author: HILL, Circuit Judge.

text:
    Sally SMITH et al., Plaintiffs-Appellants, v. CLAYTON AND LAMBERT MANUFACTURING COMPANY, Defendant-Appellee. Marijene L. PEART et al., Plaintiffs-Appellants, v. CLAYTON AND LAMBERT MANUFACTURING COMPANY, Defendant-Appellee.
    Nos. 73-1439, 73-1440.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Oct. 17, 1973.
    Decided Dec. 17, 1973.

      W. Eugene Hansen, Salt Lake City, Utah (Burton H. Harris, Logan, Utah, on the brief), for plaintiffs-appellants.
    Stephen B. Nebeker, Salt Lake City, Utah (Paul S. Felt, Salt Lake City, Utah, on the brief), for defendant-appel-lee.
    Before HILL, McWILLIAMS and BARRETT, Circuit Judges.
   HILL, Circuit Judge.

This diversity action was brought to recover for the wrongful deaths of Quentin L. Peart and C. Dean Smith by their wives and children. Defendant-ap-pellee is a silo manufacturing company in Buckner, Kentucky, which sold decedents an “oxygen free” grain silo. While decedents were in this grain silo, they were asphyxiated by carbon dioxide. The case was tried to a jury in Utah federal district court, and a verdict was returned for appellee. This appeal followed.

The evidence adduced at trial indicates that from March, 1969, until the date of their deaths on May 1, 1971, Quentin L. Peart (Quentin) and his son-in-law C. Dean Smith (Dean) were owners and operators of the Bridgerland Dairy in Richmond, Utah. In 1969 the decedents purchased two large metal silos, one for storing high moisture hay such as alfalfa and the other for storing high moisture grains. Both silos were designed and manufactured by appellee, Clayton and Lambert Manufacturing Company.

The silos operated on the principle that high moisture hay and grains can be stored without spoilage if stored inside an airtight container. After the material is stored and sealed, a fermentation process begins which consumes oxygen and gives off other gases such as carbon dioxide. Once sufficient oxygen inside the silo has been consumed by this process, spoilage ceases.

The hay silo stands 60 feet high and is 20 feet in diameter. The grain silo in which the men died stands 21 feet high and is 20 feet in diameter. Located every five feet up the side of these silos are large, resealable steel doors which provide access to the feed or the loading/unloading machinery at the top of the silage.

Located on the bottom doors and the roof hatches of the two silos are warning statements. The warning on the hay silo reads:

DANGER TO LIFE
Do NOT enter before completely ventilating silo. Do NO work in silo without adequate, continuous ventilation. Ensiling consumes oxygen and produces carbon dioxide and other gases. Such gases or insufficient oxygen may cause illness or death.

The signs on the silo in which the men were killed (the grain silo) read:

DANGER TO LIFE
Do not enter before completely ventilating this oxygen-free silo.

About 7:00 p. m. on May 1, 1971, Quentin told his wife that he and Dean were having problems with the silo equipment. When the men failed to return from the silos by 9:00 p. m., Mrs. Peart became worried. She drove down to the silos but was unable to find them; so she called a neighbor, Howard Anderson, for help. Anderson, after noticing the second to the lowest door on the grain silo was open, climbed up to the entrance, and with the aid of a flashlight saw the decedents’ bodies lying on the grain.

Although there were no' witnesses to this accident, we can infer from the circumstances that moist grain in the silo had bridged over the auger, thus preventing grain from falling down into the auger. Apparently Dean crawled into the silo with a pitchfork to pry loose the bridged-over grain, and was overcome by the carbon dioxide gas. When Quentin noticed something was wrong, he entered the silo to rescue Dean and was also overcome by the poisonous gas. The second door was probably used for their entrance because the bottom rung of the ladder leading to the top of the silo was bent over, making it impossible to open the lowest door without first bending out this bottom rung.

At trial appellants presented their case on two theories, strict liability and negligence. Their case included the following pertinent evidence. Dr. James T. Weston, chief medical examiner for the State of Utah, testified as to the effects of carbon dioxide upon the human body. Dr. Weston’s testimony was that lack of oxygen causes dizziness and lightheadedness, and eventually causes a person to pass out. A concentration of carbon dioxide, on the other hand, associated with a decrease in oxygen, presents a more hazardous situation since the carbon dioxide in the blood returning to the lungs is not released but returns to the body and brain. This situation causes a person to pass out without any warning in as little as three or four breaths.

Randall Swanson, a farm safety expert, testified that in his opinion the warnings on the two silos were insufficient because the signs merely warn of danger rather than explain to the operator how to avoid this danger. He testified that appellee’s warnings did not explain what “completely ventilating” meant, nor did they instruct how the ventilation is performed.

There was testimony from a ventilation expert to the effect that a moist grain silo could be properly ventilated by installing an inexpensive blow-fan. Whenever the silo needed to be entered, the fan could be turned on, thereby speeding up the ventilation and reducing the hazard of carbon dioxide consumption.

Appellee’s case included the testimony of Laurie Rautio, president of Clayton and Lambert Manufacturing Company. Rautio testified that the silos’ warning signs are designed to catch a person’s attention. The signs are written with simple language that is understandable to everyone, and are brief enough to assure complete reading. Rautio also stated that no definition of “ventilation” is included because that word is common knowledge among farmers. When asked how a farmer can determine what constitutes sufficient ventilation, Rautio indicated the generally accepted method is to place your head inside the silo; if there is an acid odor associated with the ensiling process which stings the eyes, nose and throat, then proper ventilation has not yet occurred.

Appellee’s ventilation expert, Dr. Joseph Ross, testified that the concentration of gas, the temperature and the humidity all affect the ventilation process and that to date no acceptable device for testing carbon dioxide density has been put on the market. Thus the common method is to use natural ventilation by opening the top hatch and a lower door. Gases inside the silo which are warmer than the outside air are lighter and rise through the top hatch, while inside gases which are colder than the outside air flow through the lower door. Dr. Ross also testified that the combination of carbon dioxide and water inside the silo forms carbonic acid which would freeze the motor of any fan mounted inside the silo.

Other evidence introduced at trial indicated both decedents knew the silos had to be properly ventilated before entering. They had worked around the silos daily and had ventilated them on other occasions. In fact, Quentin on one occasion entered the hay silo before properly ventilating it and had to be helped out after the carbon dioxide made him dizzy. After the incident occurred, a salesman for appellee’s silos read Quentin a newspaper article about a similar incident happening near Delta, Utah, to impress upon him the importance of ventilating a silo before entering. Dean, who was the chemistry teacher at Skyview High School, once told his wife the silos must be properly ventilated. On another occasion he explained to a fellow teacher that to properly ventilate the silos a door or window must be opened to allow the ingress of oxygen.

Appellants’ position is that appellee was strictly liable for designing, manufacturing, testing and inspecting the grain tank and placing it in the flow of commerce in a dangerous and defective condition. They also assert that appellee is strictly liable for failing to adequately warn and instruct purchasers of their product as to the inherent dangers in using the equipment and in failing to adequently explain what procedures should be taken to make the product safe. Appellants’ second theory of liability, negligence, is founded on the same grounds as strict liability except ordinary negligence is substituted as the basis for recovery.

At the conclusion of the trial, the jury was instructed on strict liability alone. As a defense to strict liability, the jury was instructed that if decedents knew of the danger and freely and voluntarily consented' to assume it, then appellants were not entitled to recover. The jury, after hearing all the evidence and instructions returned a verdict for appel-lee manufacturing company.

On appeal five issues are presented for our consideration: First, that under strict liability there can be no assumption of risk if the injury is foreseeable and preventable; second, that no evidence was introduced supporting a finding that decedents assumed the risk; third, that assumption of risk is not a defense to an allegation of failure to warn or failure to instruct; fourth, that if an assumption of risk theory is proper, the instruction must be directed to the particular risk assumed; and fifth, that the lower court should have instructed the jury on the theory of negligence as well as strict liability. We find all these issues to be without merit and accordingly affirm the jury verdict.

Appellant’s first, second and third issues are interrelated and thus will be considered together. The first issue is that assumption of risk instructions should not have been allowed because the silos were so dangerous that appellee should have been required to make the product absolutely safe either by providing equipment to assure proper ventilation or by supplying instructions on how the silos could be properly ventilated. Appellants’ argument is that under strict liability appellee should be held absolutely liable regardless of decedents’ knowledge of the dangerous condition.

As there has been no dispositive Utah Supreme Court decision on whether it would even accept the theory of strict liability, we must follow the commonly accepted rule that when state law is unsettled the views of the resident district judge carry extraordinarily persuasive force on appeal. Sade v. Northern Natural Gas Co., 483 F.2d 230 (10th Cir. 1973); Marken v. Goodall, 478 F.2d 1052 (10th Cir. 1973); Moomey v. Massey Ferguson, Inc., 429 F.2d 1184 (10th Cir. 1970). The district court held that Utah would apply strict liability in the instant case, and we have found nothing to convince us otherwise. After giving deference to the district court’s decision on strict liability, we should also give deference to its decision to allow assumption of risk as an affirmative defense. Utah has adopted assumption of risk as an affirmative defense in other kinds of tort liability, and it is reasonable to assume it would also adopt it for strict liability. Harrop v. Beckman, 15 Utah 2d 78, 387 P.2d 554 (1963).

Once it is determined that assumption of risk is a proper defense to strict'liability, appellants’ second and third issues become questions for jury determination. Whether the evidence supported a finding that decedents assumed the risk by entering the unventilated silo and whether the appellee failed to warn or instruct decedents of the hazardous conditions are not for us to decide on appeal. As we have noted on other occasions, jury determinations are presumed correct and will not be preempted unless they are clearly against the weight' of evidence. Jaeco Pump Co. v. Inject-O-Meter Mfg. Co., 467 F.2d 317 (10th Cir. 1972); Champion Home Builders v. Shu-mate, 388 F,2d 806 (10th Cir. 1967).

The evidence most favorable to appel-lee indicates that Quentin and Dean had ventilated the silos on other occasions. Quentin had been overcome by carbon dioxide once before, and had been warned of the dangers involved in using an oxygen free silo. Dean unquestionably understood the dangers of carbon dioxide and on occasion had explained to others the need for completely ventilating the silos. There was expert testimony that by opening up a roof hatch and a lower door the silo could be properly ventilated. Other evidence indicated' that by smelling the ensilage odors one could determine when the silo was properly ventilated. Before Dean or Quentin opened the second door he had passed over a sign warning of danger to life if entering the silo before properly ventilating it. The Court of Appeals as a factfinder might have drawn a different conclusion, but there certainly is sufficient evidence to support the jury’s determination. Union Carbide & Carbon Corp. v. Nisley, 300 F.2d 561 (10th Cir. 1962).

Appellants next argue the lower court should have instructed the jury that before decedents could assume the risk they must have had knowledge of the particular risk they were assuming. In other words, it was not sufficient for decedents to know that high moisture oxygen free silos were dangerous; they must also have known that a high concentration of carbon dioxide will cause almost immediate unconsciousness, they must have known how to properly ventilate the silo, and they must have known when it was safe to enter the silo.

As noted previously, in Utah assumption of risk is an affirmative defense. If plaintiff knows, appreciates and has a reasonable opportunity to make an alternative choice, then the defense is available. Evans v. Stuart, 17 Utah 2d 308, 410 P.2d 999 (1966); Jacques v. Farri-mond, 14 Utah 2d 166, 380 P.2d 133 (1963); Johnson v. Hartvigsen, 13 Utah 2d 322, 373 P.2d 908 (1962). In the instant case the district court defined assumption of risk as (1) knowledge of the danger and (2) a free and voluntary consent to assume it. The district court explained that in determining whether Quentin or Dean voluntarily assumed the risk the jury could consider decedents’ ages, experience and capacity along with all other surrounding circumstances which might show whether they knew or appreciated the risk involved. This instruction was sufficient for it allowed the jury to determine from the circumstances whether decedents knew the dangers of carbon dioxide, knew how to properly ventilate the silo, and knew when the silo could be entered safely.

Appellants’ final argument is that the case should have been submitted to the jury on negligence as well as strict liability. It was the trial court’s opinion that appellants’ case was basically a products liability case — failure to properly design the silo and failure to warn of a known hazard. The trial judge was therefore concerned that instructing on both strict liability and on negligence, with their respective affirmative defenses of assumption of risk and contributory negligence, would cause unnecessary confusion of the jurors. We agree. There was no independent evidence submitted by appellants directed toward the theory of negligence alone. Appellants presented no evidence that appellee’s silos were negligently manufactured, nor was there any evidence that the warning signs had been negligently constructed. On the contrary, the evidence shows the silos to have been manufactured as intended and the warning signs to have been written only after it was decided what warning would be most effective. Thus if there was any negligence, it related only to failure to properly design the silo or failure to warn of a known hazard, and it was adequately covered under the strict liability instructions. By instructing on strict liability, appellants were given the advantage of not having to show fault by appellee and not having to show a lack of contributory negligence on the part of decedents. To that extent, appellants’ burden of proving liability was decreased. In this situation we cannot understand how appellants were prejudiced by the court’s failure to instruct on ordinary negligence.

Affirmed.

      . INSTRUCTION NO. 17. There is a legal principle commonly referred to by the term “assumption of risk.” One is said to assume a risk when he voluntarily and unreasonably proceeds to encounter a known danger. The essential elements of assumption of risk are: First: Knowledge of the danger; and Second : A free and voluntary assent to assume it. One who has thus assumed a risk is not entitled to recover for the damage which results from the dangerous condition to which he has thus exposed himself.
      If you find from a preponderance of the evidence that Quentin Peart assumed the risk, or as it applies to C. Dean Smith, that he assumed the risk, as that term has been defined in the preceding paragraph, and that such conduct on his part was a proximate cause of his death, then you should return a verdict in favor of the defendant and against the set of plaintiffs. . . .
      INSTRUCTION NO. 18. In determining whether Quentin Peart or Dean Smith voluntarily assented to, or assumed, a risk so as to bar recovery of damages for injury, you may consider their age, experience and capacity, along with all the other surrounding circumstances as shown by the evidence, in determining whether Quentin Peart or Dean Smith knew and appreciated the risk involved.
      INSTRUCTION NO. 19. Before assumption of risk will bar recovery, it must be voluntary. To be voluntary, these two factors must be present: First, the person in question must have full knowledge of the danger; Second, he must have freedom of choice. This freedom of choice must come from the circumstances that provide him a reasonable opportunity, without violating any legal or moral duty, to safely refuse to expose himself to the danger in question.


source: Caselaw Access Project

author: LIVELY, Circuit Judge.

license: Public Domain

text:
    INTERNATIONAL NEWS DISTRIBUTORS, INC., Plaintiff-Appellant, v. Thomas H. SHRIVER, District Attorney General for the Tenth Judicial Circuit, and Richard P. McCully, Assistant District Attorney General for the Tenth Judicial Circuit, Defendants-Appellees.
    No. 73-1184.
    United States Court of Appeals, Sixth Circuit.
    Argued Oct. 12, 1973.
    Decided Dec. 19, 1973.

      Gilbert H. Deitch, Atlanta, Ga., for plaintiff-appellant; Larry D. Woods, Nashville, Tenn., Robert Eugene Smith, Baltimore, Md., on brief.
    C. Hayes Cooney, Asst. Atty. Gen. of Tenn., Nashville, Tenn., for defendants-appellees; David M. Pack, Atty. Gen. of Tenn., Nashville, Tenn., of counsel.
    Before EDWARDS, and LIVELY, Circuit Judges, and CECIL, Senior Circuit Judge.
   LIVELY, Circuit Judge.

The issue before the court on appeal is whether the district judge properly dismissed that portion of an action seeking a declaratory judgment that certain statutes of Tennessee are unconstitutional as written and applied and seeking to enjoin enforcement of the statutes in question. The complaint alleges that the plaintiff deals in press materials which are presumptively protected by the First Amendment. It is claimed that the defendants, under color of the provisions of Tennessee Code Annotated §§ 39-3003 — 39-3008, by bad faith enforcement and harassment, have deprived the plaintiff of rights guaranteed by the First, Fourth, Fifth and Fourteenth Amendments to the Constitution of the United States and have deprived the public of access to non-obseene materials protected by the First and Fourteenth Amendments. The complaint then recites a number of occasions in which employees of the plaintiff have been arrested without warrants and subsequently indicted for violation of the Tennessee obscenity statutes which are under attack. In addition it is claimed that “inspection raids” have been made by the defendants and that inventories of the plaintiff’s stores and warehouse have been made pursuant to illegally obtained search warrants. It is claimed that the actions of the defendants constitute an impermissible prior restraint, that the actions of the defendants have had a “chilling effect” on the exercise of plaintiff’s constitutional rights and that the plaintiff will be irreparably harmed as a result of substantial interference with advantageous business relations. No request for a three-judge court is included in the complaint.

Jurisdiction is asserted under the various constitutional provisions recited in the complaint and under 28 U.S.C. § 1343(3), 42 U.S.C. § 1983, 42 U.S.C. § 1985(3) and 28 U.S.C. § 1343(4). In addition to seeking preliminary and permanent injunctions and a declaration of rights as to the constitutionality of the Tennessee obscenity statutes, the complaint demands return of all property belonging to the plaintiff which had been seized by the defendants and that the court set the matter for trial to determine damages.

The defendants filed a motion for summary judgment together with affidavits that their activities represented a good faith attempt by them to perform the duties of their offices in enforcing the laws of Tennessee and denying that any of their actions had been taken in bad faith or that the plaintiff was being harassed. The plaintiff made no response to these affidavits and the district court entered a Memorandum stating that it “declines to interfere with the pending enforcement of the obscenity statutes of the State of Tennessee through its criminal processes or through its injunctive powers. Further, this court refuses to entertain this suit as a declaratory judgment action.” The district court went on to note the allegations of civil rights violations including allegations of bad faith and harassment and retained the cause as a suit for damages for violation of the plaintiff’s civil rights. Pointing out that the Memorandum was not to be taken as an expression of views as to the merits of the case or the truth of the allegations, which would require an evidentiary hearing for determination, the court ordered the cause dismissed as to all relief except damages.

Title 28 U.S.C. § 2281 provides that a district court or judge thereof may not grant an injunction restraining enforcement of a state statute by restraining the action of a state officer on the ground of unconstitutionality of such statute without a hearing and determination by a district court of three judges convened pursuant to 28 U.S.C. § 2284. Upon filing of an application for an injunction restraining the enforcement of any state statute on the ground that it is unconstitutional, the district judge to whom the application is presented is required by 28 U.S.C. § 2284(1) to notify the chief judge of the circuit immediately in order that two other judges may be designated to constitute the court. The fact that the plaintiff did not request a three-judge court in this case is immaterial, since it is the duty of the district court to determine whether there is a need for such a coui't. Grove Press, Inc. v. Flask, 417 F.2d 1062 (6th Cir. 1969).

The duty of the district judge to request a three-judge court is not absolute, however, and if he determines that there is no substantial constitutional question involved, he may dispose of the case as a one-judge court. Jones v. Branigin, 433 F.2d 576 (6th Cir. 1970), cert. denied, 401 U.S. 977, 91 S.Ct. 1205, 28 L.Ed.2d 327 (1971). In the present case the district judge based his dismissal of the claims for injunctive and declaratory judgment relief on the holdings of the United States Supreme Court in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) and five other cases decided on the same day and on the Sixth Circuit decision in American News Co. v. Ladas, 454 F.2d 1237 (6th Cir. 1972). If these decisions which the district judge relied upon clearly prohibit the district court from granting the relief sought, no substantial constitutional question is raised and the failure of the district judge to request the convening of a three-judge court was not error. Scott v. Hill, 449 F.2d 634 (6th Cir. 1971), cert. denied, 405 U.S. 928, 92 S.Ct. 979, 30 L.Ed.2d 801 (1972).

In Younger v. Harris, supra, Mr. Justice Black, speaking for the majority, set forth the reasons which require federal courts to refrain from issuing injunctions against pending criminal proceedings in state courts. Quoting from Fenner v. Boykin, 271 U.S. 240, 243, 46 S.Ct. 492, 70 L.Ed. 927 (1926), the opinion points out an exception which permits federal intervention “under extraordinary circumstances where the danger of irreparable loss is both great and immediate.” The opinion further defines irreparable injury as a “threat to the plaintiff’s federally protected rights . . . that cannot be eliminated by his defense against a single criminal prosecution.” 401 U.S. at 46, 91 S.Ct. at 751. In Perez v. Ledes-ma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed. 2d 701 (1971), a case involving prosecutions under a Louisiana obscenity statute, the Court, speaking again through Mr. Justice Black, dealt with the irrepa-rabie injury exception in the following language: “Only in cases of proven harassment or prosecutions undertaken by state officials in bad faith without hope of obtaining a valid conviction and perhaps in other extraordinary circumstances where irreparable injury can be shown is federal injunctive relief against pending state prosecutions appropriate.” 401 U.S. at 85, 91 S.Ct. at 677.

In American News Co. v. Ladas, supra, the district court conducted a hearing under an agreed statement of facts. The complaint in that case alleged bad faith law enforcement and harassment, but the district judge made no finding of fact on this issue and this court held that the record contained no evidence of such bad faith. In the present case, the allegations of bad faith and harassment were refuted by affidavits of the defendants, but there was no hearing or finding of fact on this issue. In his Memorandum the district judge referred to the allegations of bad faith and harassment and held that they were sufficient to require a trial on the plaintiff’s demand for damages for violations of its civil rights. If the allegations of harassment and bad faith were sufficient to raise an issue on the claim for damages, they also raised the issue of whether such extraordinary circumstances were present in this case as to permit the federal court to enjoin enforcement of the Tennessee obscenity statute under the exception recognized in Younger v. Harris, supra, and Perez v. Ledesma, supra. The allegations of bad faith and harassment are not obviously without merit and the injury complained of by the plaintiff, consisting of numerous incidents recited in some detail in the complaint, is not one that can “be eliminated by his defense against a single prosecution.” Younger, supra, 401 U.S. at 46, 91 S.Ct. at 751. A substantial constitutional question is raised by the complaint.

We therefore conclude that this action must be remanded to the district court with directions that the chief judge of the circuit be notified of the application for injunction. This conclusion is reluctantly reached in view of the additional burden which it places on already busy judges. However, we are bound by the statutory scheme which is now in effect. See Calloway v. Briggs, 443 F.2d 296 (6th Cir.), cert. denied, 404 U.S. 916, 92 S.Ct. 230, 30 L.Ed.2d 190 (1971). Of course, once the three-judge court is convened it may consider whether the doctrine of federal abstention would properly permit it, in view of the claim of irreparable injury, to stay its hand voluntarily in order to allow the issues in this case to be first decided by the courts of Tennessee. Scott v. Hill, supra (Concurring Opinion of Judge McCree).

The judgment of the district court is vacated and the cause remanded for further proceedings consistent with this opinion.


author: J. JOSEPH SMITH, Circuit Judge: MULLIGAN, Circuit Judge

text:
    CITIZENS FOR A BETTER ENVIRONMENT, INC., on behalf of itself and its employees, et al., Plaintiffs-Appellants, v. NASSAU COUNTY et al., Defendants-Appellees.
    No. 238, Docket 73-2019.
    United States Court of Appeals, Second Circuit.
    Argued Sept. 18, 1973.
    Decided Nov. 14, 1973.

      Alexander B. Grannis, New York City (Berle, Butzel & Kass, New York City), for plaintiffs-appellants.
    Natale C. Tedone, Deputy County Atty. (Joseph Jaspan, County Atty. of Nassau County, Biagio F. Giaquinto, Senior Deputy County Atty., Mineóla, N. Y., of counsel), for defendants-appel-lees Nassau County and others.
    John Capilli, Deputy Town Atty. (John F. O’Shaughnessy, Town Atty., Town of Hempstead, Francis T. Purcell, and others, as members of the Town Board and Governing Body of the Town of Hemp-stead, of counsel), for defendants-appel-lees Francis T. Purcell, and others.
    Kenneth C. Butterfield, Town Atty., Town of Huntington, N. Y., for defendants-appellees Jerome A. Ambro, Thomas J. Casey, Joseph A. Clemente, Richard V. Holahan and Leonard L. Horn, as the Members of the Town Board of the Town of Huntington.
    Before SMITH, MULLIGAN and OAKES, Circuit Judges.
   J. JOSEPH SMITH, Circuit Judge:

This appeal from denial of a motion for preliminary injunction in the United States District Court for the Eastern District of New York, Anthony J. Travia, Judge, involves the narrow issue of whether plaintiffs are entitled to a preliminary injunction to restrain the police departments of two Long Island counties from enforcing local solicitation ordinances against plaintiffs’ door-to-door educational and fund-raising campaign. We stress this narrow scope, because while it is true that underlying this case is the always delicate balance between one man’s right to express himself and another’s right to be left alone, that troublesome issue is not presented in this appeal. Rather we are asked — as was the district court — to determine whether under state and local law the plaintiffs are completely exempt from local solicitation ordinances which even they concede to be fundamentally valid. For a number of reasons, we agree-That it would have been improper for the district court to have made that determination on motion for a preliminary injunction based on nothing more than the conflicting declarations of the parties. We affirm the denial of preliminary injunction.

Citizens for a Better Environment (“CBE”) is a non-profit, tax-exempt organization registered as such with the Internal Revenue Service under § 501 of the Internal Revenue Code. CBE is also registered with the New York State Department of Social Services and the state Attorney General’s Office pursuant to New York statutes regulating the activities of “charitable” organizations. However, it must be noted at the outset that such registration means only that the registrant holds itself out as a charity, since the broad statutory definition of “charitable organization” includes :

Any benevolent, philanthropic, patriotic, or eleemosynary person or one purporting to be such.

New York Social Welfare Law, § 481, subd. 1 (1966) McKinney’s Consol.Laws, c. 55 [emphasis added],

CBE’s primary activity is sending its employees — a number of whom are individual plaintiffs in this action — door-to-door to talk with residents about environmental problems, distribute the organization’s literature, and solicit contributions for CBE and other environmental groups. Plaintiffs note that in these solicitations, no employee has ever been charged with trespass, disturbing the peace, or a violation of any other law designed to protect life or property.

But between January and May of 1973, at least twenty-six CBE employees were issued appearance tickets for violating local “Hawkers, Peddlers and Solicitors” ordinances in Nassau and Suffolk Counties. Though the details of these ordinances vary slightly, they all require the licensing of those within their ambit and limit somewhat the time and scope of their solicitations. However, the ordinances also uniformly exempt “charitable” organizations, and it is, therefore, on the interpretation of such exemptions that this case will ultimately turn.

CBE contends that its non-profit nature, together with its registration under the state solicitation statutes, demonstrates conclusively that it is so exempt. The county officials counter that the state registration proves only that CBE has declared itself a “charitable organization” to state authorities who, while registering CBE, have carefully declined to put their imprimatur on it as a true “charity.” The officials further argue that the fact that CBE raises funds for other environmental groups makes it a “professional fund raiser,” and not a charity, under the same state law:

Professional fund raiser. Any person who for compensation or other consideration plans, conducts, manages, or carries on any drive or campaign in this state for the purpose of soliciting contributions for or on behalf of any charitable organization or any other person, or who engages in the business of, or holds himself out to persons in this state as independently engaged in the business of soliciting contributions for such purpose. A bona fide officer or employee of a charitable organization shall not be deemed a professional fund raiser.
[W]e wish to inform you that this Bureau does not give any opinions as to merits, finances or any other qualification regarding a charitable organization. In his opposing affidavit, James ICetcham, Deputy Police Commissioner of Nassau County, stated that he had been informed, in the spring of 1973, that CBE had been declared “non-charitable” and been denied permission to solicit by the New York City Department of Social Services, and that CBE’s status was again under investigation by the state Attorney General’s Office. Counsel for CBE denied both charges.

New York Social Welfare Law § 482-e (1) , McKinney’s Consol.Laws c. 55.

Finally, they argue that the fact that CBE allows its employees to keep twenty-five percent of all they solicit, makes the individual plaintiff-employees “solicitors” who must also register with the state:

Solicitor.
Any person who is employed or. retained for compensation by a professional fund raiser to solicit contributions for charitable purposes from persons in this state.

New York Social Welfare Law § 482-e (2) ; see § 482-h, McKinney’s Consol. Laws c. 55.

Following the ticketing of its employees, CBE and the ticketed individuals instituted this action under the Civil Rights Act, 42 U.S.C. § 1983, claiming the deprivation of various constitutional rights and asking for both damages and injunctive relief from the alleged campaign of police harassment. On June 22, 1973, the district court heard plaintiffs’ motion for a preliminary injunction. Unfortunately, neither side was prepared to present any evidence to support their conflicting affidavits concerning CBE’s activities and status. After hearing argument, the district judge denied the motion, stating that the papers and affidavits convinced him that there were serious questions concerning CBE’s status that should be resolved initially in the state courts. However, the district court retained jurisdiction over all other elements of the case. Appellants are, therefore, appealing only the denial of the preliminary injunction.

I. The Denial of Relief for the Individual Plaintiffs

The initial contention of the county officials that the anti-injunction provision in 28 U.S.C. § 2283 operates as a complete bar to any injunctive relief in this case is clearly incorrect. In Mitchum v. Foster, 407 U.S. 225, 242-243 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972), the Supreme Court clearly held that the Civil Rights Act is within the “expressly authorized by Act of Congress” exception to § 2283, and that, therefore, in such eases injunctive relief may be granted even to the extent of enjoining state court proceedings. But as the Mitchum Court immediately cautioned, this is not to say that a § 1983 action is in any sense exempt from the normal rules of federal abstention and deference to the state courts:

[W] e do not question or qualify in any way the principles of equity, comity, and federalism that must restrain a federal court when asked to enjoin a state court proceeding. These principles, in the context of state criminal prosecutions, were canvassed at length last Term in Younger v. Harris, 401 U.S. 37 [91 S.Ct. 746, 27 L.Ed.2d 669], and its companion cases. They are principles that have been emphasized by this Court many times in the past. Fenner v. Boykin, 271 U.S. 240 [46 S.Ct. 492, 70 L.Ed. 927]; Spielman Motor Sales Co. v. Dodge, 295 U.S. 89 [55 S.Ct. 678, 79 L.Ed. 1322] ; Beal v. Missouri Pac. R. Co., 312 U.S. 45 [61 S.Ct. 418, 85 L.Ed. 577]; Watson v. Buck, 313 U.S. 387 [61 S.Ct. 962, 85 L.Ed. 1416]; Williams v. Miller, 317 U.S. 599 [63 S.Ct. 258, 87 L.Ed. 489]; Douglas v. City of Jeannette, 319 U.S. 157 [63 S.Ct. 877, 87 L.Ed. 1324]; Stefanelli v. Minard, 342 U.S. 117 [72 S.Ct. 118, 96 L.Ed. 138]; Cameron v. Johnson, 390 U.S. 611 [88 S.Ct. 1335, 20 L.Ed.2d 182].

Id. at 243, 92 S.Ct. at 2162. See also, 407 U.S. 243-244, 92 S.Ct. 2151 (Burger, C. J., concurring).

Thus, to the extent the individual plaintiffs are seeking to enjoin the criminal actions pending against them, Younger must control. There, the Court reviewed a number of its prior decisions in holding that where a federal court is asked to enjoin state criminal proceedings, “even irreparable injury is insufficient unless it is both ‘great and immediate.’” 401 U.S. 37, 46, 91 S.Ct. 746, 751, 27 L.Ed.2d 669 (1971).

Appellants seek to avoid Younger and its companion cases, by comparing this case to Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), the most notable exception to the Younger philosophy of federal restraint. But as summarized in Younger, Dom-browski involved an extraordinary set of circumstances:

The appellants in Dombrowski had offered to prove that their offices had been raided and all their files and records seized pursuant to search and arrest warrants that were later summarily vacated by a state judge for lack of probable cause. They also offered to prove that despite the state court order quashing the warrants and suppressing the evidence seized, the prosecutor was continuing to threaten to initiate new prosecutions of appellants under the same statutes, was holding public hearings at which photostatic copies of the illegally seized documents were being used, and was threatening to use other copies of the illegally seized documents to obtain grand jury indictments against the appellants on charges of violating the same statutes.

401 U.S. 37, 48, 91 S.Ct. 746, 752, 27 L.Ed.2d 669 (1971). See also, Dombrow-ski v. Pfister, 380 U.S. 479, 487-488, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965).

While the plaintiffs here have alleged police harassment, they have not suggested, and certainly have not proven, any of the specific harassing tactics involved in Dombrowski. As only one important point of distinction, where in Dombrow-ski the state courts had previously rejected the prosecutor’s sham case, here they have had no opportunity to consider the real questions about CBE’s status under state and local law. In this regard, it must be remembered that the plaintiffs challenge only the application, and not the fundamental validity, of the local ordinances.

Nor has CBE suggested any motive for this alleged campaign of police harassment — unless we are to believe that, as a general rule, environmentalists in 1973 Long Island are as feared and despised as were civil rights activists in 1963 Louisiana. In short, we believe the conflicting affidavits before the district court hardly demonstrate the bad faith harassment necessary to enjoin a pending state criminal action.

Finally, we wish to note in this regard that both this court and the district court have been assured that the individual plaintiffs will be tried in the immediate future and that whatever delay has occurred thus far has been due to the mutual agreement of the parties to litigate this issue in the federal courts. We trust that now that we have made it clear that the question of CBE’s status belongs, at least initially, in the state courts, these rather routine cases will be tried as soon as possible. Should county officials delay in providing such a speedy resolution of the key issue in this case, the plaintiffs would, of course, be free to return to the district court for injunctive relief against what might then appear to be purely harassment prosecutions. See Broughton v. Brewer, 298 F.Supp. 260, 264, 266-267 (S.D.-N.D.Ala. 1969) (three-judge court).

II. The Denial of Relief as to CBE

CBE argues that Younger bars injunctions only where the complaining party is an actual defendant in a pending criminal prosecution, and that since CBE itself is not such a defendant, the district court improperly denied its motion for an injunction protecting its solicitors from future police action. We find this distinction persuasive, but not disposi-tive.

It is, of course, true that Younger, is directed toward those actually involved in a criminal proceeding. Indeed the first section of the Court’s opinion is devoted to excluding from the remainder of the decision those plaintiffs who had not been indicted or threatened with criminal prosecution. Younger v. Harris, 401 U.S. 37, 41-42, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). However, the Court was careful to note that:

If these three [plaintiffs] had alleged that they would be prosecuted for the conduct they planned to engage in, and if the District Court had found this allegation to be true — either on the admission of the State’s district attorney or on any other evidence — then a genuine controversy might be said to exist.

Id. at 42, 91 S.Ct. at 749.

CBE clearly meets this standard, for while it has not been charged with any offense, its very existence as a soliciting organization is obviously threatened by the fact that the police intend to continue to invoke the solicitation ordinances against its employees. This does not, of course, mean that CBE can seek to enjoin the individual cases already pending. It would be bizarre, and a clear frustration of Younger, to hold that a federal court can enjoin a valid state criminal prosecution merely because the ease is of importance to some non-indicted third party.

But CBE’s real interest in the proper application of the local solicitation ordinances does entitle it to seek injunctive relief against future police action against it or its solicitors. See Thoms v. Heffernan, 473 F.2d 478, 482-483 (2d Cir. 1973), petition for cert. filed April 9, 1973, 42 U.S.L.W. 3019 (1973). See also, Lake Carriers’ Association v. Mac-Mullan, 406 U.S. 498, 509, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972) ; Younger v. Harris, 401 U.S. 37, 55, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) (Stewart and Harlan, JJ., concurring).

In so holding we recognize, as did the court in Thoms, that the class of plaintiffs with a justiciable interest in the enforcement of a criminal statute, who are not also defendants in a criminal proceeding, is exceedingly narrow. See Thoms v. Heffernan, supra, at 483-485 of 473 F.2d. However we believe the Court in Younger did intend to preserve injunctive relief for such a narrowly defined class, “and that CBE is within it. See Younger v. Harris, 401 U.S. 37, 42, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Cf. Lewis v. Kugler, 446 F.2d 1343, 1349 (3d Cir. 1971).

However, while CBE is thus entitled to seek a preliminary injunction against future enforcement of the solicitation ordinances, we must agree with the district court that the organization failed to show it was entitled to one. It must be remembered that, even apart from the special requirements of Younger, such preliminary relief is within the equitable discretion of the trial court, and that it requires a showing of both a likelihood of prevailing on the merits and irreparable injury that can be avoided only by the court’s immediate intervention. Brown v. Chote, 411 U.S. 452, 454-457, 93 S.Ct. 1732, 36 L.Ed.2d 420 (1973); Berrigan v. Norton, 451 F.2d 790, 793 (2d Cir. 1971); Katz v. McAulay, 438 F.2d 1058, 1060 (2d Cir. 1971), cert. denied, 405 U.S. 933, 92 S.Ct. 930, 30 L.Ed.2d 809 (1972); 7 J. Moore, Federal Practice [¶] 65.04[l-2] (2d ed. 1966). Here the conflicting affidavits before the district court failed to satisfy either burden.

First, at the risk of becoming repetitious, it must again be noted that CBE does not question the validity of the local ordinances. This is not, therefore, an action challenging a statute or ordinance as facially invalid under the First Amendment — the type of case where abstention by a federal court has rightly been held to be unwarranted and unwise. See Zwickler v. Koota, 389 U.S. 241, 248-252, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967); Dombrowski v. Pfister, 380 U.S. 479, 483-485, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1964); Thoms v. Heffernan, 473 F.2d 478, 486 (2d Cir. 1973), petition for cert. filed April 9, 1973, 42 U.S.L.W. 3019 (1973); Long Island Moratorium Committee v. Cahn, 437 F.2d 344, 345-350 (2d Cir. 1970). Rather it is one involving the application and interpretation of concededly valid state and local laws — the type of case where abstention is certainly prudent if not mandated. See Askew v. Hargrave, 401 U.S. 476, 477-478, 91 S.Ct. 856, 28 L.Ed.2d 196 (1971); Reetz v. Bozanich, 397 U.S. 82, 86-87, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970) ; Harman v. Forssenius, 380 U.S. 528, 534-535, 85 S.Ct. 1177, 14 L.Ed.2d 50 (1965); Russo v. Kirby, 453 F.2d 548, 552 (2d Cir. 1971); Reid v. Board of Education of City of New York, 453 F.2d 238, 241-243 (2d Cir. 1971).

Here the issues of state and local law, while perhaps not complex, are open to honest doubt. Most notably there are still serious questions concerning the nature of CBE’s campaign and the import of its registration as a charitable organization under state law. Rather than attempt to resolve these issues in an evi-dentiary hearing, CBE rested its motion for preliminary relief on the conflicting affidavits and declarations of CBE and county officials. Given that these same issues were soon to be tried in the state courts, we can hardly say the district judge abused his discretion in denying this motion for a preliminary injunction.

Similarly, while CBE claimed that it was being irreparably injured by the local prosecutions and that only a federal injunction could save its operation, it failed to meet its heavy burden on the question of irreparable harm. Rather the court was again faced with conflicting affidavits as to CBE’s attempt to comply with the local ordinances — a course of action that would have allowed CBE to continue its solicitation campaign while still itigating its right to be exempt from the ordinances completely.

In sum, we find that by failing to demonstrate either a clear likelihood of ultimately prevailing on the merits or of unavoidable and irreparable injury, CBE failed to meet the heavy burden imposed on any plaintiff seeking a preliminary injunction. That burden obviously becomes all the greater when the critical unresolved questions involve interpretations of state and local law which will soon be before the state courts.

This is not, of course, to suggest that CBE’s position may not ultimately prevail in the state or federal actions. We assume that the state courts will soon render judgments in the cases of the individual solicitors, and that the district court will proceed with all deliberate speed to try the plaintiffs’ civil rights action. Should the district court find that plaintiffs have in fact been denied their civil rights by arbitrary police action, then damages and permanent injunctive relief would properly be in order. But we cannot say that faced with an array of conflicting, self-serving affidavits, the district court abused its discretion in denying preliminary relief.

The denial of preliminary injunction is affirmed.

MULLIGAN, Circuit Judge

(concurring) :

I agree with the result reached by the majority here and concur separately only because I disagree with the dicta that CBE has standing to enjoin future police action against it or its solicitors. There is no threat by the defendants here to bring any criminal prosecutions against CBE. The only harm being suffered by CBE results from the activities of its solicitors. The local police and agencies who were joined here as defendants, while they do have an interest in protecting their citizens from the harassment of unlicensed solicitation, do not have any jurisdiction over or direct interest in the bona fides of CBE’s status as a charitable corporation. This is the responsibility of the Attorney General of the State of New York or the Internal Revenue Service, neither of which is a party here and neither of which has apparently threatened any action against CBE. Justiciability not only involves the requirement that the plaintiff have some interest threatened but that the defendant should have an interest or responsibility to controvert it. See Holtz-man v. Schlesinger, 484 F.2d 1307, 1315 (2d Cir. 1973). Hence, while Thoms v. Heffernan, 473 F.2d 478 (2d Cir. 1973) would support an action by other solicitors who are threatened precisely as those individual plaintiffs here are, I would not extend it to include the corporate entity whose status is properly the concern of State and Federal agencies not joined as defendants.

The Fifth Circuit reached a result contrary to Thoms in Becker v. Thompson, 459 F.2d 919, rehearing and rehearing en banc denied, 463 F.2d 1338 (1972) and the Supreme Court has granted certiorari (410 U.S. 953, 93 S.Ct. 1424, 35 L.Ed.2d 686 (1973)) to consider the case.

Perhaps the Court’s opinion there will cast light upon this question, which is hardly as clear as a mountain lake in springtime.

      . CBE has never contended that the local ordinances are so restrictive as to frustrate its right to conduct an educational, fund-raising campaign. CBE even concedes that it would be constitutional for the towns to eliminate the charitable exemption entirely and thus apply the ordinances to all solicitors — including CBE. See also, National Foundation v. City of Fort Worth, 415 F.2d 41 (5th Cir. 1969), cert. denied, 396 U.S. 1040, 90 S.Ct. 688, 24 L.Ed.2d 684 (1970) (upholding a municipal solicitation ordinance applied to charities.). CBE concedes the validity of National Foundation, but merely insists that since the town fathers saw fit to exempt charities in Long Island, CBE is immune as a matter of state and local— though not constitutional — law.
      Alternatively, CBE argues that' unless there is a necessary equation between the definitions of “charitable organization” in the federal tax code, state fraud laws, and local solicitation ordinances, the last of the three must be unconstitutionally vague. We reject this contention.
      First, as discussed elsewhere in this opinion, neither the I.R.S. nor state officials has ever actually determined, on the basis of an independent inquiry, that CBE is in fact a “charitable organization.” See text, pp. 1356-1358 & notes 2 and 6 infra. Indeed county officials have never contended that the definition in their local ordinances is different from that of state authorities; rather they argue that, as they understand the facts, CBE does not qualify as a charity under either definition.
      Moreover, we do not believe that, despite the honest doubts about CBE’s status, the term “charitable organization” is so imprecise or susceptible to arbitrary interpretation as to invoke the vagueness doctrine. Compare, Grayned v. City of Rockford, 408 U.S. 104, 108-114, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) unth Papachristou v. City of Jacksonville, 405 U.S. 156, 158-171, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972).

      . Before the district court, counsel for CBE conceded that this tax-exempt determination did not include any finding that CBE was a charity. In fact, the form determination letter sent to CBE states only that, “Based on information supplied, and assuming your operations will be as stated in your application for recognition of exemption, we have determined you are exempt from Federal income tax under section 501 (e) (3) of the Internal Revenue Code.”
      However, a “charitable” organization is only one of a number of different groups exempted by § 501(c) (3) :
      Corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or for the prevention of cruelty to children or animals.
      26 U.S.C. § 501(c) (3).

        Nowliere in the I.R.S. letter does the Service mention the term “charitable”; and, as the quoted portion of the I.R.S. letter shows, this “determination” did not involve any actual inquiry into the claims made by CBE in its request.

      . CBE does admit, however, that in the summer of 1972 the tactics of some of its solicitors provoked an investigation by the Charity Frauds Bureau of the State Attorney General’s Office. On July 26, 1972, CBE and the Attorney General entered into an agreement, stating, inter alia:

      [B]ased upon this investigation [the Attorney General’s Office] believes that Citizens for a Better Environment, Inc., has been engaged in improper, unreasonable and careless solicitation practices not in the public interest and which have interfered with and annoyed divers citizens of the State of New York and may be in violation of the Not-For-Profit Corporation Law, Sections 1101 and 1303, McKinney’s Con-sol.Laws, c. 35, as well as various local ordinances pertaining to solicotors (sic) and peddlers; and . . . the Attorney General was about to commence an action against Citizens for a Better Environment, Inc., to enjoin the continuation of such acts and practices. . . . [emphasis added].
      The parties further agreed that CBE would not
      (1) gain entry to private homes and properties for the purpose of soliciting funds in violation of the New York State Not-For-Profit Corporation Law, and local ordinances pertaining to peddling or soliciting, as these local ordinances affect not-for-profit organizations;
      (2) interfere with, annoy, harass or intimidate any member of the public in order to solicit funds for its corporate purposes;
      (3) use a request for signatures on a purported petition for environmental protection as a subterfuge to gain entry to private property for the purpose of soliciting funds for its corporate purposes, or any other subterfuge for the same purposes. In a press release issued with the agreement, the Attorney General’s Office reported that:
      Numerous complaints were received by the Attorney General’s office to the effect that some of the organization’s solicitors were demanding “contributions” of $3.
      And the release again noted that such activity was in violation of local solicitation ordinances, as well as state fraud statutes.

      . The tickets, attached as exhibits to CBE’s complaint, informed the solicitors that they had to appear in local county courts at times ranging from seven to thirty days after the date of their alleged violations. Apparently in one instance a solicitor refused to give his name to the “apprehending” officer and was, therefore, brought to the local station house. lie was subsequently released after his identity was established.

      . The ordinance of the Town of Hempstead, where a number of the tickets were issued, is representative of its genre. In relevant part, it provides:
      § 118-1. Definitions.
      Solicit — Means to go from house to house, street to street, place fo place or from store to store, to sell or take orders for goods, wares, merchandise or provisions for future delivery, or for services to be performed, or for information to be obtained, or to distribute advertising matter, at any place within the Town of Hemp-stead other than that from a fixed place of business.
      § 118-2. License required.
      It shall be unlawful for any person or company to peddle or solicit within the Town of Hempstead without having first obtained a valid license therefor as provided herein.
      § 118-8. Application.
      Applicants for a license under this chapter must file with the Town Clerk an application in the form of a sworn affidavit in duplicate on a form to be supplied by the Town Clerk, which shall give the following information:
      A. Name and description of applicant.
      B. Address of applicant (local and legal).
      C. A brief description of the nature of the business and the kind of goods or property to be peddled or solicited.
      D. A statement as to whether or not the applicant has ever been convicted of any crime, misdemeanor or violation of any municipal ordinance, the nature of the offense and the punishment or penalty assessed therefor.
      E. Three (3) photographs of the applicant taken not more than sixty (60) days prior to the date of filing of the application, which pictures shall be not larger than one and one-half by one and one-half (1% x iy2) inches showing the head and shoulders of the applicant in a clear and distinguishing manner.
      F. Statement that the applicant is a citizen and whether citizenship was obtained by birth or naturalization. If by naturalization, date and place where obtained.
      G. If employed, the name and address of such employer, together with credentials establishing the exact relationship.
      H. If for a vehicle license, a description of the vehicle, together with license number or other means of identification.
      I. If applicant is' a company, name and address and title of officer of company upon whom process or other legal notice may be served.
      § 118-4. Investigation and issuance.
      A. Upon receipt of such application, one (1) copy shall be referred to the Nassau County Police Department for such investigation of the applicant to be made as it deems necessary for the protection of the public good.
      B. If such investigation should prove the applicant to have a police record, the Police Department shall attach to such application a copy of the applicant’s police record, and shall return the application to the Town Clerk.
      § 118-5. Pees.
      The following fees shall be paid by the applicant at the time that the application for a license is submitted to the Town Clerk:
      A. Por each person proposing to peddle or solicit, whether on foot or from a licensed vehicle, five dollars ($5.)
      § 118-9. Use of streets.
      No peddler or solicitor shall have any exclusive right to any location in the public streets, nor shall any peddler or solicitor be permitted to sell wares within two hundred (200) feet of a school between the hours of 8:00 a. m. and 4:00 p. m. on a school day, nor shall he be permitted to stand in one (1) place for more than fifteen (15) minutes, nor shall he be permitted to stop within two hundred (200) feet of a previous stop, nor shall he be permitted to operate in any congested area where his operation might impede or inconvenience the public. Por the purpose of this chapter the judgment of any police officer, exercised in good faith, shall be deemed conclusive as to whether the area is congested or the public impeded or inconvenienced.
      § 118-10. Prohibition.
      A. It shall be unlawful for any person to enter upon private property for the purpose of peddling or soliciting, except upon the invitation of the owner or occupant. (Amended 6-13-72 by L.L. No. 62-1972, effective 6-19-72)
      § 118-13. Exemption.
      This chapter will not apply to religious, charitable or veteran organizations, or the distribution of a printed paper which is distributed, at stated intervals, to convey news.
      § 118-16. Revocation of license.
      A. Licenses issued under the provisions of this chapter may be revoked by the Town Clerk of the Town of Hempstead after notice and hearing for any of the following causes:
      (1) Fraud, misrepresentation or false statement contained in the application for license.
      (2) Fraud, misrepresentation or false statement made in the course of carrying on his business as peddler or solicitor.
      (3) Any violation of this chapter.
      (4) Conviction of any crime or misdemean- or involving moral turpitude.
      (5) Conducting the business of peddling in an unlawful manner or in such a manner as to constitute a breach of the peace or to constitute a menace to the health, safety or general welfare of the public.

        § 118-17. Appeal.
      Any person aggrieved by the action of tbe Town Clerk in the denial of an application for a license as provided in § 118-4 of this chapter, or in the decision of the Town Clerk with reference to the revocation of a license as provided in § 118-16 of this chapter, shall have the right to appeal to the Town Board of the Town of Hempstead.
      § 118-18. Penalties for offenses.
      Any person or persons, association or corporation committing an offense against this chapter, or any section or provision thereof, is guilty of a violation punishable by a fine not exceeding two hundred fifty dollars ($250.) or imprisonment for a period not exceeding fifteen (15) days for each such offense, or by both such fine and imprisonment.

      . On April 9, 1973, CBE received confirmation from the State Board of Social Welfare that it was registered as a “charitable organization” under the state solicitation laws. However, the letter further stated:

      . In his affidavit, Deputy Commissioner Ketcham stated that Mr. Beren, CBE’s president, had informed him that, including the 25% retained by the solicitor and the 5% given to his supervisor, approximately 65% of the total contributions was retained by CBE for its own expenses. The remaining 35% was passed on to other environmental groups.
      CBE’s literature squares with this breakdown, save that it further informs contributors that the one-third retained by CBE after solicitation expenses supported a free speaker’s bureau, the organization’s newsletter, and a staff of environmental lawyers and investigators.

      . CBE’s literature states that their solicitors —the majority of whom are college students apparently working part time — average $75 a week. In his affidavit, CBE’s former attorney stated that no solicitor • ever made more than $150 a week.

      . CBE and the individual plaintiffs asked for damages of $100,000 for the deprivation of their constitutional rights, $30,000 for lost contributions, and $25,000 in exemplary damages.

      . 28 U.S.C. § 2283. Stay of State court proceedings.
      A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.

      . Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971); Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971); Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971); Dyson v. Stein, 401 U.S. 200, 91 S.Ct. 769, 27 L.Ed. 2d 781 (1971); Byrne v. Karalexis, 401 U.S. 216, 91 S.Ct. 777, 27 L.Ed.2d 792 (1971).

      . Conversely, in differentiating between the claims of CBE and the individual plaintiffs, we are not unmindful of the problem that would face the district court in separating the two groups for purposes of injunctive relief.
      Since we find that CBE is not entitled to any injunctive relief at this time, we need not pursue this question further. We note it, however, to suggest the danger of bringing a joint action with already indicted individuals. See, Note, Implications of tlie Younger Cases for the Applicability of Federal Equitable Relief When No State Prosecution is Pending, 72 Colum.L.R. 874, 896 n. 140 (1972). This problem of severability is yet another factor suggesting that the district court was justified in staying its hand until the original state ■ eases against the individuals had been decided.

      . Appellants’ reliance on our decision in Hull v. Petrillo, 439 F.2d 1184 (2d Cir. 1971) — a case strikingly similar to the one at bar — is notably misplaced. In Hull members of the Black Panther Party sought injunctive relief against police officials who had allegedly threatened to invoke similar solicitation ordinances against members selling the organization’s newspaper. But while in Hull we reversed the district court’s judgment to the extent that it dismissed plaintiff’s complaint entirely, we affirmed the court’s denial of a preliminary injunction prior to a factual hearing on the alleged police harassment:
      We see no reason, however, to reverse the denial of a preliminary injunction. The grant or denial of a motion for a preliminary injunction rests in the sound discretion of the trial court, and may be overturned only upon a showing of abuse of that discretion.

        Id. at 1189.
      This result is particularly noteworthy, since in Hull there was “no doubt” that if the ordinance was construed as applying to plaintiffs’ conduct it would be unconstitutional, and yet there were no pending prosecutions in which the party members could test either their statutory or constitutional defenses. Id. at 1185-1186, 1186-1187, n. 1.

      . Both CBE President Beren and Deputy Commissioner Ketcham state that before the federal action was instituted, they had agreed that, pending a conclusive determination of CBE’s status, CBE would register, and continue to conducts its campaign, under the local ordinances. Mr. Beren, however, states that when he went to register at the Hemp-stead clerk’s office, he was turned away with the argument that since CBE was a charity, no license could be issued.
      Before the district court, counsel for the county offered an affidavit by a Mr. O’B-ourke, apparently an official in the clerk’s office (not part of the record on appeal), stating that the real reason for the refusal was the cloud over the organization’s legitimacy raised by the on-going investigation of its methods. Counsel further noted that CBE had never challenged the denial of their registration request, as is allowed under the Hempstead code.
      It was also noted that nowhere in its moving papers or affidavits had CBE alleged that it had made similar applications, successive or otherwise, to towns other than Hempstead. In his affidavit, Deputy Commissioner Ketcham suggested that one possible explanation for CBE’s failure to press for local registration was that, as its president admitted to Commissioner Ketcham, some of CBE’s solicitors have criminal records. Under the local ordinances, such individuals would be ineligible for registration.


author: RONEY, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Mark Randall WINDSOR, Defendant-Appellant.
    No. 72-3526.
    United States Court of Appeals, Fifth Circuit.
    Dec. 19, 1973.
    Rehearing and Rehearing En Banc Denied April 2, 1974.

      Fred C. Isaac, (Court-appointed), Samuel S. Jacobson, Jacksonville, Fla., Mark Windsor, Gainesville, Fla., for defendant-appellant.
    John L. Briggs, U. S. Atty., Jacksonville, Fla., John J. Daley, Jr., Asst. U. S. Atty., for plaintiff-appellee.
    Before BROWN, Chief Judge, and RONEY and GEE, Circuit Judges.
   RONEY, Circuit Judge:

Mark Randall Windsor was convicted under 50 App. U.S.C.A. § 462(a), for failing to report for induction into the United States Army, D.C., 351 F.Supp. 215. On this appeal he challenges the induction order on three grounds: (1) that the local draft board’s denial of his request for conscientious objector status was invalid because the Board applied an improper standard in considering Windsor’s application, and (2) did not state adequate reasons for denial, and (3) that the Appeal Board’s affirmance of the denial was invalid for failure to state any grounds for its action. Deciding all of these issues in favor of the validity of the induction order, we affirm the conviction.

Windsor was a senior at Gainesville High School, Gainesville, Florida, when he registered for the draft in 1969. After graduation his I-S(H) student deferment was changed to I-A. In October 1970, he was ordered to take the pre-induction physical examination and was .subsequently found fully acceptable for military service. Shortly thereafter, Windsor completed SSS Form 150 petitioning for conscientious objector status.

Although Windsor’s I-A classification was reopened and reviewed, the Local Board unanimously denied his conscientious objector claim and informed him of such in a brief letter from the Board’s executive secretary. That adverse ruling was appealed to the Appeal Board which unanimously affirmed without reasons the Local Board’s denial.

I.

The standard by which the Selective Service System must judge an application for conscientious objector status has been developed by case law from the statutory requirement set forth in 50 App. U.S.C.A. § 456(j):

(j) Nothing contained in this title shall be construed to require any person to be subject to combatant training and service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form.

In United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965), the United States Supreme Court interpreted the statute and established that one who holds

[a] sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption comes within the statutory definition.

380 U.S. at 176, 85 S.Ct. at 859. The Court in Welsh v. United States, 398 U. S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970), amplified the rule in Seeger by holding that a deeply and sincerely held moral and ethical belief may qualify even though the registrant considers it to be non-religious and it is substantially based on public policy considerations.

The test boils down to the sincerity of one’s belief in the opposition “to participation in war in any form.” See Witmer v. United States, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428 (1955). That is the standard that draft boards must utilize in weighing a petition once the registrant has established a prima facie case for conscientious objector status. United States v. Stetter, 445 F.2d 472 (5th Cir. 1971); Helwick v. Laird, 438 F.2d 959 (5th Cir. 1971).

Windsor contends that the Local Board used more than the “sincerity” test in evaluating his prima facie case. He points to the language in the Local Board’s denial letter as proof of an en-grafted standard:

[Y]our professed belief in opposition to war is not a compelling or controlling force in your life, but is simply an expedient to avoid military service at this time and that you are not sincere in your professed belief.

Basically he argues that his belief does not have to be a “compelling or controlling force” in his life to be sincere. See Helwick v. Laird, 438 F.2d 959 (5th Cir. 1971).

A careful reading of the Local Board’s letter of denial, however, reveals that the Board relied on the sincerity standard. The language “compelling and controlling force” was opined to elucidate Windsor’s lack of sincerity and was not an additional test. In Silverthorne v. Laird, 460 F.2d 1175 (5th Cir. 1972), the Army denied the petitioner a conscientious objector discharge because he “lacks the depth of conviction required.” 460 F.2d at 1182. The Court explained

Though the Board phrased its denial in terms of lack of depth of conviction, it obviously meant lack of sincerity. As such, the opinion of the CORB does not run afoul of Helwick, [v. Laird, 438 F.2d 959 (5th Cir. 1971)], wherein this Court noted that “depth and maturity” of one’s views is not a proper consideration. It is apparent that the Review Board in this case was not alluding to the maturity of Silverthorne’s convictions but to his sincerity.

460 F.2d at 1185. The Local Board was alluding to one facet of Windsor’s insincerity and not to the maturity of his convictions. We do not perceive that a more rigorous standard was applied.

II.

Windsor contends that the Local Board did not comply with our decision in United States v. Stetter, 445 F.2d 472 (5th Cir. 1971). Stetter requires a Local Board to state why it is rejecting a conscientious objector petition so that the registrant may have a “meaningful opportunity to disprove, clarify, or rebut before the Local Board the grounds upon which that body has relied in refusing his conscientious objector application” and thus provide for “a meaningful administrative appeal.” 445 F.2d at 483, 484.

We are, of course, not unmindful that the Selective Service System cannot be baggaged with all the habiliments or impedimenta of an adversary trial. On the other hand, the System’s ratio-cinations must not be so shrouded in mystery that neither the registrant nor the court has an opportunity to test them for factual reliability and rationality. We simply take the middle ground. The Local Boards and Appeal Boards, therefore, need not promulgate courtlike formal findings of fact, but they must at least state their findings and
“briefly summarize in the record those facts, whether they be inconsistencies in action or written statements, shifty or evasive demeanor, appearance of unreliability, lateness of claim or any other factors reasonably causing the board to reach its conclusion.” United States ex rel. Hemes v. McNulty, supra, 432 F.2d [1182] at 1187, [7 Cir.].

445 F.2d at 485. In short, the Local Board is to give sufficient reasons so that registrant and any reviewing body will understand why he was not assigned the conscientious objector classification.

Although we agree with the District Court that the Local Board’s statement of reasons was “far from ideal and should not be relied on as a model for future registrants,” the Stetter requirement was met under the facts of the case sub judice. The Board stated it was denying the application because Windsor was insincere and was using his application as an expedient to avoid military service.

When the Local Board’s reasons are read in light of the record as it existed at the time of denial, the basic facts upon which the Board relied are easily identified. First, the record exhibits no manifestation of Windsor’s opposition to war other than SSS Form 150. The form was not supplemented with any letters or documents to support his application. He made no request for a personal appearance before the Board to qffer further evidence although the opportunity was clearly available. The registrant seeking a change of classification to conscientious objector status must establish his sincerity to the Local Board. See Dickinson v. United States, 346 U.S. 389, 74 S.Ct. 152, 98 L.Ed. 132 (1953). Reviewing Windsor’s record there is a basis in fact for determining that his belief was not sincere.

Second, the conclusion that his conscientious objector petition was brought primarily to avoid military service has a “basis in fact” in the record. A chronology is helpful:

January 9, 1970, Windsor originally classified I-A.

August 17, 1970, Windsor returned the Current Information Questionnaire, SSS Form 127, without any reference to a conscientious claim.

September 14, 1970, Windsor was notified that he was fully acceptable for military service.

January 15, 1971, Windsor requested SSS Form 150.

Windsor did not request reclassification to conscientious objector status until over one year after classification as I-A and over three months after his notification of military acceptability. This amounted to a period of “unprotected” delay and coupled with the imminence of induction provided a basis in fact evidencing expediency and a ground for finding insincerity. United States v. Brown, 456 F.2d 983 (5th Cir.), cert. denied, 409 U.S. 886, 93 S.Ct. 108, 34 L.Ed.2d 143 (1972); Carson v. United States, 411 F.2d 631 (5th Cir.), cert. denied, 396 U.S. 865, 90 S.Ct. 143, 24 L.Ed.2d 119 (1969).

The Local Board’s explanation could and should have been better but, under the facts of this case, it was sufficient to apprise Windsor, the Appeal Board, and this Court of the basis of the Board’s action. It was not infirm under the Stetter requirement.

III.

Although the disposition of the prior two points require no more than the application of law previously established in this Circuit to the facts of this case, Windsor’s final point requires us to decide whether both the Local Board and the Appeal Board must meet the Stetter standard in order to validate a denial of conscientious objector classification.

Windsor argues that his conviction should be reversed because the Appeal Board failed to state reasons why it affirmed the Local Board’s denial of conscientious objector status. He contends that for the I-A classification to be valid, both the Local Board and the Appeal Board must give reasons to support their denial of his conscientious objector claim. His contention is based on the following language from Stetter:

The essence of this rule is that whenever a registrant has asserted a prima facie case of conscientious objection, the Local Board — and, if appealed, the State Appeal Board — must state the grounds upon which rejection of the claim is based and the reasons in support thereof.
« * * -X- * -X-To require the Local Board and the State Appeal Boards to state why they are rejecting an otherwise prima facie case for conscientious objection simply injects a modicum of justice into this system.

445 F.2d at 483.

The Court in Stetter explained the need for implementing this rule: (1) if the Local Board fails to state any reasons for its action then the registrant “will have no meaningful opportunity to disprove, clarify, or rebut before the Local Board the grounds upon which that body has relied in refusing his conscientious objector classification.” 445 F.2d at 483. (2) “Similarly, the registrant’s right to a meaningful administrative appeal is abrogated by the silence of the Local Board.” 445 F.2d at 484. And (3)

Finally, and perhaps most importantly, the failure of either the Local Board or the Appeal Board to set forth its findings and reasons in support of a denial of a prima facie case of conscientious objection precludes effective judicial review from the final administrative decision.

445 F.2d at 484.

But Stetter does not decide whether both boards must furnish explanations since in Stetter neither the Local Board nor the Appeal Board had enumerated any reasons for the denial of the registrant’s conscientious objector claim. Without a statement of reasons by either authority the Court was unable to discharge its function of review in determining whether there was a basis in fact for the assigned classification.

We hold that if a Local Board complies with the Stetter requirement to furnish the basis for its action, it is unnecessary for the Appeal Board to reiterate reasons when it by implication adopts the sufficient reasons of the Local Board. Adoption by implication can be inferred in the case at bar since the Local Board’s reasons were supported by the record and no additional information was presented to the Appeal Board.

This holding permits “effective judicial review from the final administrative decision.” As recently stated by the Ninth Circuit:

Inasmuch as we have just held that there was a basis in fact for the local board’s finding of insincerity, appellant’s contention that the appeal board was required to state reasons for denying appellant’s claim is clearly without merit. In affirming, without stating reasons, the appeal board by implication adopted the local board’s rationale. Notwithstanding appellant’s vigorous argument to the contrary, the local board gave only one basic reason for its denial, i. e. insincerity. . . . Where, as here, the reason can be determined from the agency record with reasonable certainty, the appeal board is not required to restate it.

United States v. Buckley, 451 F.2d 594 (9th Cir. 1971), cert. denied, 406 U.S. 926, 92 S.Ct. 1798, 32 L.Ed.2d 127 (1972). See United States v. Guaraldi, 468 F.2d 774 (9th Cir. 1972).

Affirmed.

      . The text of the letter reads Your claim as a conscientious objector was considered by the Board on February 12, 1971, and in their opinion your professed belief in opposition to war is not a compelling or controlling force in your life, but is simply an expedient to avoid military service at this time and that you are not sincere in your professed belief.

      . Our scope of review is limited to a determination whether the Board action has a “basis in fact.” Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567 (1946).

      . The parties stipulated that the defendant’s service record in toto would serve as the sole evidentiary basis at trial. It was stipulated that defendant knowingly and willingly refused induction on the date ordered for induction by the Local Board, and that the only issue is whether or not the Local Board’s order to submit to induction was invalid because it was based on an unlawful denial of a conscientious objector classification.

      . SSS Eorm 217, Advice of Bight to Personal Appearance and Appeal was dispatched to Windsor at numerous times, including when he requested the conscientious objector form.

      . “Protected” delay is defined as a period during which the registrant had a classification lower than the I-O, conscientious objector, classification. During that period, the registrant has no duty to make a conscientious objector claim. See United States v. Stetter, 445 F.2d 472, 480 (5th Cir. 1971) ; 32 C.F.R. §§ 1623.2 and 1625.1(b).