(dissenting).
In my opinion, the federal courts are without jurisdiction to pass upon the *334merits of plaintiffs’ complaint. Despite references in the complaint to the Civil Rights Act, 42 U.S.C. § 1983, the relief sought is actually by way of habeas corpus. Jurisdiction fails because plaintiffs have not exhausted State remedies as required by 28 U.S.C. § 2254(b).
In the light of the two recent pronouncements of the Supreme Court in Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971) and Humphrey v. Cady, 405 U.S. 504, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972), jurisdiction must be recognized as the keystone in the arch at the entranceway to the federal courts. Yet the majority either disregard, or by judicial legislation repeal, the jurisdictional requirements of 28 U.S.C. § 2254 (b). That section specifies that the applicant for “a writ of habeas corpus” be “in custody pursuant to the judgment of a State court,” that the writ shall not be granted “unless it appears that the applicant has exhausted the remedies available” in the State courts and that such available State corrective processes are ineffective.
The Supreme Court reaffirmed the vitality of these requirements in saying that “a state prisoner must normally exhaust available state judicial remedies before a federal court will entertain his petition for habeas corpus.” (Picard, 404 U.S. p. 275, 92 S.Ct. p. 512). “The exhaustion of state remedies doctrine” has been codified in § 2254(b) and “reflects a policy of federal-state comity” the purpose of which is “to give the State an initial ‘opportunity to pass upon and correct’ alleged violations of its prisoners’ federal rights.” {Id. p. 275, 92 S.Ct. p. 512). The Supreme Court apparently is stating a policy still in force and effect when it writes, “We have consistently adhered to this federal policy, for 'it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation.’ ”1 The Court then emphasized the necessity of showing that the person confined must establish that he was given the State courts a first opportunity to pass upon “the same claim he urges upon the federal courts” {Id. p. 276, 92 S.Ct. p. 512). The Supreme Court, therefore, reversed the Court of Appeals (434 F.2d 673, 1st Cir., 1970) and, in effect, reinstated the District Court’s dismissal of the petition for a writ of habeas corpus.
In Humphrey v. Cady, the case was remanded not because § 2254(b) could be disregarded but because it was not clear as to “precisely what claims were presented in the state habeas petition.” 404 U.S. 1055, 92 S.Ct. 1055 fn. 17 (1972). The Court limited § 2254(b) in its application to those situations where State remedies were still open to the applicant. But in Humphrey relief had been sought in the State courts; it was merely a question of what issues had been presented. Here, however, no opportunity has been given to the State courts to correct constitutional deficiencies.
The majority hold that the Supreme Court in Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971) held that “whether or not petitioners had exhausted state remedies, they were entitled to proceed under the Civil Rights Act.” However, a mere allegation that the proceeding is brought under the Civil Rights Act does not thereby render § 2254(b) and its requirements inapplicable. Nor could the Supreme Court have decided Picard, as it did just six days after Wilwording if it had intended to rule that any person who can sue under § 2254 may also sue under § 1983, thereby avoiding all exhaustion prerequisites.
In Smith v. Follette, 445 F.2d 955 (2d Cir. 1971), a prisoner sued the Warden, alleging that as an addict he was entitled to addiction treatment on equal protection grounds, that New York law granted treatment to addicts guilty of *335a misdemeanor but only to convicted felons in the sentencing court’s discretion. Judge Kaufman in his concurring opinion stated:
. I believe that these applications are essentially habeas corpus petitions, requiring exhaustion of state remedies, .... Each petitioner is “ ‘challenging the validity of his sentence with the ultimate object of obtaining release’ from prison, . Petitioners are not seeking release only incidentally to a claim that actions of prison parole, or other correctional authorities are illegal. . It is the historic and essential function of the habeas corpus petition to afford relief from confinement unlawfully imposed. . . . Thus, there is no reason for denying their natural meaning to the words of 28 U.S.C. § 2254, that a writ of habeas corpus may be entertained by a federal court “in behalf of a person in custody pursuant to the judgment of a State court . . . on the ground that he is in custody in violation of the Constitution . . .” Nor is it of any moment that part of the remedy sought by petitioners is not outright freedom from all confinement, but rather transfer from a state penal institution to another institution for treatment of their addiction. Outright freedom is not the only remedy available by a writ of habeas corpus.
Id. at 962 (emphasis in original).
In this case plaintiffs are not protesting the conditions of their confinement but the lawfulness of the procedure by which they were confined to Dannemora and Matteawan.
Just as prisoners seeking a determination that their custody is violative of law have been traditionally required to exhaust, so petitioners in custody in a mental hospital alleging that their continued confinement is violative of law have been traditionally required to exhaust. See United States ex rel. Antczak v. Superintendent, 354 F.2d 635 (7th Cir. 1965) (relator claimed that he was no longer insane); Williams v. Dalton, 231 F.2d 646 (6th Cir. 1956) (section 1983 action claiming that commitment to mental hospital without adequate hearing violative of fourteenth amendment dismissed for failure to exhaust); Gidney v. Sterling, 202 F.Supp. 344 (E.D.Ark. 1962) (exhaustion required of petitioner claiming that his commitment violative of due process in that he was not afforded counsel nor was he permitted to call medical witnesses to testify); United States ex rel. Spinks v. Zeller, 188 F.Supp. 767 (N.D.W.Va.1960) (petitioner’s claims that the procedures by which he was hospitalized violated due process dismissed for failure to exhaust); Miller v. Director, 146 F.Supp. 674, 679-80 (S.D.N.Y.1956) (Kaufman, J.) aff’d on opinion below, 243 F.2d 527 (2d Cir. 1957) (petitioner’s claims that he was committed while sane and that the procedures by which he was committed were violative of Constitution dismissed for failure to exhaust).
The New York State legislature, the State courts, and the Bar have all manifested a sensitivity to the legal procedures leading to the confinement of the mentally ill. We should permit the State courts to have the initial opportunity to pass upon and correct the alleged violations of these petitioners’ federal rights. Petitioners can clearly seek habeas corpus in the State courts and challenge their commitment on the same grounds they urge here. See N.Y.Const. art. 1, § 4; People ex rel. Brown v. Johnston, 9 N.Y.2d 482, 485, 215 N.Y.S.2d 44, 46, 174 N.E.2d 725, 762 (1961) (“ . . . it [the writ] can be invoked to obtain a hearing to test the validity of a commitment in an institution for the criminally insane.”); People ex rel. Ciavarelli v. Herold, 32 A.D.2d 692, 300 N.Y S.2d 7 (3d Dep’t 1969), aff’d mem., 27 N.Y.2d 826, 316 N.Y.S.2d 435, 265 N.E 2d 257 (1970).
Moreover, the State courts have manifested an awareness of the constitutional requirements attending the procedures by which the mentally ill are confined. For example, in People v. Lally the Court of Appeals read into section 454 of the old Code of Criminal Procedure all of *336the procedural safeguards of sections 74 and 85 of the Mental Hygiene Law including jury trial for defendants acquitted by reason of insanity before they can be committed to a State mental hospital. People v. Lally, 19 N.Y.2d 27, 34-35, 277 N.Y.S.2d 654, 660, 224 N.E.2d 87, 92 (1966). See also Fhagen v. Miller, 29 N.Y.2d 348, 353-356, 328 N.Y.S.2d 393, 397, 278 N.E.2d 615, 618 (1972) (“ . . . since due process is not a concept to be rigidly applied, it is not offended if notice and a hearing follow confinement of a mental patient in an urgent case, as long as he is given the opportunity, within a short time, to litigate the question of his mental illness.” (emphasis added)); In re Buttonow, 23 N.Y.2d 385, 393-394, 297 N.Y.S.2d 97, 103-104, 244 N.E.2d 677, 682 (1968) (reading into section 71 of the Mental Hygiene Law that a mentally ill patient, converted from involuntary to voluntary status, be accorded the right to judicial hearing and review of his change in status); In re Coates, 9 N.Y.2d 242, 252, 213 N.Y.S.2d 74, 82, 173 N.E.2d 797, 803 (1961) (reading into section 76 of the Mental Hygiene Law a requirement that notice of a right to demand a jury trial on incompetence means actual notice).
The stressing of any jurisdictional requirement provokes the questions: What difference does it make? The New York courts will undoubtedly recognize the lack of equal protection in the legislation, therefore, why subject the petitioners and the New York courts to further litigation when we, the federal courts, by the exercise of their overriding power, can declare the New York laws unconstitutional? But what then becomes of the fact that federal courts are courts of limited jurisdiction under the same Constitution invoked here? Of course, it would be easier to abolish jurisdictional requirements entirely. The Supreme Court could open its doors to all by not requiring a Jurisdictional Statement. But so long as jurisdictional standards have been set by legislative bodies, they should be honored. When legislatures choose to enact a law which provides that any person who lives within ten miles of any courthouse may seek justice there without regard to the nature or amount of the controversy, a jurisdictional Utopia of sorts may be achieved although I very much doubt it. In short, I would hold that plaintiffs must establish that they have met the requirements of § 2254(b). After all it is not unseemly to impose this burden if federal-state comity is to have any meaning. The plaintiffs are charged with New York crimes, they are confined in New York institutions pursuant to New York court orders, the New York legislature has enacted the laws relating to their incarceration and the New York courts have shown themselves to be mindful of the many situations affecting the confinement of the allegedly mentally ill. Why then is it inappropriate to permit the New York courts to have “the initial ‘opportunity to pass upon and correct’ alleged violations of its prisoners’ federal rights.” ? Picard, 404 U.S. p. 275, 92 S.Ct. p. 512. I would follow Picard and dismiss the complaint.
. Quotation from Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 590, 94 L.Ed. 761 (1950).