and are presumably now in force and will be applied in the September, 1967 election.
We deem it prudent to sidestep this invitation to indulge in obiter dictum which is necessarily brutum fulmen, and to leave the parties to litigate that election after it takes place, in the event a non-moot case arises under the procedures suggested by the Court of Appeals at 372 F.2d 88-89.
Once again, however, although we find the regulations applicable to the 1965 election "unreasonable" under 29 U.S.C. § 481(e), we are unable to make the finding of probable causal relation between the statutory violation and the outcome of the election.
It seems clear that even under the challenged (and in our opinion, unreasonable) by-laws the complainant here, one Edward Razvoza, could have, by the timely exercise of diligence, qualified himself as a candidate had he wished to run for union office. At no time has he declared himself as a candidate for any post. The old by-laws recognize being at work as a valid excuse, and by taking advantage of this excuse complainant would have been eligible.
Even after the establishment of an election committee, it seems that Razvoza's eligibility would have been declared if he had prosecuted the issue before the committee; although there may be some doubt whether the liberal (or loose) practices tolerated in Local 66 in the face of the literal terms of the by-laws can be regarded as valid. As plaintiff points out, 29 U.S.C. § 481(e) requires that "The election shall be conducted in accordance with the constitution and bylaws of such organization insofar as they are not inconsistent with the provisions of this subchapter." The desuetude of statutes by custom provides an interesting topic for academic speculation by scholars
but is not recognized in our law, especially in the case of a matter where it is important to safeguard union democracy by preventing arbitrary exercise of discretion by union officers to the detriment of the rank and file of the union membership. See 244 F. Supp. at 749.
It follows that the instant action should be dismissed.