(dissenting).
From 1909 through 1915 the predecessor to § 222, viz: Section 14 of the New York Labor Law, provided that
Ҥ 14. Preference in employment of persons upon public works.
In the construction of public works by the state or a municipality, or by persons contracting with the state or such municipality, only citizens of the United States shall be employed; and in all cases where laborers are employed on any such public works, preference shall be given citizens of the state of New York. In each contract for the construction of public works a provision shall be inserted, to the effect that, if the provisions of this section are not complied with, the contract shall be void * * (Emphasis added).
Section 14 was amended by Act of March 11, 1915 to provide that
“In the construction of public works by the state or a municipality, or by persons contracting with the state or such municipality, preference shall be given to citizens over aliens. Aliens may be employed when citizens are not available * * * (Emphasis added).
In a case involving the first version of the statute, i. e., where employment of aliens upon public works was prohibited, and in the face of an argument that such statute was unconstitutional in that it denied to the plaintiffs the equal protection of the law afforded by the Fourteenth Amendment to the Constitution, the Supreme Court of the United States held that “the Labor Law of New York and its threatened enforcement do not violate the 14th Amendment or the rights of plaintiffs in error thereunder * * *''. Heim v. McCall, 239 U.S. 175, 194, 36 S.Ct. 78, 84, 60 L.Ed. 206, 218 (1915). This case was immediately followed by Crane v. New York, 239 U.S. 195, 36 S.Ct. 85, 60 L.Ed. 218 (1915) wherein the Supreme Court reaffirmed its holding in the Heim case and held further that a distinction made between aliens and citizens does not violate “the principle of classification”, in that there was an adequate basis for such a distinction and classification. The Crane case also held that the enforcement of said law did not deprive plaintiffs and his employees of liberty and property without due process of law.
The majority today holds that the Crane and Heim cases were declared to have been “weakened” and “not to be considered as controlling here” by the Supreme Court in Sugarman v. Dougall, 413 U.S. 634, 644-646, 93 S.Ct. 2842, 2849, 37 L.Ed.2d 853, 861 (1973), and that such conclusion was foretold in Graham v. Richardson, 403 U.S. 365, 376, 91 S.Ct. 1848, 1854, 29 L.Ed.2d 534, 544 (1971); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Takahashi v. Fish & Game Commission, 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478 (1948); and see also In re Griffiths, 413 U.S. 717, 721-722, 729, 93 S.Ct. 2851, 2854-2855, 2858, 37 L.Ed.2d 910, 915, 919 (1973); Ramos v. U. S. Civil Service Commission, 376 F.Supp. 361 (D.Puerto Rico 1974).
Each of these cases, however, dealt with a prohibition against aliens, not a preference with respect to them as is the situation in the case at bar under the current version of the New York Statute. This factor alone is sufficient to distinguish this case from those cases.
Classifications based on nationality may well be “inherently suspect and subject to close judicial scrutiny,” Graham v. Richardson, 403 U.S. 365, 372, 91 S.Ct. 1848, 1852, 29 L.Ed.2d 534, 541 (1971), and further “a State which adopts a suspect classification [may] ‘bear[s] a heavy burden of justification,’ * * * [and] in order to justify the use of a suspect classification, a State [may have to] show that its purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is ‘necessary * * * to the accomplishment’ of its purpose or the safeguarding of its interest”, In re Griffiths, 413 U.S. 717, 721-22, 93 S.Ct. 2851, 2855, 37 L.Ed.2d 910, 915 (1973) (footnotes omitted). But the fact remains that the very same U.S. Supreme Court has specifically held in dealing with the predecessor of the statute in ques*1174tion in a more “invidious” form that the view that it violated the principle of classification was “without foundation”. (Crane v. New York, 239 U.S. at p. 198, 36 S.Ct. at p. 85, 60 L.Ed. at p. 225). If Heim and Crane are to be overruled, the Supreme Court itself should do it. As was stated in Salerno v. American League of Professional Baseball Clubs, 429 F.2d 1003, 1005 (2d Cir. 1970), cert. denied, 400 U.S. 1001, 91 S.Ct. 462, 27 L.Ed.2d 452 (1971):
“[T]he Supreme Court should retain the exclusive privilege of overruling its own decisions, save perhaps when opinions already delivered have created a near certainty that only the occasion is needed for pronouncement of the doom.”
See also: United States v. Karathanos, 531 F.2d 26, 31 (2d Cir. 1976).
I am not unmindful of the alleged destruction of the underpinning of Crane and Heim, i. e., the so-called public interest doctrine theory, and of the “trend of the law” as indicated in the more recent cases cited by the plaintiffs but I do not feel that we should be expected to override in this case so definitive a position taken by the Supreme Court.
This is particularly true where we are asked to apply a judicial veto to a statute whose objectives have for generations been considered appropriate and necessary by the duly elected representatives of the people of the sovereign State of New York. Much lip service is given to the responsibility of state and local governments to alleviate their own unemployment problems, and to the undesirability of turning to the federal government for cures to such ills. At the same time the federal government has failed to remove the burdens placed on states by welfare and other costs even though the logic of Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971), would indicate that those burdens would more sensibly be placed on the central government. Until corrections are made in this area, it is premature to overrule Crane and Heim, for that step would make it more difficult for the states to perform public assistance tasks.
It stands to reason that if the State of New York enacts legislation creating and funding additional jobs and makes them available to all comers at a time when unemployment is widespread (as it is today) there will be an influx of non-New Yorkers, both citizens and aliens, seeking such jobs and New York’s desirable objective of eliminating unemployment within its borders will have been frustrated and defeated despite considerable taxpayer expense. Common sense told the State legislators, and it tells this writer, that this course merely compounds, and in no way alleviates, the problem which New York is legitimately and properly attempting to correct, and that it can only discourage New York and other states from taking any action to reduce unemployment.
In short, equal opportunity between citizens and aliens for jobs created by Congressional legislation to alleviate unemployment on a nationwide basis may make some sense (assuming arguendo one wants to draw no distinction between an alien and a citizen other than the right to vote). But the application of such a doctrine to frustrate and defeat a state’s attempt to solve the pressing local problems it faces under presently existing laws and conditions is nothing but theoretical and unrealistic and can in reality only be considered harmful.
Moreover, if mere labels such as “suspect classification”, “invidious discrimination”, etc., are put aside and the situation viewed with some objectivity, there are two good legal grounds on which this statute may be sustained; first, in that the statute now does not just give preferences to persons other than aliens but provides for a carefully developed plan which gives preferences even to various groups of New York residents as against other groups of New York residents, and second, in that statutory preferences to various deserving groups have heretofore been sustained by the courts in the face of equal protection challenges.
With respect to the first of such grounds, the majority say in essence that two wrongs do not make a right. That, however, is not *1175an answer because it is not a “wrong” under the federal Constitution for a State, for example, to provide jobs for residents of one area of the state which has suffered from heavy lay-offs and unemployment and not to those of another more affluent area. The preference here is, as indicated, merely part of a comprehensive, realistic plan to solve a pressing economic problem. Clearly states should have the power to develop carefully considered plans to alleviate unemployment, and differentiate between eligible persons therefor on a preferential basis only, so long as they do not single out and discriminate against a particular group. New York has designed and enacted just such a plan in its present statute. I note that the Supreme Court in Takahashi (and in Sugarman) merely held that “the power of a state to apply its laws exclusively to its alien inhabitants as a class is confined within narrow limits”, 334 U.S. at p. 420, 68 S.Ct. at p. 1143, 92 L.Ed. at p. 1488, 413 U.S. at p. 642, 93 S.Ct. at 2847, 37 L.Ed.2d at 859 (emphasis added). It did not hold that nonexclusive preferences as a part of general plan to reduce unemployment of the sort involved here were prohibited, “suspect”, “invidious”, or anything else.
In my view, then, what saves this statute is the fact that it represents a reasonable and logical attempt and plan to cure a real and present economic evil which has been thrust upon the State of New York in part by congressional inaction and in part by past mandates of the federal courts.
As to the second ground, particular attention should be paid to the tuition cases, e. g., Sturgis v. Washington, 368 F.Supp. 38 (W.D.Wash.), aff’d 414 U.S. 1057, 94 S.Ct. 563, 38 L.Ed.2d 464 (1973), and Starns v. Malkerson, 326 F.Supp. 234 (D.Minn.1970), aff’d 401 U.S. 985, 91 S.Ct. 1231, 28 L.Ed.2d 527 (1971). Those cases can only be read as holding that a state may limit receipt of public moneys or benefits (other than the necessities of life, see Shapiro v. Thompson, supra) to those who meet reasonable requirements that demonstrate their status as bona fide members of the commonwealth. The obvious intent of tuition provisions like those at issue in Sturgis and Starns is to discourage the exploitation of the state treasury by those from outside the commonwealth, which exploitation can discourage and render futile efforts by the state to solve its social problems. See also August v. Bronstein, 369 F.Supp. 190 (S.D.N.Y.), aff’d 417 U.S. 901, 94 S.Ct. 2596, 41 L.Ed.2d 208 (1974) and Russell v. Hodges, 470 F.2d 212 (2d Cir. 1972).
For these reasons I would adhere to the decisions heretofore made by the United States Supreme Court with respect to Section 222’s predecessor and hold such Section constitutional, particularly as set forth in its present form.
I feel that there is little merit to plaintiffs’ remaining arguments. I see no interference with regulations by Congress of or with respect to immigration and naturalization. New York in Section 222 has imposed no burden upon the entrance or residence of aliens in New York or elsewhere within the United States. It has merely not provided an added attraction which might tempt aliens or others who are non-residents of New York to move from places in which they presently reside to New York.
Moreover, the writer sees nothing in the Immigration and Nationality Act of 1952, 8 U.S.C. § 1101, et seq., which pre-empts the field with respect to the employment of aliens and citizens in New York or on a nationwide basis or precludes New York or any other state from dealing with the problem involved here in the manner which New York has selected. Again, if Congress wishes to enact legislation, dealing with unemployment on a nationwide basis, affording equal opportunity to citizens and aliens alike, or if it wishes to assume responsibility for all welfare costs, etc., the way is clearly open to it to do so but in the meanwhile one must be practical and sensible and deal with the problem at hand given the existing laws, facts and circumstances.
The majority seeks comfort in a footnote in the recent Supreme Court opinion in DeCanas v. Bica, 424 U.S. 351, 96 S.Ct. *1176933, 47 L.Ed.2d 43, 44 U.S.L.W. 4235 (1976), viz.:
“Of course, state regulation not congressionally sanctioned that discriminates against aliens lawfully admitted to the country is impermissible if it imposes additional burdens not contemplated by Congress,” 424 U.S. at 358 n.6, 96 S.Ct. at 938, 47 L.Ed.2d at 50.
but I respectfully submit that they mistake the purpose and effect of the present statute. No “discrimination” or “burden” is intended or effected. A preferential benefit only is conferred upon a limited, and needy, group, in particular areas within the State and for limited periods of time, with consequent limited additions to the State’s pressing budgetary problems. It is not a “burden” or a “discrimination” to say that the remaining State residents and non-residents (including aliens) are not entitled to the same benefits if they move into the depressed areas. Carried to its logical conclusion, the reasoning of the majority would lead us to hold that all benefits to one depressed area or even a needy group of citizens add a “burden” and “discriminate” against all other areas or groups within the State. In addition State graduated income taxes, marital deductions, emergency aid to particular cities (New York, Yonkers, etc.) would fall under the sweeping language of the United States Constitution so interpreted. The results in my opinion would be intolerable.
The same analysis indicated above, suggesting that the preferential treatment of native students in the tuition cases did not constitute a discrimination which violated-the Equal Protection Clause, applies here as well. To grant a job, to lower tuition, to reduce taxes, to give veteran’s benefits— these are not in a practical sense the imposition of “burdens” on those not affected. Failure to grant a benefit is not identical in such situations with imposing a burden. That no burden is imposed by the statute means that it does not fall afoul of the pre-emption doctrine. Nothing in the Immigration and Nationality Act, as I read it, was meant to prevent action of the sort New York has taken to create employment for its needy citizens. Nothing in the Act was “intended to preclude even harmonious state regulation touching on aliens in general, . . . ” DeCanas v. Rica, 424 U.S. 351, 358, 96 S.Ct. 933, 937, 47 L.Ed.2d 43, 50 (1976).
There is similarly little merit to plaintiffs’ contention that Section 222 constitutes an interference with an alien’s or a non-resident’s inherent right to travel. The fact that a State does not hold out an inducement to out-of-staters to come into the State cannot reasonably be said to penalize such out-of-staters’ right to travel. Cf.: Crandall v. Nevada, 73 U.S. (6 Wall.) 35, 18 L.Ed. 744 (1868); Edwards v. California, 314 U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119 (1941).
Finally, even if the argument should be accepted (and I do not of course believe that it should be) that the current New York plan is invalid because aliens are treated differently from similarly situated non-aliens (e. g., non-resident citizens), it would nevertheless not to my mind follow that the entire statutory scheme in question should fall. Nothing in the cases cited to us indicates that it is impermissible for a State to grant preferences to residents in distributing public assistance (except, perhaps, for essentials) so long as subdivisions are not created among the non-residents. That is, I believe that New York without doubt can use its public works money to hire first all aliens and American citizens who have resided in New York for a specified period, and then consider all non-New York residents for positions that remain. And of course nothing prevents preferences from being given to residents of one New York city over those of others. Under such a scheme, there would be no differentiation between non-New York American citizens and aliens. The only distinction drawn would be between bona fide New York — or New York subdivision — residents (aliens and non-aliens alike), and non-residents. Such a rational response to the State’s social problems could not, as I see it, be considered a violation of the Equal Protec*1177tion Clause or a deprivation of any fundamental liberty. At most, then, all New York need do to render its statute less susceptible to attack is provide that aliens, like non-New York American citizens, become eligible for the employment preferences after they reside for the requisite period of time in the State. I do not read the opinions of Judges GURFEIN and NEAHER to say anything to the contrary.
For the foregoing reasons, plaintiffs’ motions for preliminary injunctions should be denied and plaintiffs’ complaints should be dismissed.