. 122 is appended hereto and incorporated herein by reference.
      12. Upon information and belief that the plaintiffs herein are by such enforcement and threatened enforcement being denied rights and privileges arising under the laws and Constitution of the United States in the following respects :
      (a) That said enforcement and threatened enforcement is a violation of the U. S.Code, Title 42, Sec. 1983 ;
      (b) That said enforcement and threatened enforcement is in restraint of free trade and constitutes an improper and excessive imposition on interstate commerce in violation of Article One, Section 8, of the United States Constitution.
      (c) That said enforcement and threatened enforcement has been pre-empted by the jurisdiction of the United States, the Federal Trade Commission, and the Interstate Commerce Commission under laws of the United States, and has been specifically pre-empted as to various defendants by acts of the Federal Trade Commission in enforcements of Federal laws.
      (d) That said Ag. 122 constitutes a law interferring with the obligation of contracts, forbidden by the Constitution of the United States, Article One, Sec. 10.
      (e) That said enforcement and threatened enforcement of Ag. 122 abridges the freedom of speech, and, more, specifically and in particular, that the imposition of criminal and civil penalties have a chilling affect upon promotion of marketing plans, that promotion constitutes speech within the meaning of the Constitution and that the foregoing constitutes an abridgment of the right of free speech under Amendment One of the Constitution of the United States;
      (f) That said enforcement and threatened enforcement constitutes a denial of equal protection of the laws under Amendment Fourteen to the Constitution of the United States.
      (g) That said enforcement and threatened enforcement constitutes a violation of the privileges and immunities of the citizens of the United States guaranteed by Amendment Fourteen to the Constituation [sic] [of] the United States, and, further, constitutes a violation of the due process requirements of Amendments Five and Fourteen to the Constitution of the United States, in the following respects :
      (1) Ag. 122 is unreasonable, arbitrary and capricious.
      (2) Ag. 122 is so vague, arbitrary and uncertain as to prevent one from knowing whether or not his activities are proscribed.
      (3) Ag. 122 is not properly a law of the State of Wisconsin, having adopted contrary to the procedures required by the Wisconsin Administrative Procedures Act and in excess of the statutory authority of the Department of Agriculture.
      (4) That, even were Ag. 122 capable of construction, which it is not, the present purported application of Ag. 122 threatened or undertaken by defendants would be beyond the scope of prosecution which could be undertaken pursuant to said Ag. 122.
      13. That the aforesaid prosecutions are undertaken as vexatious and malicious proceedings designed to put jilaintiffs herein out of business in the State of Wisconsin.
      14. That no adequate remedy for the foregoing obtains at law.

        15. That the plaintiffs herein will all and individually be done irreparable harm by the enforcement of Act. 122 in the following respects:
      (a) Loss of business and profits which could not be recaptured.
      (b) Loss of monies through penalties, fines, forfeitures, defense of prosecutions, etc.;
      (c) Permanent and irreparable loss of public good will and standing in the business community owing to iwosecutions ;
      (d) Accumulation of criminal records on the part of individuals and officers of corporate plaintiffs, time loss serving criminal sentences in penal institutions, and the attendant damage to plaintiffs in terms of money, business, and recruitment of additional individuals and retention of older personnel.
      As a second claim, plaintiffs allege :
      1. Plaintiffs herein expressly reallege all of the allegations contained in Claim One herein, except those allegations contained in Paragraphs 13,14 and 15.
      2. That, as the foregoing has indicated, an actual controversy of justiciable nature exists between plaintiffs and defendants, involving the rights of plaintiffs arising under the Constitution and laws of the United States hereinbefore alleged.
      3. That no court of federal jurisdiction has as of yet addressed the federal questions arising herein.
      The prayer for relief in the complaint is as follows:
      WHEREFORE, plaintiffs demand judgment against the defendants for a permanent injunction restraining defendants, their agents, servants, employees and attorneys, from:
      1. Enforcing, or instituting proceedings under Chapter Ag. 122, Wisconsin Administrative Code, a general order purportedly promulgated pursuant to Sec. 100.20 Wis. Stats., against plaintiffs and their distributors, contractors, vendees, agents, and employees.
      2. And, further, enforcing or instituting proceedings of either a criminal or civil nature pursuant to said Ag. 122, and seeking or attempting to procure against said plaintiffs, their distributors, contractors, vendees, agents and employees the imposition or enforcement of fines, civil forfeitures, criminal sentences, injunctions, restraining orders, temporary injunctions or restraining orders, damages, declaratory relief, or any other form of civil or criminal remedy, relief, or judgment.
      3. And, further, enforcing or attempting to enforce any of the aforementioned remedies or judgments or further prosecuting or attempting to further prosecute or enforce any and all of the aforementioned remedies or judgments which may be available to defendants in actions commenced prior to the date hereof and/or pursuant to judgments taken or to be taken or orders of court procured or to be procured prior to the date hereof.
      And, further, plaintiffs demand:
      1. That the court enter a declaratory judgment determining the rights of plaintiffs and defendants under the Constitution of the United States, Article One, Sections 8 and 10; the First, Fifth, and Fourteenth Amendments to the Constitution of the United States; and the U.S. Code, Title 42, Section 1983.
      2. That the court enter a declaratory judgment directing defendants to cease and desist from all further prosecution under Ag. 122.
      3. That the court award costs and disbursements of this action to plaintiffs herein.

      . These concepts were requoted in the Supreme Court’s March 25, 1974 decision in Hagans et al. v. Lavine, Commissioner of New York State Department of Social Services et al., 42 L.W. 4381, 4384, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577.

      . Three-judge court hearings under provisions of 28 U.S.C. § 2284 have been increasing steadily from 129 in 1963 to 320 in 1973. Ten of the 320 three-judge court hearings in fiscal year 1973 were in the Seventh Circuit. 1973 Annual Report of the Director, Administrative Office of the United States Courts, 11-40,11-41.


source: Caselaw Access Project

author: DUNIWAY, Circuit Judge:

license: Public Domain

text:
    Dwight LOOK, Plaintiff-Appellant, v. GOVERNMENT OF GUAM et al., Defendants-Appellees.
    No. 73-2220.
    United States Court of Appeals, Ninth Circuit.
    May 16, 1974.
    W. Scott Barrett (argued), of Barrett, Ferenz, Bramhall & Klemm, Agana, Guam, for plaintiff-appellant.
    Charles D. Rogers, Asst. Atty. Gen., Agana, Guam (argued), for appellee Government of Guam.
    Howard G. Trapp, Agana, Guam (argued), for appellee Ramirez.
    Finton J. Phelan (argued), in pro. per., as Appellee.
    Before DUNIWAY and CHOY, Circuit Judges, and KING, District Judge.

       The Honorable Samuel P. King, United States District Judge for the District of Hawaii, sitting by designation.

   OPINION

DUNIWAY, Circuit Judge:

This is the second time that we have been called upon to decide whether the District Court of Guam or the Island Court of Guam has exclusive jurisdiction over an equitable action affecting the title to real property. In Tabor v. Ulloa, 9 Cir., 1963, 323 F.2d 823, we held that the District Court, not the Island Court, has jurisdiction of an action to partition real property. We did so on the ground that the statutes of Guam conferred jurisdiction on the Island Court, a court of limited jurisdiction, over actions at law involving $2,000.00 or less (Guam Code of Civil Procedure § 82, subsection 4), and over certain equitable actions {id., subsections 5, 6, 7, 8, 9, 10), but not including equitable actions dealing with real property, such as actions to partition. Therefore, we concluded jurisdiction over such an action remained in the District Court, a court of general jurisdiction, under Guam Code of Civil Procedure § 62. The provisions of the Code of Civil Procedure which we there construed have not been changed in any material respect. It would seem then, that Tabor v. Ulloa, supra, is squarely in point. An action to quiet title is just as much an equitable action as an action to partition. Castro v. Barry, 1889, 79 Cal. 443, 21 P. 946; Hollyfield v. Geibel, 1937, 20 Cal.App.2d 142, 66 P.2d 755.

Nevertheless, in the case at bar the district judge held that the Island Court of Guam had jurisdiction and ordered the case transferred to that court pursuant to Guam Code of Civil Procedure § 62. It did so in reliance upon a Guam statute, Guam Civil Code § 1157.16, which was in effect when we decided Tabor v. Ulloa, but which, apparently, was never brought to our attention in that case. We therefore reexamine the question in the light of that statute.

The Organic Act of Guam, 48 U.S.C. § 1424, creates the District Court of Guam, and confers upon it a dual jurisdiction — that of a district court of the United States, and that of a local court for Guam. In that capacity, it “shall have original jurisdiction in all other causes in Guam, jurisdiction over which has not been transferred by the legislature to other court or courts established by it. . The jurisdiction of and the procedure in the courts of Guam other than the District Court of Guam shall be prescribed by the laws of Guam.” (§ 1424(a)). Guam Code of Civil Procedure § 82 provides:

The Island Court shall have original jurisdiction exclusive of the District Court:
* * * * * *
12. In all other eases in which jurisdiction is expressly conferred upon the Island Court by law.

It seems clear that under the Organic Act and § 82, any Act that confers jurisdiction of a local type of action upon the Island Court suffices; it need not be done by amending § 82. Thus, if Guam Civil Code § 1157.16 does confer jurisdiction upon the Island Court in this case, the decision of the district court is correct, anything that we said in Tabor v. Ulloa, supra, to the contrary notwithstanding. To that question we now turn.

Since at least August 9, 1951, there has been in effect in Guam a Torrens type of Land Title Registration Act, copied from that of California. It was embodied in the Guam Civil Code, when that code was adopted in 1953, as §§ 1157-1157.107. It provided, in § 1157.4, for bringing land under its operation by petition to the District Court. The District Court was also specifically referred to in §§ 1157.16, 1157.32, 1157.-45, 1157.96 and 1157.107, dealing with various actions relating to land titles and to an action against the Title Assurance Fund created by § 1157.107. These references were, in a sense, surplusage, because the District Court is the court of general jurisdiction in Guam, and would still have had jurisdiction if not specifically mentioned, unless jurisdiction were expressly conferred on the Island Court.

We are informed, however, that from the beginning the then District Judge took the position that actions under the Land Title Registration Act were local in nature, and declined to take jurisdiction of them. The question was not brought to our court. Apparently, the local bar acquiesced in the views of the District Judge and took their cases to the Island Court, which adjudicated them, and the Registrar of Titles accepted these judgments.

Because of doubts, however, the Guam Legislature, in 1954 adopted Guam Public Law 61, the Title of which reads as follows:

AN ACT

To amend Sections 1157.4, 1157.16, 1157.32, 1157.45, 1157.96 and 1157.107 of the Civil Code of Guam to provide that jurisdiction of matters pertaining to land registration shall be in the Island Court, and to add Section 1157.108 confirming such jurisdiction.

The desired purpose was accomplished by substituting “Island Court of Guam” or “Island Court” for “District Court” wherever the latter words appeared in the Act. In addition, the amending statute added § 1157.108, which reads:

See. 1157.108. Jurisdiction of Island Court confirmed: Validity of prior decrees. The jurisdiction of the Island Court to issue decrees ordering the registration of land titles from and after August 9, 1951 is hereby confirmed, any other provision of law to the contrary notwithstanding; and all such decrees issued by the Island Court from and after said date are hereby declared to be valid insofar as the jurisdiction of the Island Court to hear and determine such matters is concerned.

One of the sections that was amended is § 1157.16. Before the amendment, it read:

§ 1157.16. Decree in proceedings to establish title, partition land, or administer upon estate. Whenever any proceedings are hereafter commenced in the District Court by any person or persons either for themselves or in a representative capacity, wherein it is sought to quiet, establish title to, partition land, or to administer upon any estate of a deceased person where the estate consists in whole or in part of land, any decree rendered in any such proceeding quieting or establishing the title to any land or partitioning or distributing land may order such land registered, under this act and when, in the application for notice, in such proceeding, the facts required to be set forth by Sections 1157.4 and 1157.-5 of this code are alleged. [P.L. 1-17 enacted 1953]

In form, this is certainly not a statute conferring jurisdiction, nor was it such a statute in fact. As we have seen, the District Court had jurisdiction anyway. All that the 1954 amendment did was to substitute for the words “District Court” the words “Island Court.” It is this change that is relied upon as transferring jurisdiction of the case at bar from the District Court to the Island Court. Some plausibility is lent to this view by the Title of the Act, and by similar amendments to §§ 1157.4, 1157.-32 and 1157.107, which create special causes of action and designate the court in which they are to be brought. However, § 1157.16 is not that type of statute; it specifies the effect to be given to certain types of decrees. It does not create causes of action. In short, we doubt that the amendment transferred jurisdiction.

Our doubt is strengthened by what we learned at oral argument from counsel, who have practiced in Guam for many years. They know of no action to quiet title that has been maintained in the Island Court, before or since the adoption of the amendment. The same is true of actions to partition. Thus, as a practical matter, the bar and the courts of Guam, until the case at bar, have apparently been of the view that jurisdiction of such actions remains in the District Court, a view no doubt strengthened by our decision in Tabor v. Ulloa, supra. On the other hand, we are also told that actions to quiet title are seldom filed in Guam. Nevertheless, it does appear that for .twenty years such actions as there have been were brought and prosecuted to judgment in the District Court. A decision by this court, at this late date, that the District Court did not have jurisdiction since 1954 could cast doubt on the validity of an unknown number of titles that rest on decrees of the kinds mentioned in § 1157.16. This we are unwilling to do.

The remedy, of course, is in the hands of the Guam Legislature, and we are informed that, under a new law, the entire local, i. e., non-federal, jurisdiction of the District Court will be transferred to the local courts effective July 1, 1974. Thus our decision will have little effect in futuro, but will protect titles resting upon existing decrees of the District Court.

The order appealed from is reversed.

      . Section 82, subsection 4, now confers jurisdiction on the Island Court over actions at law involving not more than $5,000.00.

      . “If it appears that an action or proceeding brought in the District Court is actually within the jurisdiction of the Island Court, the District Court shall transfer it to the Island Court for hearing and determination.”


author: BUTZNER, Circuit Judge:

text:
    O’Neal W. KOGER (on behalf of himself as an individual plaintiff, and as a member of a class for all present and prospective Negro employees of the Social Security Administration as a class), Appellants, v. Robert M. BALL, Commissioner of the Social Security Administration and the Department of Health, Education and Welfare, and Secretary, Department of Health, Education and Welfare, Appellees.
    No. 73-2332.
    United States Court of Appeals, Fourth Circuit.
    Argued Feb. 4, 1974.
    Decided May 10, 1974.

      Luther C. West, Baltimore, Md. (West, Frame & Barnstein, Gerald A. Smith and Johnson, Smith, Opara & Erlich, Baltimore, Md., on brief), for appellants.
    Thomas L. Crowe, Asst. U. S. Atty. (George Beall, U. S. Atty., D. Md., on brief), for appellees.
    Before BRYAN, Senior Circuit Judge, and WINTER and BUTZNER, Circuit Judges.
   BUTZNER, Circuit Judge:

The narrow question presented by this appeal is whether a federal employee whose complaint of racial discrimination was pending administratively on March 24, 1972, the effective date of the Equal Employment Opportunity Act of 1972, may seek judicial redress. The district court, ruling that it lacked subject matter jurisdiction to hear a complaint alleging discrimination that occurred before the effective date of the Act, and alternatively, that the complaint failed to state a claim on which relief can be granted, dismissed the employee’s suit. We hold that the procedural provisions of the Act embrace those complaints that were being administratively considered at the time of its enactment. Accordingly, we reverse and remand the case for further proceedings.

I

The procedural background of this case and the facts pertinent to this appeal can be briefly stated. At all relevant times, Executive Order 11478 and its supplemental regulations were in effect. The Order reiterates the government’s policy of assuring persons of all races equal opportunity to federal employment. In addition to encouraging the resolution of grievances on an informal basis, the President directed the Civil Service Commission and each department to provide for the prompt and impartial consideration of complaints of discrimination.

On November 30, 1971, the appellant, O’Neal W. Roger, applied for a better paying position in the Social Security Administration where he was employed. After discovering he had not been selected for the post, he lodged a complaint alleging that he had been denied promotion because of his race. On February 22, 1972, as the first step in the grievance procedure prescribed by the regulations, he wrote a letter to the director of the bureau where he worked. The director denied relief and suggested that if Roger wished to pursue his complaint he should contact an equal opportunity employment counselor. The conferences with the counselor proved futile, so on April 28, 1972, Roger submitted a formal complaint to the Secretary of the Department of Health, Education and Welfare. Since no action had been taken on the complaint by November 17, 1972, Roger’s lawyer made an inquiry to the Department. On December 4, 1972, the assistant general counsel replied that the complaint was still under review, but he added that Roger could now file a civil action without further notification from the Department. Accordingly, Roger, having waited 180 days from the institution of his complaint without receiving a decision, filed this action under the 1972 Act, which had become effective the previous March while he was pursuing his administrative remedies.

II

Although the federal government has long barred its departments and agencies from discrimination against their employees on the ground of race, judicial enforcement of this policy was uncertain and ineffective before 1972. To remedy this situation, Congress amended Title VII of the Civil Rights Act of 1964 by the Equal Opportunity Act of 1972, which among other provisions, added a new section pertaining to government workers. This section emphasizes that federal employment shall be “free from any discrimination based on race, color, religion, sex, or national origin.” It refines the responsibilities and administrative procedures necessary for the departments, agencies, and Civil Service Commission “to maintain an affirmative program of equal employment opportunity,” and it negates any intention to relieve government officials of their existing responsibilities “as required by the Constitution . statutes [and] Executive Order 11478.” Bearing directly on this case, it provides in § 717(c) that after an aggrieved employee has exhausted his administrative remedies on a complaint brought pursuant to Executive Order 11478, he may file a civil action against the head of his department or agency.

The legislative history establishes that the 1972 Act did not create a new substantive right for federal employees. The constitution, statutes, and executive orders previously granted them the right to work without racial discrimination. Section 717(c) simply created a new remedy for the enforcement of this existing right. Senator Cranston, a proponent of the legislation, explained its function as follows:

“Subsection (e) of the new section 717 creates a remedy in Federal district court — comparable to private employment actions — for any employee who has exhausted the equal employment opportunity complaint procedure within his Federal agency.”

Procedural statutes that affect remedies are generally applicable to cases pending at the time of enactment. Of course, retrospective application is not allowed when it will work a manifest injustice by destroying a vested right. But this exception plays no role here because the government has no vested right to discriminate against its employees on the basis of race. The general rule has been applied to cases affected by either the enlargement or the contraction of jurisdiction even though the causes of action arose before the enactment of the statutes that changed the court’s jurisdiction. Mr. Justice Holmes succinctly explained why a statute that “takes away no substantive right, but simply changes the tribunal that is to hear the ease” should be applied to pending cases. Retrospective application is appropriate when the statute “evinces a change of policy” arising out of a “consideration [that] applies with the same force to all cases.” Though Mr. Justice Holmes spoke of the transfer of jurisdiction from the judiciary to the executive, his reasoning applies precisely to this case where we deal with the transfer of jurisdiction from the executive to the judiciary.

Section 717(c) evinces a congressional policy to make the courts the final tribunal for the resolution of controversies over charges of discrimination after all administrative remedies have been exhausted. This policy applies with equal reason to discrimination that occurred either before or after the passage of the Act when the earlier discrimination was the subject of administrative proceedings at the time of enactment. In both instances, the wrong is similar, and the requirement for exhaustion of administrative remedies is the same.

Section 717(c), read literally, applies to Roger’s pending claim. It authorized him to file a civil action against the head of his department because in the language of the statute: 1) his “complaint of discrimination based on race . . . [was] brought pursuant to . Executive Order 11478 . 2) he waited “one hundred and eighty days from the filing of the initial charge with the department, agency, or unit . . . ” before filing suit; and 3) he was “aggrieved ... by the failure to take final action on his complaint.” Roger’s complaint, therefore, states a cause of action over which the district court has jurisdiction, unless his suit is barred by an exception to the general rule governing the retrospective application of procedural statutes.

Ill

The government advances three reasons why § 717(c) should not be applied to pending cases of discrimination. It relies primarily on a footnote in Cohen v. Chesterfield County School Board, in which we said, “Rules and practices of [a public school board] in effect when the [board] was exempt from the Equal Employment Opportunity Act cannot be the basis for a violation of that Act.” The government contends that since it was similarly exempt until March 1972, Roger’s suit, by analogy, cannot be maintained.

Cohen, however, is not controlling. There the issue concerned the validity of a school board’s regulation pertaining to maternity leave. For this reason, the court’s inquiry was directed to ascertaining the teacher’s substantive rights. The corollary of the teacher’s right was the obligation placed on the board. Obviously, during the time the board was exempt, the Act placed no obligation on it; consequently, the Act afforded the teacher no complementary right. Because the footnote dealt with the board’s duty and the teacher’s substantive right, it must be read in this context.

In contrast, Roger’s right to be free from racial discrimination does not depend on the 1972 Act. Executive Order 11478 previously imposed a duty on the officials of his department to promote employees without regard to their race. The Act provided Roger a supplemental remedy for a violation of the existing duty defined by the Order. We conclude, therefore, that Cohen furnishes no precedent for dismissing Roger’s complaint.

The government’s second reason for avoiding retrospective application of § 717(c) is based on § 14 of the 1972 Act. This section provides that amendments made to § 706 of the Civil Rights Act of 1964 shall be applicable to charges pending before the Economic Opportunity Commission. The government contends that § 14 indicates that only the amendments to § 706 were to be given retroactive effect, and therefore § 717(c) cannot be applied retrospectively. In the leading case supporting the government, the court ruled that a federal employee’s complaint of pre-Act discrimination failed to state a claim under the 1972 Act. The court reasoned that § 717(c) of the Act created a “new claim” for federal employees. Since § 717(c) is not an amendment of § 706, the court concluded that the “new claim” was applicable only to post-Act discrimination.

We agree that § 717(c) is not an amendment to § 706, but this does not settle the matter. The difficulty with the government’s argument arises out of the failure to analyze the nature of the “new claim” the Act was said to have created. If the phrase means only a new substantive right, it is inaccurate because a federal employee’s right to be free from racial discrimination existed before the passage of the 1972 Act. If it includes — as it should — a new remedy to enforce an existing right, then under the general rule favoring retrospective application of procedural statutes, § 717(c) should be applied to pending cases for the reasons mentioned in Part II.

Moreover, we find nothing in the legislative history to justify the inference that by making amendments to § 706 retrospective, Congress intended all other provisions of the Act to be prospective. The 1972 amendments to § 706 enlarged the power of the Economic Opportunity Commission and the Attorney General to deal effectively with discrimination in the private sector. The House bill was silent concerning the application of the new provisions to pending charges against private employers, and the Senate bill originally proposed that they should not be retroactive. However, at the request of the Justice Department, Senator Javits offered an amendment to apply the changes in § 706 to charges pending before the Commission.

The Senate, and later the House conferees, accepted Senator Javits’ amendment without any discussion about its effect on the rights of federal employees. Therefore, in the absence of any indication that Congress intended to alter the general rule that procedural statutes should be applied retrospectively, the legislative history furnishes no authority for limiting the application of § 717(c) to post-Act discrimination.

Finally, the government claims sovereign immunity, citing Gnotta v. United States, which held that this doctrine was a defense to a complaint similar to Roger’s. Assuming for the purposes of the government’s argument, that Gnotta is correct, we nevertheless

find it inapposite. Gnotta was decided before the passage of the 1972 Act, and consequently it presented no occasion for considering whether § 717(c) should be applied retroactively to abrogate the doctrine with respect to pending complaints of racial discrimination. Clearly, Congress gave its consent for suits to redress discrimination occurring after passage of the Act. Whether this consent extends to pending cases of pre-Act discrimination depends on the propriety of retrospective application of the Act. Thus, the government’s plea of sovereign immunity does not resolve the issue; it simply restates the question in different words.

The only condition precedent to suit that Congress created was the exhaustion of administrative remedies, including those remedies that Executive Order 11478 made available both before and after the passage of the Act. Since Roger’s pending case satisfied this condition precedent, the express language of § 717(c) authorizes him to seek judicial relief. In this respect, he stands in the same position as an employee who exhausted his administrative remedies for a claim of post-Act discrimination. Therefore, no rational purpose is served by invoking the doctrine of sovereign immunity to bar judicial adjudication of Roger’s complaint simply because his pending case involved pre-Act discrimination. We conclude that Congress, being fully aware of the general rule favoring retrospective application of procedural statutes, intended by enacting § 717(c) to grant employees consent to sue for redress of pending cases of pre-Act discrimination.

The judgment is reversed, and the case is remanded for further proceedings.

      . Pub.L.No. 92-261, 86 Stat. 103 (March 24, 1972), 42 U.S.C. § 2000e et seq. (1972).

      . Other courts reaching the same conclusion include: Hill-Vincent v. Richardson, 359 F.Supp. 308 (N.D.Ill.1973); Freeman v. Defense Constr. Supply Center, 5 FEP Cases 505 (S.D.Ohio 1972); Mosely v. United States, 6 FEP Cases 462 (S.D.Cal.1973); Palmer v. Rogers, 6 FEP Cases 892 (D.D.C.1973).

        In contrast, however, a majority of the courts considering the problem have applied the Act retrospectively: Walker v. Kleindienst, 357 F.Supp. 749 (D.D.C.1973); Hackley v. Johnson, 360 F.Supp. 1247 (D.D.C.1973); Johnson v. Froehlke, 5 FEP Cases 1138 (D.Md.1973); Pointer v. Sampson, 6 FEP Cases 9 (D.D.C.1973); Harrison v. Butz, 375 F.Supp. 1056 (D.D.C.1973); Grubbs v. Butz, 6 FEP Cases 432 (D.D.C.1973); Henderson v. Defense Contract Admin. Region, 370 F.Supp. 180 (S.D.N.Y.1973); Johnson v. Lybecker, 7 FEP Cases 279 (D.Or.1974); Gautier v. Weinberger, 7 FEP Cases 473 (D.D.C.1973).

      . Exec. Order 11478 became effective on August 7, 1969. 3 C.F.R., 1969 Comp. 133, 42 U.S.C. § 2000e note (1970). The Civil Service Regulations which implemented the Order became effective on January 1, 1971. 5 C.F.R. § 713.201 et seq. (1971).
      The preamble to the Order states :
      “It has long been the policy of the United States Government to provide equal opportunity in Federal employment on the basis of merit and fitness and without discrimination because of race, color, religion, sex, or national origin. All recent Presidents have fully supported this policy, and have directed department and agency heads to adopt measures to make it a reality.”

      . Exec. Order 11478, § 4; 5 C.F.R. §§ 713.212(a) and 771.303(a) (1971).

      . 5 C.F.R. §§ 713.213 and 771.303(b)(2) (1971).

      . Exec. Order 11478, § 4; 5 C.F.R. § 771.309 (1971).

      . See generally, Walker v. Kleindienst, 357 F.Supp. 749, 751 (D.D.C.1973) (dictum).
      The legislative history of the 1972 Act discloses Congress’ concern with the problem.
      “The prohibition against discrimination by the Federal Government, based upon the due process clause of the fifth amendment to the Constitution, was judicially recognized long before the enactment of the Civil Rights Act of 1964. [Bolling v. Sharpe, 347 U.S. 497, [74 S.Ct. 693, 98 L.Ed. 884] (1954) ] And Congress itself has specifically provided that it is ‘the policy of the United States to insure equal employment opportunities for Federal employees without discrimination because of race, color, religion, sex, or national origin. . . . ’ [5 U.S.C. § 7151 (Supp. II 1965, 1966)].
      “The primary responsibility for implementing this stated national policy has rested with the Civil Service Commission, pursuant to Executive Order 11246 (1964) as clarified by Executive Order 11748. ■
      “Despite some progress that has been made in this area, the record is far from satisfactory. Statistical evidence shows that minorities and women continue to be excluded from large numbers of government jobs, particularly at the higher grade levels.” H.R.Rep.No. 92-238, 92d Cong., 2d sess. (1972), 2 U.S.Code Cong. & Admin.News, pp. 2137, 2157 (1972).

      . Pub.L.No. 88-352, 78 Stat. 253 (July 2, 1964), 42 U.S.C. § 2000e et seq. (1972).

      . See n. 1, supra.

      . The Equal Employment Opportunity Act of 1972, § 717, 42 U.S.C. § 2000e-16 (1972). All subsequent section references in the text are to the Act.

      . Section 717(c), 42 U.S.C. § 2000e-16(c) (1972), provides:
      “Within thirty days of receipt of notice of final action taken by a department, agency, or unit referred to in subsection (a) of this section, or by the Civil Service Commission upon an appeal from a decision or order of such department, agency, or unit on a complaint of discrimination based on race, color, religion, sex or national origin, brought pursuant to subsection (a) of this section, Executive Order 11478 or any succeeeding Executive orders, or after one hundred and eighty days from the filing of the initial charge with the department, agency, or unit or with the Civil Service Commission on appeal from a decision or order of such department, agency, or unit until such time as final action may be taken by a department, agency, or unit, an employee or applicant for employment, if aggrieved by the final disposition of his complaint, or by the failure to take final action on his complaint, may file a civil action as provided in section 2000e-5 of this title, in which civil action the head of the department, agency, or unit, as appropriate, shall be the defendant.”

      . See nn. 3 and 7, supra.

      . 118 Cong.Rec. 2279 (daily ed. Feb. 22, 1972).

      . In Sampeyreac v. United States, 32 U.S. (7 Peters) 222, 239, 8 L.Ed. 665 (1833), the Court said:
      “ [Considering the Act ... as providing a remedy only, it is entirely unexceptionable. It has been repeatedly decided in this court that the retrospective operation of such a law forms no objection to it. Almost every law, providing a new remedy, affects and operates upon causes of action existing at the time the law is passed.”

        See also Thorpe v. Housing Authority of Durham, 393 U.S. 268, 281, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969); United States v. Village Corp., 298 F.2d 816, 820 (4th Cir. 1962).

      . Greene v. United States, 376 U.S. 149, 84 S.Ct. 615, 11 L.Ed.2d 576 (1964); see Thorpe v. Housing Authority of Durham, 393 U.S. 268, 282 n. 43, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969) (dictum); 2 J. Sutherland, Statutory Construction § 41.09 (4th ed. 1973).

      . Walker v. Kleindienst, 357 F.Supp. 749, 752 (D.D.C.1973), see also nn. 3 & 7, supra.

      . Federal Reserve Bank of Richmond v. Kalin, 77 F.2d 50 (4th Cir. 1935) (jurisdiction enlarged) ; Hallowell v. Commons, 239 U.S. 506, 36 S.Ct. 202, 60 L.Ed. 409 (1916) (jurisdiction withdrawn).

      . Hallowell v. Commons, 239 U.S. 506, 508, 36 S.Ct. 202, 60 L.Ed. 409 (1916).

      . See n. 11, supra.

      . Cohen v. Chesterfield County School Board, 474 F.2d 395-396, n. 1 (4th Cir. 1973), rev’d 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974).

      . Similar language is contained in a footnote of the Supreme Court’s opinion. Cohen v. Chesterfield County School Board, 414 U.S. 632, 638, n. 8, 94 S.Ct. 791, 795, 39 L.Ed.2d 52 (1974).

      . Since the Act imposed no duty on the board at the time the teacher was jdaced on maternity leave, the Court considered her constitutional claim and held that the maternity leave regulation violated the due process clause of the fourteenth amendment. Cohen v. Chesterfield County School Board, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974).

      . Section 14, 42 U.S.C. § 2000e-5 note (1972), provides:
      “Tlie amendments made by this Act to section 706 of the Civil Rights Act of 1964 shall be applicable with respect to charges pending with the Commission on the date of enactment of this Act and all charges filed thereafter.”

      . 42 U.S.C. § 2000e-5(a) to (g) (1972).

      . Hill-Vincent v. Richardson, 359 F.Supp. 308 (N.D.Ill.1973). The court, however, ruled that the complaint stated a cause of action under the fifth amendment. 359 F.Supp. at 309.

      . 42 U.S.C. § 2000e-5(a) to (g) (1972).

      . H.R.Conf.Rep.No. 92-899, 924 Cong., 2d sess., 2 U.S.Code Cong. & Admin.News 2179, 2185 (1972).

      . 118 Cong.Rec. 2183 (daily ed. Feb. 21, 1972) .

      . See nn. 27 and 28, supra.

      . “Unless a contrary legislative intent appears, changes in statute law which pertain only to procedure are generally held to apply to pending cases.” 2 J. Sunderland, Statutory Construction § 41.09 at 281 (4th ed. 1973) .

      . Gnotta v. United States, 415 F.2d 1271 (8th Cir. 1969), cert. denied, 397 U.S. 934, 90 S.Ct. 941, 25 L.Ed.2d 115 (1970); accord, Manhattan-Bronx Postal Union v. Gronouski, 121 U.S.App.D.C. 321, 350 F.2d 451 (1965).

      . See n. 11, supra.

      . Congressional intention to abolish the defense of sovereign immunity is disclosed in S.Rep.No. 92-415, 92d Cong., 1st Sess. 16 (1971):
      “An important adjunct to [administrative] responsibilities is the statutory provision of a private right of action in the courts by Federal employees who are not satisfied with the agency or Commission decision.
      “ . . . [T]he committee found that an aggrieved Federal employee does not have access to the courts. In many cases, the employee must overcome a U. S. Government defense of sovereign immunity . . . The provisions adopted by the committee will [afford] . . . employees . . . the full rights available in the courts as are granted to individuals in the private sector under Title VII.”

      . Henderson v. Defense Contract Admin. Region, 370 F.Supp. 180, 181 (S.D.N.Y.1973).


author: GIBSON, Circuit Judge.

text:
    J. B. KRAMER GROCERY COMPANY, INC., Appellant, v. GLENS FALLS INSURANCE COMPANY et al., Appellees.
    No. 73-1853.
    United States Court of Appeals, Eighth Circuit.
    Submitted March 14, 1974.
    Decided June 6, 1974.

      H. David Blair, Batesville, Ark., for appellant.
    Jeff Davis, Jr., Little Rock, Ark., for appellees.
    Before GIBSON, BRIGHT and STEPHENSON, Circuit Judges.
   GIBSON, Circuit Judge.

The burning dispute here is who should bear the loss from a fire set by the financially pressed owner of the contents of a grocery store — the security holder or the insurance companies? Plaintiff Kramer, a prior owner, was holder of a security interest in the contents (stock and fixtures) of the store to secure repayment of an indebtedness owed it by the new owner, Teddy Watson. Defendant insurance companies had issued standard fire policies totaling $125,000 covering the:

[C]ontents of the one store, approved roof, concrete block building, occupied as a grocery store and located R. 100-112 E. First Street, Newport, Arkansas. Serial #2375.

These policies named Kramer in the mortgage clause of the policy. This was done to protect Kramer’s security interest in the contents. The loss payable clause, substantially identical in each policy, however, limits the mortgagee’s coverage to building items.

The dispute may be shortly summarized. If the Standard Mortgage Clause applies, the defense of Watson’s arson is unavailable to the insurance companies. If it does not and a standard loss payable clause that the insurance companies say was accidently omitted applies, the defense is available and Kramer loses. The District Court determined that the Standard Mortgage Clause did not apply and that the defense of arson was available. Summary judgment for defendants was later rendered as there was no dispute that the loss was as a result of Teddy Watson’s arson. Kramer appeals.

Kramer argues that the language limiting the loss payable clause to building items is ambiguous and should be construed most strongly against the insurer ; that this limiting language is inconsistent with the entire policy and should be disregarded; and that the District Court erroneously reformed the insurance contract by finding Kramer was entitled only to the benefit of the general loss payable clause and not the Standard Mortgage Clause. We have concluded the District Court erred in interpreting the policies and therefore reverse.

Construction of the insurance policies is governed by Arkansas law. It is settled law in Arkansas, as elsewhere, that provisions of an insurance contract must be considered as a whole, keeping in mind the purpose for which the contract was written. Sovereign Camp, W.O.W. v. Hardee, 188 Ark. 542, 549, 66 S.W.2d 648, 651 (1934):

It is the settled rule of this court that insurance contracts, like all others, must be considered as a whole and the several parts construed together, those defining liability as well as those stipulating against it; and that since the contract was written by the insurer, it must be construed liberally in favor of the insured and strictly against the insurer; if there are any conflicting provisions, those most favorable to the insured must be given effect to effectuate the purpose for which the insured paid his premiums * * *.

Here the policies were taken out specifically to provide coverage for the contents of the building; this purpose clearly appears from both the policies themselves and the testimony of the agents who wrote the policies. However, the Standard Mortgage Clause purports to limit recovery on the policy to “building items” which the District Court construed to mean real property. Such a limitation is in clear conflict with the well-known and expressed purpose for obtaining the policies and if given effect would destroy the coverage for which the insurance companies had accepted premiums.

The District Court recognized that Kramer should be considered to have coverage on the contents of the building; it then concluded that the coverage generally afforded a mortgagee of personal property in Arkansas is that provided by a simple loss payable clause; that such forms should have been attached to the policies; and that acts of the owner would be a defense under the simple loss payable clause.

We think this was error. Even if we accept that these forms should have been attached, we are still faced with the fact that they were not, and the Standard Mortgage Clause insulating a mortgagee from the owner’s acts was a part of the policies. Kramer’s rights under the policies should not have been determined by reference to a simple loss payable clause not a part of the policies in question. The court was limited to determining the coverage provided from the terms of the policies, bearing in mind the purpose for which they were written, without regard to what the insurance companies might now wish they had included. It was not proper to rewrite the terms of the insurance contract for the benefit of the insurer, particularly in light of the general rule that the terms of insurance contracts are construed most strongly against the insurer who prepares the contract of insurance. M.F.A. Mutual Insurance Co. v. McKinley, 245 Ark. 326, 327, 432 S.W.2d 484, 485 (1968); Sovereign Camp, W.O.W. v. Hardee, supra; Maloney v. Maryland Casualty Co., 113 Ark. 174, 179, 167 S.W. 845, 847 (1914).

It is clear that there is a conflict in the policy provisions. The policies purport to cover the mortgagee’s interest in the contents of the building while on the other hand purport to limit payment for loss to “building items.” Kramer contends that “building items” is ambiguous and should be construed to include “building contents.” Terms used in insurance contracts are to be construed in their plain, ordinary, and popular sense. American Homestead Insurance Co. v. Denny, 238 Ark. 749, 751, 384 S.W.2d 492, 494 (1964). The District Court considered the term “building items” to refer only to real property and such was the interpretation of the term in London & Provincial Marine & General Insurance Co. v. Sykes, 66 S.W.2d 382 (Tex.Civ.App.1933), the only other case we have found involving the term. This does not necessarily establish that “building items” might not be considered ambiguous and could not be construed to include “building contents,” but we do not predicate our decision on that possible ambiguity.

Rather, we believe that the limitation of the Standard Mortgage Clause to “building items” should have been disregarded as being repugnant to the purposes of the policy as a whole, that is, to provide coverage of the contents of the building. See Traders & General Insurance Co. v. Champ, 226 F.2d 829 (9th Cir. 1955) (on denial of rehearing); 13 J. Appleman, Insurance Law and Practice § 7383 (Supp.1974). Such has been done in factually similar eases. Aetna Life & Casualty Co. v. Chas. S. Martin Distributing Co., 120 Ga.App. 133, 169 S.E.2d 695 (1960); London & Provincial Marine & General Insurance Co. v. Sykes, supra. Kramer’s interest was therefore covered by the policies in question and his right to recovery is unaffected by the acts of the insured.

We do not however direct the entry of judgment in favor of the plaintiff on this appeal. At oral argument there was a suggestion that plaintiff Kramer may have conspired with Watson to have the grocery burned down. Defendants have not had an opportunity to develop a record on this issue as the case was decided below on defendants’ Motion for Summary Judgment. We feel that the defendants should have an opportunity to present this issue in the trial court if they wish to do so. While we have determined that Watson’s acts will not operate as a defense, Kramer’s involvement, if any, could operate as a defense under the policies. Home Ins. Co. v. Springdale Motor Co., 200 Ark. 893, 141 S.W.2d 522 (1940); Farmer’s Union Mutual Ins. Co. v. Jordan, 200 Ark. 711, 140 S.W.2d 430 (1940); 5 J. Appleman, Insurance Law and Practice § 3113 (1970).

The cause is therefore reversed and remanded to the District Court for further proceedings consistent with this opinion and to allow the defendants to raise by means of affirmative defense the possible involvement of Kramer in the arson of the grocery store.

      . Reference in this opinion to Kramer is either to Kramer Grocery Company, Inc., or J. B. Kramer, its majority stockholder. The insurance policies were issued either to the Kramer Grocery Company or ,T. B. Kramer, individually. The interests of these parties are identical for purposes of this appeal.

      . This policy provision reads :
      STANDARD MORTGAGE CLAUSE: (Applies to Building Items only and is effective only when this policy is made payable to a named mortgagee or trustee) : Loss or damage, if any, under this policy, shall be payable to the mortgagee (or trustee), named on the first page of this policy, as interest may appear, and this insurance as to the interest of the mortgagee (or trustee) only therein, shall not be invalidated by any act or neglect of the mortgagor or owner of the within described property * * *.

      . The Memorandum Opinion of the District Court is reported at 356 F.Supp. 771 (E.D.Ark.1973).

      . Defendants chose not to respond to these arguments in their brief, limiting it to recitation of the well-established “clearly erroneous” rule on review of District Court factual findings and the special weight to be given a determination of local law by the trial court.

      . 356 F.Supp. at 777.

      . The District Court determined that the standard mortgage clause was limited only to mortgagees of real property and could not be used to give recognition to the rights of a mortgagee of personal property. 356 F.Supp. at 775-76. While we give great deference to the district courts’ determinations of local law in diversity cases, Highway Construction Co. v. Moses, 483 F.2d 812, 814 n. 2 (8th Cir. 1973); Continental Grain Co. v. Fegles Construction Co., 480 F.2d 793, 796 (8th Cir. 1973); Owens v. Childrens Memorial Hospital, 480 F.2d 465, 467 (8th Cir. 1973); Luke v. American Family Mutual Insurance Co., 476 F.2d 1015, 1019 n. 6, aff’d en banc 476 F.2d 1023 (8th Cir.), cert. denied, 414 U.S. 856, 94 S.Ct. 158, 38 L.Ed.2d 105 (1973); it is no longer conclusive. We now undertake a full review of the available case law in the applicable jurisdiction. Here, since there is no controlling view in Arkansas, we have considered the views of other authorities on the question and feel that the result we reach would most likely be adopted by the Arkansas courts if presented with the question at hand.


author: PECK, Circuit Judge.

text:
    Ken and Peggy BOSTIC, Plaintiffs-Appellants, v. EAST CONSTRUCTION CO., Defendant-Appellee.
    No. 73-1836.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 12, 1974.
    Decided May 31, 1974.

      Garry L. Edmondson, Covington, Ky., for plaintiffs-appellants; Spalding, Bubenzer & Grause, William I. Bubenzer, Covington, Ky., on brief.
    W. Roger Fry, Cincinnati, Ohio, for defendant-appellee; Rendigs, Fry, Kiely & Dennis, William B. O’Neal, Kilcoyne, O’Neal, Meier & Varnau, Cincinnati, Ohio, on brief.
    Before CELEBREZZE, PECK and ENGEL, Circuit Judges.
   PECK, Circuit Judge.

Plaintiffs-appellants perfected this appeal from a judgment entered on a jury verdict for defendant-appellee in this diversity action for damages arising from destruction of personal property in a fire.

Appellants brought this action against appellee, the builder, part owner and manager of a Florence, Kentucky, apartment building, alleging that appellee’s failure to provide fire extinguishers resulted in the destruction by fire of most of their furniture and other belongings because of their inability to extinguish a fire which was accidentally started in their kitchen. The duty to furnish fire extinguishers arose, appellants contend, out of Kentucky statutory law as set out in the Standards of Safety promulgated by the Kentucky Department of Public Safety, Division of Fire Prevention.

The record establishes that the fire started when a pan full of cooking oil caught fire on the stove in appellants’ kitchen on October 26, 1970, while their daughter was preparing french fries. The daughter attempted to quench the flames with baking soda, but was unsuccessful. She then left the apartment in a vain search for a fire extinguisher and to ask a neighbor to notify the fire department. By the time firemen arrived, the apartment had suffered considerable damage.

Three basic facts emerge from the record as being beyond dispute: (1) the daughter’s inattentiveness was the primary cause of the fire; (2) there was no fire extinguisher in the three-story, twelve unit apartment building; and (3) appellee did not submit the plans and specifications for the apartment building to the division of Fire Prevention for approval or in any other way directly contact the state with regard to compliance with the Standards of Safety. Also of note, is the fact that appellee obtained all relevant municipal permits and thus presumably met all applicable municipal requirements connected with the construction and occupancy of the building.

Appellants maintained at trial, and continue to argue in this Court, that because appellee failed to comply with its statutory duty, as set out in the Standards of Safety, to submit the plans and specifications for the apartment building here in question to the responsible state agency at the time it was being constructed, and to furnish at least one fire extinguisher on each floor of the building, appellee was guilty of negligence per se. The Kentucky Court of Appeals has repeatedly stated that the violation of a statute or ordinance constitutes negligence per se leaving for determination of the trier of fact the issue of proximate cause and whether the injury was sustained by a person or interest which the statute or ordinance contemplated protecting. Buren v. Midwest Industries, Inc., 380 S.W.2d 96 (Ky. 1964); Louisville Taxicab & Transfer Co. v. Holsclaw Transfer Co., 344 S.W.2d 828 (Ky.1961); Murphy v. Homans, 286 Ky. 191, 150 S.W.2d 14 (1934). Similar issues have been submitted where plaintiffs have proven violations of administrative regulations that have been duly promulgated and are consistent with the enabling legislation. Home Ins. Co. v. Hamilton, 253 F.Supp. 752 (E.D.Ky.1966) (involving these same Standards of Safety, although not the same sections); see McKinley v. Danville Motors, Inc., 374 S.W.2d 366 (Ky.1964).

Assuming, arguendo, that the alleged violations were the proximate cause of appellants’ injuries and that the Standards were designed to prevent the type of injuries here involved, appellee asserts that the relevant sections of the Standards are so vague and confusing as to be unenforceable and invalid. As such, appellee says, the regulations are an insufficient basis upon which to predicate a claim of negligence per se for an alleged violation thereof. We agree.

The relevant sections of the Standards of Safety are not models of clarity. Appellants introduced the testimony of Edward Eviston, a Deputy Fire Marshall for the Commonwealth of Kentucky, who unequivocally stated that the Standards (Section 101) require that before construction of an apartment building containing over twelve bedrooms, plans must be submitted to and approved by the State Fire Marshall’s office. He further asserted that apartment buildings are in a classification (Class I, light hazardous occupancy) which requires a fire extinguisher for every twenty-five hundred square feet of floor area, or as applied to the building in question, three extinguishers. (Section 805 & Appendix A.) On the other hand, appellee called Richard Carr, the building inspector for the City of Florence during the critical time, who testified that he was familiar with the Standards, that they had been adopted by the City of Florence, and that in his opinion the Standards did not require fire extinguishers in appellee’s apartment building. He also testified that he had inspected and approved the plans for the building, visited the construction site on numerous occasions, and given the final approval needed for occupancy.

Reference to the Standards does not clear up the confusion evidenced by the above witnesses. Section 101 of the Standards reads in pertinent part as follows :

“2(d) State Permits: A permit or license shall be obtained from the Director, Division of Fire Prevention for the following, except that a state permit will not be required under Subparagraphs (2) and (4), where a permit has been obtained from an authorized official in a city or town who has adopted these Standards.
* * * * * *
(2) The construction ... of any building of a class listed in Subparagraph (b) of Subsection 3, following.
* * * * * *
“(e) Local Permits: In addition to the State Permits required above, local permits shall also be obtained from an authorized city official, where provisions have been made by the municipality for the issuance of permits, and where the municipality has adopted these Standards or has regulations at least as stringent as those of the Fire Marshall, for:
(1) The construction or substantial remodeling of . any building of a class listed in Paragraph (b), Subsection 3 of this Section
* * * * -X- -X-
“3(b) Plans and specifications in specific detail and in conformity with good engineering practice shall be submitted to the Director, Division of Fire Prevention, Department of Public Safety . . . and approval received (see State Permits preceding) before construction or substantial remodeling is started for the following.
* * * * * *
(3) A residential building containing more than 12 bedrooms.”

When Fire Marshall Eviston was asked to explain where in the Standards they required that an apartment building with more than 12 bedrooms was required to have a certain number of fire extinguishers, he referred to Section 805-9(a), which states that “[f]irst aid fire equipment shall be provided in accordance with the provisions of Appendix A.” Appendix A contains a detailed discussion of hand held fire extinguishers and sets out a recommended guideline for determining the number of units which shall be installed under various conditions. Eviston maintained that an apartment building such as appellee’s was a “Class I occupancy.” Pressed to indicate where an apartment building was described as being within Class I, Eviston replied that apartment buildings are included in the “etc.” which follows the NOTE set forth after Class I. The NOTE reads: “This class may include occupancies such office [sic] occupancies, schools (exclusive of trade schools and shops), public buildings, etc.” (Emphasis supplied.)

Kentucky’s highest court has clearly and unwaiveringly held that “[w]here the lawmaking body, in framing a law, has not expressed its intent intelligibly, or in language that the people upon whom it is designed to operate or whom it affects can understand, or from which the courts can deduce the legislative will, the statute will be declared to be inoperative and void.” Folks v. Barren County, 313 Ky. 515, 517, 232 S.W.2d 1010, 1013 (1950). The rationale behind this clarity requirement is that a law should not be “so vague that the . reasonable man cannot intelligently choose in advance which course to follow . . . .” Arlan’s Dept. Store of Louisville v. Commonwealth, 369 S.W.2d 9, 13 (Ky.1963); accord, Murphy v. Cranfill, 416 S.W.2d 363 (Ky.1967).

The sections of the Standards of Safety upon which appellants’ case depends are indeed vague and unintelligible. It is impossible, due to the numerous cross-references within Section 101, to determine if some sort of state approval is required prior to the construction of an apartment building such as that here involved, or whether local approval is sufficient. As stated heretofore, appellee secured all the necessary local permits and approvals. Further, even the Deputy Fire Marshall could not indicate to the satisfaction of the district judge where in the regulations it states that any particular number of fire extinguishers are required in such a building. Those portions of the standards here involved simply do not possess that degree of clarity necessary for validity, and therefore, do not provide a basis for negligence per se.

The above determination does not dispose of this case, however, as it was submitted to the jury on the issue of common law negligence. In instructing the jury in this regard, the trial judge said,

“Those regulations are regulations and regulations ordinarily have the force of law, but in my judgment these regulations are so obscure and difficult and subject to various interpretations that they do not have the force of law, but they do have the force of being written-down items which anyone dealing with an apartment house such as this has a right to take into consideration and if you feel there was a failure to do that, this damage resulted, then you should find for the plaintiff. If you do not so believe, then you should find for the defendant.”

This was, in our opinion, a correct statement as to the legal effect of the Standards. It being further concluded that under this statement and the entire charge read as a whole, the jury was properly instructed on the issue of common law negligence, and we decline to disturb the judgment entered pursuant to the verdict returned thereunder.

For the reasons stated in the foregoing opinion, the judgment of the district court is affirmed.

      . The enabling legislation reads as follows: “(1) The commissioner shall promulgate reasonable rules and regulations based upon good engineering practice and principles as embodied in recognized standards of fire prevention and protection, providing for a reasonable degree of safety for human life against the exigencies of fire and panic, and insuring as far as is practicable against fire loss. Such rules and regulations shall be known as the Standards of Safety.
      “(2) In making such rules and regulations the commissioner shall establish minimum fire prevention and protection requirements, including but not limited to requirements for . . . fire extinguishing systems . . . .” K.K.S. § 227.300.

      . Class I is defined, in Appendix A, as follows: “Light hazard occupancies, in sections of fire-resistive or noncombustible construetion where because of a relatively small amount of combustibles, incipient fires of minimum severity may be anticipated. Units [hand held fire extinguishers] shall be so located that a person will not have to travel more than 100 feet from any point to reach the nearest unit but at least one unit of extinguishing capacity shall be required for each 2,500 square feet of floor area or greater part thereof.”