On Petition for Rehearing.
The petition for rehearing is denied.
In disposing of the petition for rehearing, we deem it proper to comment upon the point made in the petition that class suits in California do not bind persons falling within the class who are not and do not make themselves parties to the action or who do not accept benefits of the litigation. We do not base our decision on a contra premise.
It is true that in our written opinion we have stressed the fact that the plaintiffs in the federal case do fall within the class for which the state court case assertedly is maintained; that the attorneys are the same in each case; that the federal case followed soon after the judgment against the plaintiffs in the state case; that the attack upon the constitutionality of the city zoning system is common to both suits.
The combination -of these circumstances, it seems to us, demonstrates that a conflict of holdings as to the legality of the city zoning ordinances may result (and indeed has resulted) in confusion in the administration of enforcing the ordinances. The ordinances cannot be enforced against the will of the plaintiffs in the state case as the state court judgment decrees, and enforcement be prohibited in accordance with the will of the plaintiffs in the federal case as the order herein appealed from' decrees.
Each set of plaintiffs may have their complaints adjudicated in the state courts in the same or different state cases. The district judge thought the matter of filling the excavations resulting from taking sand ánd gravel from the premises in suit could not be provided for by the state courts of appeal in the state court case already tried. *517Tf this is true, the matter may he well protected by the filing of a case in the state court by the plaintiffs in the instant case. If such action were taken, the real underlying issue of both cases, the constitutionality of the ordinance, would pass through the same state Supreme Court and on to the Supreme Court of the United States, and all conflict of jurisdictions be avoided.
In line with the case of Burford et al. v. Sun Oil Co., et al., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424, cited in our main opinion, is the very recent case of Stainback et al. v. Mo Hock Ke Lok Po et al., 69 S.Ct. 606, 614, a case in which an Hawaiian territorial act was questioned. District Judge McLaughlin, in considering a motion for a temporary injunction, made a statement from which the Supreme Court quoted, as follows:
“ * * [The Act] carries no criminal penalties for infractions. Enforcement is in equity in the circuit courts of the Territory. Plaintiffs have no reason to fear a court of equity, and there is every reason to believe that their constitutional rights would be fully protected in the equity courts of the Territory and that an appeal, if need be, eventually could be had to the United States Supreme Court.’ ”
The Supreme Court continued with its statement: “The statement [of the district judge] applies as well as to the final injunction. Entirely aside from the question of the propriety of an injunction in any court [Note 28: See Spielman Motor Sales Co. v. Dodge, 295 U.S. 89, 95, 55 S. Ct. 678, 79 L.Ed. 1322], territorial like state courts are the natural sources for the interpretation and application of the acts of their legislatures and equally of the propriety of interference by injunction. [Note 29: Waialua Agr. Co. v. Christian, 305 U.S. 91, 108, 59 S.Ct. 21, 83 L.Ed. 60; Beal v. Missouri Pacific R. Corporation, 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; Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324; Burford v. Sun Oil Co., 319 U.S. 315, 333, note 29, 63 S.Ct. 1098, 87 L.Ed. 1424; Meredith v. City of Winter Haven, 320 U.S. 228, 235, 64 S.Ct. 7, 88 L. Ed. 9. Compare Spector Motor Co. v. McLaughlin, 323 U.S. 101, 65 S.Ct. 152, 89 L. Ed. 101.] We think that where equitable interference with state and territorial acts is sought in federal courts, judicial consideration of acts of importance primarily to the people of a state or territory should, as a matter of discretion, be left by the federal courts to the courts of the legislating authority unless exceptional circumstances command a different course.”
In the circumstances, we think the federal court should have declined to take jurisdiction.