. (dissenting).
I am unable to concur in the decision of the majority.
This suit is one under title 28 USCA § 380 to enjoin defendants from the enforcement or attempt to enforce chapter 50, p. 119, of the Laws of the Extraordinary Ses*665sion of the Washington state Legislature, 1933, known as the “Washington State Industrial Recovery Act” (Laws 1933, Ex. Sess., p. 119, Rem. Rev. Stat. of Wash., 1934 Annual Pocket Part, §§ 7657- — 1 to 7657 — 10).
The majority holds that plaintiff’s hill should be dismissed and interlocutory injunction denied because plaintiff has not “exhausted his avenues of relief or appeal provided by the state statute in question or the Barbers Code or regulations thereunder, nor that he will be unable to. question the validity or constitutionality of the statute or Code or acts done or threatened thereunder in any enforcement proceedings which may be instituted by or at the request of the enforcement officials. Nor is it alleged by plaintiff that he has been deprived of any hearing provided by the statute or Code or administrative regulations applicable thereto.”
If it be conceded (a matter not beyond question, City Bank Farmers’ Trust Co. v. Schnader, 291 U. S. 24-29-34, 54 S. Ct. 259, 78 L. Ed. 628) that lack of such showing, if there was provision in the act for review, would support the determination of the majority, yet no review by appeal or provision for a hearing is made by the statute in question.
As to the adequacy of a remedy by any review pursuant to the barbers’ code or regulations thereunder, it is to be noted that the plaintiff’s attack is npon the statute itself which undertook to adopt at its enactment the then nonexistent barbers’ code. His complaint is not of the abuse of power possessed, but of a total absence of power because of such course. In such case an immediate resort to the court is not premature. Village of Euclid v. Ambler Realty Co., 272 U. S. 365-386, 47 S. Ct. 114, 71 L. Ed. 303, 54 A. L. R. 1016; Terrace v. Thompson, 263 U. S. 197-215, 44 S. Ct. 15, 68 L. Ed. 255; Pierce v. Society of the Sisters, 268 U. S. 510-535, 45 S. Ct. 571, 69 L. Ed. 1070, 39 A. L. R. 468; Yarnell v. Hillsborough Packing Co. (C. C. A.) 70 F.(2d) 435-438.
Concerning the ability of plaintiff to defend himself upon the grounds alleged in the bill in any enforcement proceeding brought under the statute being an adequate remedy, in a case such as the present, where such a suit would be in a state court and there is in the act in question provision for a fine of $500 for each offense, and each day the violation continues is by the act made a separate offense (section 4 (a) of the act, Rem. Rev. Stat. of Wash. § 7657 — 4 (a), the opportunity for such a defense is not an adequate remedy. Ex parte Young, 209 U. S. 123-163-167, 28 S. Ct. 441, 52 L. Ed. 714, 13 L. R. A. (N. S.) 932, 14 Ann. Cas. 764; Oklahoma Operating Co. v. Love, 252 U. S. 331-336, 40 S. Ct. 338, 64 L. Ed. 596; Life & Casualty Ins. Co. v. McCray, 291 U. S. 566-574, 575, 54 S. Ct. 482, 78 L. Ed. 987; City Bank Farmers’ Trust Co. v. Schnader, supra.
Consideration herein will he limited to the effect, if any, to be given the state statute, and particularly section 4 (a) thereof (Laws 1933, Ex. Sess., p. 121, § 4; Rem. Rev. Stat. of Wash. 1934 Annual Pocket Part, § 7657 — 4 (a), which provides: “Sec. 4. (a) When a code of fair competition has been approved or prescribed by the President under the National Industrial Recovery Act, any violation of any provision thereof in any transaction within this state not in or affecting ‘interstate or foreign commercewithin the definition thereof as aforesaid, shall be a misdemeanor and, upon conviction thereof, an offender shall be fined not more than five hundred dollars ($300) for each offense, and each day such violation continues shall be deemed a separate offense (Italics now supplied.)
This act was approved January 17, 1934. The code of fair competition for the barber sliop trade was, by the President, approved, as alleged, some three months later upon April 19, 1934.
Section 1 of chapter 50, supra, p. 119, recites and declares: “Section 1. A statewide emergency productive of widespread unemployment and disorganization of industry, which burdens commerce, affects the public welfare and undermines the standards of living of the people of the State of Washington hereby is declared to exist, and it hereby is recognized that such an emergency exists throughout the nation. It hereby is declared to be the policy of this state to provide for the general welfare by cooperating with and assisting the national government in promoting the organization of industry for the purpose of cooperative action among trade groups, to induce and maintain united action of labor and management under adequate governmental sanction and supervision, to eliminate unfair competitive practices, to promote the fullest possible utilization of the present productive capacity of industry, to avoid undue restriction of production except as may be temporarily required, to increase the consump*666lion of industrial and agricultural products, increasing purchasing power, to reduce and relieve unemployment, to improve standards of labor, and otherwise to rehabilitate industry and conserve natural resources, and otherwise as announced in the Act of Congress entitled: ‘An Act to encourage national industrial recovery, to foster fair competition, and to provide for the construction of certain useful public works, and for other purposes, ‘approved June 16, 1933, and known as the ‘National Industrial Recovery Act.’ ”
Whether viewed as a law relating to the regulation of an occupation, hours, wages, . and conditions of labor, or for the general welfare, chapter 50 is a law based on the police power of the state — a power reserved to the state — a power not conferred by the Constitution. Among the many decisions so holding, the following are sufficient for the present purpose: In re Rahrer, 140 U. S. 545, 554, 11 S. Ct. 865, 35 L. Ed. 572; Keller v. United States, 213 U. S. 138, 144, 29 S. Ct. 470, 53 L. Ed. 737, 16 Ann. Cas. 1066; House v. Mayes, 219 U. S. 270, 282, 31 S. Ct. 234, 55 L. Ed. 213; Chicago, Rock Island & Pacific Ry. Co. v. Arkansas, 219 U. S. 453, 465, 31 S. Ct. 275, 55 L. Ed. 290.
The right to exercise the police power, the state Legislature can not alienate, surrender or abridge by any delegation of power. The Legislature cannot abdicate its function and so adopt the unknown and unknowable. Boston Beer Co. v. Massachusetts, 97 U. S. 25-33, 24 L. Ed. 989; Stone v. Mississippi, 101 U. S. 814, 25 L. Ed. 1079; Butchers’ Union Co. v. Crescent City Co., 111 U. S. 746-751, 4 S. Ct. 652, 28 L. Ed. 585; Powell v. Pennsylvania, 127 U. S. 678-683, 8 S. Ct. 992, 1257, 32 L. Ed. 253; Missouri, Kansas & Texas Railway Co. et al. v. Oklahoma, 271 U. S. 303-307, 46 S. Ct. 517, 70 L. Ed. 957; E. C. Warner Co. v. W. B. Foshay Co. (C. C. A.) 57 F.(2d) 656-663.
Although the application of this rule made in the following case may be questioned, United States v. Winans, 198 U. S. 371, 25 S. Ct. 662, 49 L. Ed. 1089, that fact takes nothing from its recognition by the Supreme Court of the state: “The police power is not confined to subjects of safety, but extends to those of convenience and prosperity. Chicago, B. & Q. R. Co. v. People of State of Illinois ex rel. Drainage Com’rs, 200 U. S. 561, 592, 26 S. Ct. 341, 50 L. Ed. 596, 4 Ann. Cas. 1175. It undoubtedly extends to the conservation of fish. Smith v. Maryland, 18 How. 71, 15 L. Ed. 269. Nor is it given up, nor can it be given up, by any Legislature to the national government.” State v. Towessnute, 89 Wash. 478 at page 485, 154 P. 805, 808.
Concerning the effect of the declaration of the emergency described in section 1 of chapter 50, it has been held that the mere existence of a state of war did not suspend the guarantees of the Fifth and Sixth Amendments. United States v. L. Cohen Grocery Co., 255 U. S. 81 at page 88, 41 S. Ct. 298, 65 L. Ed. 516, 14 A. L. R. 1045. See, also, Darweger v. Staats et al., 153 Misc. 522, 275 N. Y. S. 394, November 13, 1934 (McNaught, J.).
Reaching the conclusion stated, it appears to the undersigned that the motion to dismiss should be denied and an interlocutory injunction granted in so far as the state and county officers are concerned.