(dissenting).
In its latest pronouncement upon the issue, the Supreme Court of the United States has refused to find exception for state officers from the sweeping federal ban on unauthorized interception and divulgenee of “any communication,” contained in § 605 of the Federal Communications Act, 47 U.S.C. § 605. Speaking through the Chief Justice of the United States, a unanimous Court finds “that Congress, setting out a prohibition in plain terms, did not mean to allow state legislation which would contradict that section and that policy.” And it points out the failure of Congess to grant exceptions, though strongly importuned to do so. Benanti v. United States, 355 U.S. 96, 105, 106, 78 S.Ct. 155, 160, 2 L.Ed.2d 126.
Notwithstanding its decisive character, there is nothing surprising in the Court’s statement; indeed, it would have been surprising had the Court said less. For the absolute character of the prohibition has been steadily emphasized over the years and the attempt to make the statute say less than it does has been conspicuously unsuccessful. So we must accept the interpretation that wire tapping, whether by state officers or by anyone else, is simply and shortly forbidden by federal law, subject to severe penalties of fine and imprisonment. 47 U.S.C. § 501. Attack must therefore be limited to the need of new legislation because of its hampering effects on law enforcement if prosecuting officials cannot have the benefit of at least “controlled” wire tapping. Involved are surely weighty arguments of public policy which the legislative body should weigh.1 But these arguments have not as yet prevailed with the only governmental agency having authority to act to modify the existing law, and I do not see how they can affect the responsibility of United States judges to enforce that law. Hence for us I see no escape but to start with the premise that we are faced with repeated open and acknowledged violations of federal law which we are assured will be continued until and unless federal authorities intervene.
Thus we have an absolute impasse going so far as to be almost ludicrous if the issue were not so fundamentally serious. It seems generally conceded that wire tapping is an evil thing, particularly when employed by criminal or underworld characters and their associates. Yet it has not been possible to enforce the law against such persons when at the same time it is not enforced against even more open violators, albeit with loftier motives.2 Thus one restrained comment puts it mildly: “Weighing the individual’s right to privacy against the need for effective detection of criminals, we are met with the kind of conflict of values which characterizes many areas of our law and our social organization. In the case of wire tapping, however, this competition of social interests has resulted in a dangerous stalemate — a failure to find a workable adjustment- — ■ which leaves Mr. Smith, the average citizen, at the mercy of the more ruthless in our population. For, despite the statutes and judicial decisions which purport to regulate wire tapping, today this practice flourishes as a wide-open operation at the federal, state, municipal, and private levels.” Westin, The WireTapping Problem: An Analysis and a Legislative Proposal, 52 Col.L.Rev. 165, 167 (1952).
*748Professor Westin goes on to point out (from a careful analysis of congressional hearings and other cited material) how this “stalemate” affects the lives and fortunes of ordinary citizens, as well as others, and how the criticized practice taps the conversation of public officials in every sort of government agency, of business men in business organizations, of private persons for purposes as diverse as labor espionage or securing evidence of a wife’s infidelity, and with schools or training centers for instructing telephone tappers.3 More recently a detailed study sponsored by the Pennsylvania Bar Association Endowment shows much of wire tapping in action, with a description of “The Tools” and with detailed investigation particularly of police activities in several important metropolitan areas, including New York. See Dash, Schwartz, and Knowlton, The Eavesdroppers 35 et seq. (1959). This suggests a much more prevalent practice than many officials have been willing to admit, although even the conceded number of ex parte court orders issued under the New York statutes appears quite adequate to show the pattern.4 And other material of like effect is extensively available.5
In sum it is beyond dispute that there is a general, indeed universal, custom of federal law violation. Now this is a distressing situation, made not less so that in the eyes of many worthy citizens it is required by the asserted exigencies of successful law administration. But it is not an unusual situation. For actually it is a clash between federal and state governmental policies. As such it is a recurring struggle in our history and quite possibly a necessary one to a federal form of government.6 In the past we have found ways of meeting and solving the problem. Of course there are *749several forms of remedy; but the one to which there seems continual return when other remedies fail is the resort to the equity powers of the federal courts to enjoin repeated violations of the criminal law. This is an old and well established ground of equity jurisdiction, naturally to be resorted to only reluctantly as against state officials, but nevertheless thoroughly recognized. Thus the authority of United States courts to enjoin state officials, including prosecutors and others, from repeated violations of overriding federal law has long been upheld in a variety of circumstances such as alien land ownership, rate regulation, closed shop and railroad tariff laws, and the like. Thus, for example, see American Federation of Labor v. Watson, 327 U.S. 582, 66 S.Ct. 761, 90 L.Ed. 873; West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628, 147 A.L.R. 674; Watson v. Buck, 313 U.S. 387, 61 S.Ct. 962, 85 L.Ed. 1416; Hague v. C. I. O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423; Sterling v. Constantin, 287 U.S. 378, 53 S.Ct. 190, 77 L.Ed. 375; Terrace v. Thompson, 263 U.S. 197, 44 S.Ct. 15, 68 L.Ed. 255; Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714; Smyth v. Ames, 169 U.S. 466, 18 S.Ct. 418, 42 L.Ed. 819, modified 171 U.S. 361, 18 S.Ct. 888, 43 L.Ed. 197. And see also Rea v. United States, 350 U.S. 214, 76 S.Ct. 292, 100 L.Ed. 233, upholding an injunction preventing a federal agent from transferring federally suppressed evidence to a state court or there testifying.
Directly in point also and perhaps most persuasive of all in view of the close analogy are the modern segregation cases. Thus see Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, 38 A.L.R.2d 1180, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083; Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5; Harrison v. National Ass’n for the Advancement of Colored People, 360 U.S. 167, 179, 79 S.Ct. 1025, 3 L.Ed.2d 1152; Faubus v. United States, 8 Cir., 254 F.2d 797, certiorari denied 358 U.S. 829, 79 S.Ct. 49, 3 L.Ed.2d 68; Clemons v. Board of Ed. of Hillsboro, Ohio, 6 Cir., 228 F.2d 853, certiorari denied Board of Ed. of Hillsboro, Ohio v. Clemons, 350 U.S. 1006, 76 S.Ct. 651, 100 L.Ed. 868. As these cases all demonstrate, a suit against a state officer violating federal law is not within the prohibition of actions against a state. See also Judge Parker’s complete statement in School Bd. of City of Charlottesville, Va. v. Allen, 4 Cir., 240 F.2d 59, certiorari denied 353 U.S. 910, 77 S.Ct. 667, 1 L.Ed.2d 664.
All these questions of jurisdiction the majority opinion herewith concedes, including the irreparable injury sustained. I agree thoroughly with the principles here stated; but that leaves only Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138, and the question of the niceties of the exercise of federal equity jurisdiction left to give us pause. For Stefanelli recognizes the jurisdiction of equity and emphasizes only the restraint which the federal court should show against interfering with state criminal processes. I agree wholeheartedly, but ask (as was asked with respect to Little Rock schools, martial law in the Texas oil fields, and other historic federal-state clashes), When does enough of federal law violation become too much? The facts rehearsed above demonstrate in my opinion that only by the course of federal injunction will the present impasse be resolved. Schwartz v. State of Texas, 344 U.S. 199, 73 S.Ct. 232, 97 L.Ed. 231, shows that the way is not by appeal from a conviction already had; indeed it confirms the view that this is the one healthy and direct and complete solution. A clean excision is better than continuous mangling. Involved in Stefanelli was an isolated case of federal law violation, not a consistent pattern as here. Also to be noted is the less direct compulsion of the federal law there, since the Fourth Amendment does not touch the problem of communication and evidence directly; no federal crime was there involved; and the damage had *750already been done.7 Carefully considered I regard Stefanelli as authority showing the need and the utility of the action I urge, rather than to the contrary.
Consequently I am persuaded by and would follow the good opinion of Judge Medina upon the grant of a stay in this case. Pugach v. Dollinger, 2 Cir., 275 F.2d 503. I also note that two state justices have reached a like conclusion and decline to proceed further in wire tapping. Matter of Interception of Telephone Communications, 9 Misc.2d 121, 170 N.Y.S.2d 84, Hofstadter, J.; Application for an Order Permitting the Interception of Telephone Communications of Anonymous, 207 Misc. 69, 136 N.Y.S.d 612, Hofstadter, J.; Application for Order Permitting Interception of Telephone Communications, N.Y.Ct.Gen. Sess., 198 N.Y.S.2d 572, Davidson, J.8 These cases not only illustrate the uncertain and anomalous position into which state judges are now thrust, but also are good examples to United States judges. In the first case cited here, Mr. Justice Hofstadter makes a very pointed allusion to the mandate of the United States Constitution that laws made pursuant to it are “the supreme Law of the Land,” binding upon us all, “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S.Const. Art. VI, cl. 2. This reminder from a distinguished state brother of the necessity for obedience to the “Supreme Law” ought to go' far to allay the fear expressed that the state officials will defy this law, even after it has been authoritatively defined in the course of this litigation, and that the federal courts will be flooded with actions to curb this defiance. For my part I entertain no such fear of either the defiance or the flood of cases; and hence I forego comment on the implication that mere number of applications may bar the right to equity relief. On the contrary I venture to believe that our state brothers and colleagues in law enforcement, both on the bench and in the prosecuting offices, will welcome definitive resolution of the present hopeless stalemate and will hasten to comply with the requirements of law as soon as they are made clear.
I would reverse the judgments below for the issuance of the injunctions sought.
. That the legislative is the correct and indeed the only approach to a solution is the tenor of a discriminating article by the Chairman of the Now York Joint Legislative Committee to Study Illegal Interception of Communications. Savarese, Eavesdropping and the Law, 46 A.B.A.J. 263 (1960). See also Gerhart, Let’s Take the Hypocrisy Out of Wiretapping, 30 N.Y.St.B.Bull. 268 (1958) ; Williams, Wiretapping Should Be Liberalized, 30 N.Y.St.B.Bull. 261 (1958).
. There appears to have been only one successful prosecution under the statute. United States v. Gris, 2 Cir., 247 F.2d 860. James R. Hoffa was prosecuted and acquitted. See Savarese, supra note 1, at 266.
. 52 Col.L.Rev. 165, 167, 168 (1932), quoted by Professor Donnelly of Yale in Ms careful article, Comments and Caveats on the Wire Tapping Controversy, 63 Yale L.J. 799 (1954).
. In Wiretapping in New York, 31 N.Y.U. L.Rev. 197 (1956), the figures for the orders received by the telephone company in New York City are given, viz., 1135 orders (good for 90 days) affecting 1954 wires for the year 1954 and 1013 orders affecting 1662 wires for the year 1953. The defendants take exception to the figures given by Mr. Justice Douglas, An Almanac of Liberty 355 (1954), but quote approvingly those given by Brown and Peer, The Wiretapping Entanglement; How to Strengthen Law Enforcement and Preserve Privacy, 44 Cornell L.Q. 175, 183 (1959), as being a total of 480 orders in New York City in 1952. In Dash, Schwartz and Knowlton, The Eavesdroppers 39 et seq., ,68, 69 (1959), the authors suggest that Mr. Justice Douglas’ estimate properly refers to wire taps, not orders, and then, making their own estimate of from 16,000 to 29,000 wire taps a year, also suggest that the Justice’s estimate is thus “closer to the truth than the figures submitted by the police to the Kings County prosecutor.” More lately Mr. Dash has given an estimate of from 13,000 to 20,000 wire taps per year. Hearing before the Subcommittee on Constitutional Rights of the Committee on the Judiciary, U. S. Senate, 86th Cong., 1st Sess., pursuant to S. Res. 62, Pt. 3, Wiretapping, Eavesdropping, and the Bill of Rights, 520-521 (1960).
. Earlier citations are given by Professor Donnelly, in the article cited in note 3 supra. Later references appear in 57 Col.L.Rev. 1159 (1957); 26 Ford.L.Rev. 540 (1957); 31 N.Y.U.L.Rev. 197 (1956); 67 Yale L.J. 932 (1958); and Dash, Schwartz and Knowlton, The Eavesdroppers 443, 458 et seq. (1959), including also references to Congressional and New York state legislative hearings. See also the statements and articles by law professors and others in the Hearing cited supra note 4, at 566-714.
. See Demet, A Trilogy of Massive Resistance, 46 A.B.A.J. 294, 296 (1960):
“As demonstrated, disobedience, disrespect and massive resistance to the mandates of the United States Supreme Court are relatively old historical concepts practiced by various of the Sovereign States of the Union when it was felt the Court trespassed into spheres in which the various states had ideological and sociological views contrary to the edicts and mandates of the Court.
“It is interesting to speculate what the state courts.would have done if the segregation cases had reached the Supreme Court by way of state courts and not the federal courts.”
. Hence for the exercise of a court’s discretion there is a real difference between a completed case and one which is still pending, as we have held in United States ex rel. Graziano v. McMann, 2 Cir., 275 F.2d 284. This difference might serve to distinguish the O’Rourke case here from that of Pugach. Thus, there is much more reason to refuse an injunction in O’Rourke. Ón the whole, however — -except and unless the trial has proceeded further than was evident at our hearing — X do not believe the O’Rourke case has gone so far but that justice will be better served by the issuance of an injunction there also.
. So held also by Judge Rayfiel in Burack v. State Liquor Authority of State of N.Y., D.C.E.D.N.Y., 160 F.Supp. 161.