plainly indicate that it is not 'a mere police court measure' and that authority of the several States may be exerted to control such conduct.'
And, 315 U.S. at page 750, 62 S. Ct. at page 826, 86 L. Ed. 1154, the Supreme Court expressly held that 'the federal Act does not govern employee or union activity of the type here enjoined.' It follows, therefore, that not only may proceedings be commenced in a state tribunal, to enjoin the striking unions, but also that if the state tribunal finds certain facts, it may issue a restraining order.
Particularly important to the instant action is the fact that since 1793, Congress has prohibited the granting of injunctions by federal courts to stay proceedings in state courts, subject to certain exceptions. 13 Cyc.Fed.Procedure Sec. 6675(1944). Section 265 of the Judicial Code, 28 U.S.C.A. Sec. 379, now in effect, provides that 'the writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a State, except in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy.' The federal courts, therefore, will not stay an action pending in a state court unless it falls within one of the recognized exceptions to the statute. Hill v. Martin, 1935, 296 U.S. 393, 403, 56 S. Ct. 278, 80 L. Ed. 293, The rule cannot be evaded by having the injunction run against the parties rather than the court. Union Central Life Ins. Co. v. McAden, D.C.S.D.N.Y. 1938, 21 F.Supp. 110, 111.
It is my opinion that the instant case does not fall within any of the recognized exceptions. 13 Cyc.of Fed.Procedure, Sec. 6677 (1944); cf. Davega-City Radio, Inc., v. Boland, D.C.S.D.N.Y.1938, 23 F.Supp. 969, 970. True, the respondents are under a duty to bargain in good faith with the petitioners. However, as held in the Allen-Bradley case, supra, the controversy which the respondents are litigating in the state court is not one over which the state's police power is preempted, and, as said in 315 U.S. at page 749, 62 S. Ct. at page 825, 86 L. Ed. 1154, 'Congress has not made such employee and union conduct as is involved in this case subject to regulation by the federal Board.' In the instant case the Bill of Complaint filed by respondent in the state court, falls within the type which was the subject of the Allen-Bradley case.
In any event, this court cannot assume that a state court will act without regard to the applicable law and without due consideration for the rights of the petitioners here. The contrary is true, and is amply demonstrated by the cases: Park & Tilford Import Corp. v. International Brotherhood of Teamsters, supra, is exemplary. Moreover, whether the particular proceeding is, in whole or in part, one within the jurisdiction of the state court, and whether that court has power to grant the remedy prayed for, are questions which may be capably determined by that court, and error is a matter of appellate review. The question of jurisdiction, if at all involved, is appropriately one for the decision of the state court and could manifestly be presented and determined in the action there. Kohn v. Central Distributing Co., 1939, 306 U.S. 531, 534, 59 S. Ct. 689, 83 L. Ed. 965.
Finally, the petitioners seek a declaratory judgment under Section 274d of the Judicial Code, 28 U.S.C.A. Sec. 400. However, where an injunction will not lie a declaratory judgment cannot be substituted. State of Wyoming v. Franks, D.C.D.Wyo.1945, 58 F.Supp. 890, 897. Further, it is well-settled that a declaratory judgment which would not terminate the controversy or uncertainty, or under all circumstances is not necessary or proper at the time, ought not to be given. See Angell v. Schram, 6 Cir., 1940, 109 F.2d 380, 382; Koon v. Bottolfsen, D.C.D.Idaho 1944, 60 F.Supp. 316. The declaratory judgment is a remedy within the sound discretion of the trial court. Brillhart v. Excess Ins. Co., 1942, 316 U.S. 491, 62 S. Ct. 1173, 86 L. Ed. 1620; Crosley Corp. v. Westinghouse Electric & Mfg. Co., 3 Cir., 1942, 130 F.2d 474, certiorari denied 317 U.S. 681, 63 S. Ct. 202, 87 L. Ed. 546. Therefore, considering that proceedings have begun in the state court and that a declaratory judgment such as petitioners seek would pertain to incidental questions and would not terminate the controversy, it is my opinion that the petition should be denied.
For the reasons stated the respondent's motion to dismiss the bill of complaint is granted.
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