3 A.L.R.2d 441. However, it must be remembered that in the Picking case the judge had concluded his action against the plaintiffs and there was no attempt to invoke injunctive process against his court while any action was pending involving the plaintiff therein.
Contrary to the plaintiffs' argument is the case of Douglas et al. v. City of Jeannette et al., 319 U.S. 157, 63 S. Ct. 877, 87 L. Ed. 1324. The complaint therein was based on the allegations that the defendants threatened to continue to enforce a constitutionally invalid city ordinance by arrests and prosecutions and it was further alleged to arise under the Constitutional Laws of the United States, including the Civil Rights Act. In it the United States Supreme Court made the following cogent comment:
'Notwithstanding the authority of the district court, as a federal court, to hear and dispose of the case, petitioners are entitled to the relief prayed only if they establish a cause of action in equity. Want of equity jurisdiction, while not going to the power of the court to decide the cause, * * * may nevertheless, in the discretion of the court, be objected to on its own motion. * * * Especially should it do so where its powers are invoked to interfere by injunction with threatened criminal prosecutions in a state court.
'The power reserved to the states under the Constitution to provide for the determination of controversies in their courts may be restricted by federal district courts only in obedience to Congressional legislation in conformity to the Judiciary Articles of the Constitution. Congress, by its legislation, has adopted the policy, with certain well defined statutory exceptions, of leaving generally to the state courts the trial of criminal cases arising under state laws, subject to review by this Court of any federal questions involved. Hence, courts of equity in the exercise of their discretionary powers should conform to this policy by refusing to interfere with or embarrass threatened proceedings in state courts save in those exceptional cases which call for the interposition of a court of equity to prevent irreparable injury which is clear and imminent; and equitable remedies infringing this independence of the states- though they might otherwise be given- should be withheld if sought on slight or inconsequential grounds. * * *
'It is a familiar rule that courts of equity do not ordinarily, restrain criminal prosecutions. No person is immune from prosecution in good faith for his alleged criminal acts. Its imminence, even though alleged to be in violation of constitutional guaranties, is not a ground for equity relief since the lawfulness or constitutionality of the statute or ordinance on which the prosecution is based may be determined as readily in the criminal case as in a suit for an injunction. * * * Where the threatened prosecution is by state officers for alleged violations of a state law, the state courts are the final arbiters of its meaning and application, subject only to review by this Court on federal grounds appropriately asserted. Hence the arrest by the federal courts of the processes of the criminal law within the states, and the determination of questions of criminal liability under state law by a federal court of equity, are to be supported only on a showing of danger of irreparable injury 'both great and immediate.' * * *
'It does not appear from the record that petitioners have been threatened with any injury other than that incidental to every criminal proceeding brought lawfully and in good faith, or that a federal court of equity by withdrawing the determination of guilty from the state courts could rightly afford petitioners any protection which they could not secure by prompt trial and appeal pursued to this Court. * * *' 319 U.S.at page 162-164, 63 S. Ct.at page 880.
The doctrine of abstention has been similarly applied where there has been an allegation that a state statute is in conflict with the United States Constitution or that a state officer is about to administer, or is administering, a state statute in an unconstitutional manner. Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 65 S. Ct. 1384, 89 L. Ed. 1725; C.I.O. v. McAdory, 325 U.S. 472, 65 S. Ct. 1395, 89 L. Ed. 1741; A. F. of L. v. Watson, 327 U.S. 582, 66 S. Ct. 761, 90 L. Ed. 873; Traffic Telephone Workers' Federation of N.J. v. Driscoll, D.C., 72 F.Supp. 499, appeal dismissed 332 U.S. 833, 68 S. Ct. 221, 92 L. Ed. 406. Cf. Hill v. Florida, 325 U.S. 538, 65 S. Ct. 1373, 89 L. Ed. 1782. The reasoning in these cases has been based upon the premise that the highest court of the state should be permitted first to limit or pass upon the merits of the alleged unconstitutionality with recourse to the United States Supreme Court if the proper federal grounds are presented. Cf. Society of Good Neighbors v. Groat, D.C., 77 F.Supp. 695.
An indication that this doctrine of abstention is looked upon with favor appears in the procedure governing the application to a federal court for a writ of habeas corpus by one detained in the custody of a state. It has been held by the United States Supreme Court that state court remedies must be exhausted before a federal court may issue the writ. Ex parte Hawk, 321 U.S. 114, 64 S. Ct. 448, 88 L. Ed. 572. This has been codified as a statute, 28 U.S.C.A. § 2254.
It is true, as argued by the plaintiffs, that it is not ordinarily necessary to exhaust state remedies prior to seeking redress under the Civil Rights Act and Lane v. Wilson, 307 U.S. 268, 59 S. Ct. 872, 83 L. Ed. 1281, is, as they state, an instance where this position was established by the United States Supreme Court. However, that was a case where state voting officials denied a citizen the right of registration and no pending court action was involved. The distinction is made apparent in Douglas v. City of Jeannette, supra, where the protection of the Civil Rights Act was sought to be invoked but was denied in the light of pending criminal prosecution where the alleged constitutional invalidity could be tested.
If the plaintiffs' theory of the federal district court's injunctive power pursuant to 28 U.S.C.A. § 1343(3) were followed, fantastic results would occur, for in every state court criminal action in which the defendant raised a defense alleging deprivation of a constitutionally protected right he could institute an action that would convert a federal district court into a review forum of state court action. Cf. Lindsey v. Allen, D.C., 269 F. 656, 659, appeal dismissed 258 U.S. 613, 42 S. Ct. 462, 66 L. Ed. 791.
For instance, state court criminal prosecutions, wherein it is alleged that coerced confessions were obtained, could be interrupted while the defendants sought to test their admissibility in federal district court actions. Interminable delays would follow with consequent confusion. That the interference would not be tolerated is apparent from the recent case of Watts v. Indiana, 338 U.S. 49, 69 S. Ct. 1347. In it the Court makes the following significant reference in considering such a confession: 'Thus, while the State courts have the responsibility for securing the rudimentary requirements of a civilized order, in discharging that responsibility there hangs over them the reviewing power of this Court.' 338 U.S.at page 50, 69 S. Ct.at page 1348.
Cited to the text, there appears this interesting note: 'Of course this Court does not have the corrective power over State courts that it has over the lower federal courts. See, e.g., McNabb v. United States, 318 U.S. 332, 63 S. Ct. 608, 87 L. Ed. 819. In the main, the proper administration of the criminal law of the States rests with the State courts. The nature of the Due Process Clause, however, potentially gives wide range to the reviewing power of this Court over State-court convictions.'
Certain prerogatives are inherent in all courts that the orderly administration of justice may be maintained. To this end, it cannot be doubted that the states are empowered to promulgate rules governing those who are desirous of being admitted to the practice of law and controlling the procedure in courts after they are admitted. Ex parte Garland, 4 Wall. 333, 18 L. Ed. 366; Bradley v. Fisher, 13 Wall. 335, 20 L. Ed. 646; Bradwell v. Illinois, 16 Wall. 130, 21 L. Ed. 442; In re Lockwood, 154 U.S. 116, 14 S. Ct. 1082, 38 L. Ed. 929; In re Watts & Sachs, 190 U.S. 1, 23 S. Ct. 718, 47 L. Ed. 933; Yeiser v. Dysart, 267 U.S. 540, 45 S. Ct. 399, 69 L. Ed. 775; In re Summers, 325 U.S. 561, 65 S. Ct. 1307, 89 L. Ed. 1795; Fisher v. Pace, 336 U.S. 155, 69 S. Ct. 425; Emmons v. Smitt, 6 Cir., 149 F.2d 869; In re Chopak, 2 Cir., 160 F.2d 886; In re Patterson, 9 Cir., 176 F.2d 966 and cases cited in footnote. It is in the exercise of this prerogative that a court may resort to the removal of counsel for cause and to this extent the uninhibited choice of counsel by an accused may become limited in the interest of the survival of an orderly administration of justice. The decision as to whether or not counsel were justifiably removed by the defendant, the plaintiffs now would project into this court. It is beyond its power to make such a decision. Federal district courts are courts of limited jurisdiction and Congress never granted them authority to serve as an appellate or review court for alleged unconstitutional actions, for this power is severely restricted to the United States Supreme Court. See 28 U.S.C.A. § 1257. Cf. Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S. Ct. 149, 68 L. Ed. 362; In re Edmonds, 77 F.2d 765, 22 C.C.P.A.,Patents, 1256; U.S. ex rel. Parker v. Carey, 7 Cir., 135 F.2d 205; Emmons v. Smitt, D.C., 58 F.Supp. 869, affirmed, 6 Cir., 149 F.2d 869, certiorari denied, 326 U.S. 746, 66 S. Ct. 59, 90 L. Ed. 446.
There is no charge that plaintiffs have been completely deprived of counsel for the very complaint itself in this court is brought on their behalf by local counsel whose representation of the plaintiffs has not been terminated by the defendant. However, there is no suggestion that the court will refuse to recognize any other counsel the plaintiffs may choose, appoint counsel for them if they so desire, or give them reasonable adjournment in which to choose other counsel or otherwise prepare for the trial. The only deprivation to which the plaintiffs allege that they have been exposed by the defendant is that certain of plaintiffs' counsel have been removed. This cannot be said to be irreparable and irremediable injury, particularly in the light of plaintiffs' plain remedies in the pending action in which they are now engaged in the state court.
And so here, our simple question, initially raised, induces this simple answer. The Civil Rights Act does not, under the allegations of the plaintiffs' complaint, authorize this court to order the defendant, the judge of the Mercer County Court, to reinstate certain of their lawyers in their pending criminal case and to stop the trial until he does so. If he has erred in displacing those lawyers, his action is subject to review for the purpose of correcting the mistake, if any, first by the appellate courts of New Jersey and finally in the United States Supreme Court.
Accordingly, although this court has taken jurisdiction of the complaint for the purpose of ascertaining whether it pleaded a cause of action upon which relief may be granted, it is found that is has no power to grant the relief upon the allegations presented in the complaint.
The motion for a temporary injunction will be denied and the motion to dismiss the complaint will be granted.
An order should be submitted in conformity with this opinion.