Stanley Forman Reed

“ When complainants charge in a Federal Court of Equity that a State has passed, and its officers are about to enforce, a law against monopolistic price fixing, is there so much doubt about the power of the State to prohibit monopolistic price fixing that operation of the law must enjoined and effect denied to it until evidence is heard by the Court? ”

“ The loss of a right to an annual gross income of $1.50 cannot amount to the loss of a right valued at ten thousand dollars-as appellees allege-on the theory that it would cost ten thousand dollars to collect the $1.50 income individually. And it is, of course, possible that if the Society in fact has no net income from Florida but operates there at a loss, each member's ratable share of income from the Society will actually be increased when the unprofitable Florida operations cease because of the statute. ”

“ A common desire to disregard a State law cannot serve as a common and undivided interest for purposes of Federal jurisdiction; [50] otherwise, all who oppose such a law can aggregate the values of their alleged individual rights so to disregard the law, in order that they may escape the courts of a State and bring its law before a Federal court. ”

“ Since it appears that music is an essential part of public entertainment for profit, radio stations or other businesses arbitrarily compelled to pay discriminatory fees are faced with price fixing practices that could destroy them, because the Society has a monopoly of practically all-if not completely all-available music. ”

“ Litigation is not a game in which justice can be awarded only to the alert and fastidious objector, particularly when-as here-a court suspends statutory rights of members of the public who, not being in court, have no opportunity to object. ”

“ They who attack the constitutionality of a law, obtain its judicial suspension, and then continue to violate its terms, should not benefit by the suspension, in the event the law is later held constitutional. ”

“ In this proceeding, all that members of the Society have in common is their alleged right to violate with impunity the Florida statute against price fixing. Unless opposition to and violation of the statute can be their bond of unity, appellees have 'separate and distinct demands * * * (united) for convenience and economy in a single suit, (and) it is essential that the demand of each be of the requisite jurisdictional amount.' [48]
Permissible joinder of many plaintiffs as a matter of convenience and economy is not a means of enlarging the jurisdiction of the District Court. ”

“ Members, both corporate copyright owners and individual composers of music and lyrics, are plaintiffs. They represent all other members. As the members own the copyrights, less the limited assignment to the Society of the right of public performance for profit, and share in the earnings through mandatory distribution under the articles of association and not by way of dividends, they are proper parties to e action. [8] These members are real parties in interest. Because of the interposition of the statute they cannot in combination license production and collect fees in Florida. ”

“ The enjoined State officials have only the duty to prosecute appellees if they continue to fix prices (i.e., to issue licenses) through monopolistic combinations, and these officials have expressly disavowed any intention to do more. [52] Appellees are left free to form such combinations as they please in Florida for the purpose of protecting against copyright infringements. They are here deprived by the Florida statute only of the right to combine to fix prices, and the value of that right must determine the amount in controversy. ”

“ Surely, there is presently no basis to doubt that power d to assert that its exercise raises 'grave constitutional questions.' As recently as 1937, this Court held that Porto Rico, with legislative powers not equal to, but 'nearly as extensive as those exercised by any State legislature,' could prohibit monopolistic price fixing as one of the 'rightful subjects of legislation' upon which legislatures act. ”

“ The otherwise complete suspension of Florida's law was limited only by the condition that appellees make bond of five thousand dollars payable to the Attorney General of Florida and the District Attorneys of the State. Manifestly, these officials have no individual interest in the monopoly prohibited by the Florida law. The major injuries accruing from the suspension of the law will not be inflicted upon them, but upon the people of Florida who are required to pay monopoly prices while the law remains enjoined. ”

“ It is clear that there is equitable jurisdiction to prevent irreparable injury, if the sections of the state statute outlawing the Society raise issues of constitutionality. The heavy penalties for violation and the prohibition of the issue of licenses or collection of fees show the need to protect complainants. ”

“ This method of testing the jurisdiction properly raises the question. No issue is made as to the standing of the Society or its members to sue. The basis of the attack is that there is a lack of the essential allegations as to the value of the matter in controversy. As there is no statutory direction for procedure upon an issue of jurisdiction, the mode of its determination is left to the trial court. [4] Both complainants and defendants were content to rest upon the bill and motion.
The bill alleges that the value of the matter in dispute exceeds the jurisdictional amount. ”

“ It is said the bill alleges that the statute violates 'equal protection.' But the sole thing threatened is prosecution of an admitted price fixing combination-comprised of practically all the musical copyright owners and publishers in the nation. '* * * if an evil (of monopoly) is specially experienced in a particular branch of business, the Constitution embodies no prohibition of laws confined to the evil, or doctrinaire requirement that they should be couched in all-embracing terms. ”

“ Evidence shows that competing radio stations in the same city, operating on the same power and serving the same audience, are charged widely variant fees for identical performance rights, not because of competition, but by the exercise of monopoly power. ”

“ The Society undertakes to protect itself and its members from piracies of the rights assigned to it. The Society has, in the absence of the challenged legislation and without now giving consideration to other objections as to the legality of its organization, a right to license which may be injuriously affected by the Florida statute. ”

“ Where the bill makes an attack upon the constitutionality of a state statute, supported by factual allegations sufficiently strong, as here, to raise 'grave doubts of the constitutionality of the Act' in the mind of the trial court, the motion to dismiss for failure to state a cause of action should be denied. This bill sets out that the exercise of rights granted by the Federal Copyright Act to control the performance of compositions for profit is prohibited by the statute; that existing contracts are impaired ”

“ The appellant, the state Attorney General and various State Attorneys, are officers of the State of Florida charged with the enforcement of the act. The appellees, complainants below, are the American Society of Composers, Authors and Publishers, an unincorporated association organized under the laws of the State of New York; Gene Buck as president of the Society; various corporations publishing musical compositions; a number of authors and composers of copyrighted music ”

“ Rigid enforcement of the jurisdictional requirement will limit the interference of Federal courts in State legislation and will accord with the policy of Congress in narrowing the jurisdiction of Federal courts by successive increases in the jurisdictional amount. ”

“ It declares the combination an unlawful monopoly, the price-fixing in restraint of trade, and the collection of license fees and all contracts by the combination illegal.
The bill attacked the statute as contrary to the Constitution and laws of the United States and the constitution of Florida. More specifically, it urged that the law impinged upon rights given by the Copyright Act of 1909, deprived complainants of rights without due process of law and without the equal protection of the laws, impaired the obligation of contracts already executed, and operated as an ex post facto law. ”

“ Ordinarily it would be expected that where a temporary injunction is considered necessary to protect the rights of complainants against the allegedly unconstitutional action of state officers, under a statute, a final order would follow with all convenient speed. (3) The order of the trial court was entered April 5, 1938. The findings of fact and conclusions of law were not filed until May 17, 1938, after the first assignment of errors had pointed out the omission and after the appeal was allowed. ”

“ When consideration is also given to the fact that an arbitrarily fixed lower rate is granted to a favored station itself controlled by another instrument of public communication-a newspaper-the ultimate possibilities for control of the channels of public communication and information are apparent. ”

“ Central Lumber Co. v. South Dakota, supra, 226 U.S. page 160, 33 S.Ct. page 67, 57 L.Ed. 164. 'A Legislature may hit at an abuse which it has found, even though it has failed to strike at another.' United States v. ”