dissents.
FORM 15A, INDICTMENT (RCr6.10_
PIKE CIRCUIT COURT
COMMONWEALTH OF KENTUCKY
vs. No. ■
Carl Braden Anne Braden KRS 432.040
Alan McSurely
Margaret McSurely
Joseph Mulloy
The grand jury charges:
On or about the 7 day of September 1967, And within 12 mo. before the Finding of this Indictment, in Pike County, Kentucky, the above named defendant (s) committed the offense of advocating, suggesting or teaching the duty, necessity, propriety or expediency of criminal syndicalism or sedition, or of printing, publishing, editing, issuing or knowing circulating, selling, or distributing, or having in their possession for the purpose of publication or circulation any written or printed matter in any form advocating, suggesting or teaching, criminal syndicalism or sedition, or of organizing or helping or organize, or becoming a member of or voluntarily assembling with any society or assemblage of persons that teaches, advocates, or suggests the doctrine of criminal syndicalism or sedition, committed in manner and form as follows, to-wit: The above named defendants, in Pike County and before the finding of this indictment did knowingly and feloniously, by word or writing, advocate or suggest the duty, necessity, propriety and expediency of physical violence, intimidation, terrorism or other unlawful acts or methods to accomplish a political and or to bring about political revolution, and did advocate or suggest by word, act or writing, public disorder, or resistance to, or the change or modification of the Government, Constitution, and laws of the Commonwealth of Kentucky or its political subdivisions, by force, violence or other unlawful means, and did knowingly circulate, sell, or distribute and did have in their possession for the purpose of publication or circulation, written or printed matter, advocating, suggesting and teaching criminal syndicalism, or sedition, or the change or modification of the Government of the Commonwealth of Kentucky or its political subdivisions by force or violence, or other unlawful means, and did become members of a society or assemblage, and did assemble with persons teaching, advocating or suggesting the doctrine of criminal syndicalism or sedition, or the overthrow change, or modification of the Government of the *855Commonwealth of Kentucky by force, violence or other unlawful means against the peace and dignity of the Commonwealth.
MOYNAHAN, District Judge.
I must respectfully dissent from the opinion rendered herein by my learned colleagues.
In this action the plaintiffs seek to have us declare K.R.S. 432.040 unconstitutional and to enjoin the defendants from prosecuting the plaintiffs, McSurely, and the intervening plaintiffs, Mulloy and Braden, for an alleged violation thereof.
It is undisputed that the McSurelys and Mulloy were under arrest charged with violation of said statute at the time this suit was filed, and the intervening plaintiffs, Braden, were indicted charged with such violation prior to their intervention herein.
28 U.S.C. § 2283 provides as follows: “A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.”
The legislative history of this statutory provision and the cases decided thereunder clearly indicate the desire of the Congress to prevent unseemly confrontation between the State and Federal Courts. While plaintiffs contend *856that this principle has been abrogated by Dombrowski et al. v. Pfister, etc., 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22, a careful reading of that case discloses that warrants issued in the lower Courts had been dismissed by a Magistrate at the time the suit was filed and there was therefore no state “proceeding” pending. Moreover in Dombrowski the Supreme Court said in footnote 2 at page 484, 85 S.Ct. at page 1119:
“* * * This statute (28 U.S.C. 2283) and its predecessors do not preclude injunctions against the institution of state court proceedings, but only bar stays of suits already instituted.” (Emphasis.added.)
Here the McSurelys and Mulloy had been arrested upon a warrant duly issued by the State Courts; they had executed bond and their case had been assigned for examining trial. In my opinion no exercise in semantics can alter the fact that there was a “proceeding” pending against them. A fortiori a “proceeding” was pending against the Bradens, since they were indicted by the Pike County Grand Jury prior to their intervention herein.
To grant injunctive relief herein is to extend Dombrowski beyond its facts and to totally ignore footnote 2 thereof (supra).
Nor may it reasonably be said that the injunctive process granted herein is “in aid of (the Court’s) jurisdiction” since this argument could with equal vigor be applied to any case involving a constitutional attack upon a statute.
This case does not come within any of the three permissible exceptions to the statute (28 U.S.C. § 2283) and we are therefore prohibited by the express provisions thereof from enjoining the State Court proceeding.
Since in my opinion we have no power to enjoin the State Court, traditional principles of comity between the State and Federal Courts should dictate that we abstain from exercising jurisdiction herein.
In Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324, the Supreme Court said:
“The power reserved to the states under the Constitution to provide for the determination of controversies in their courts may be restricted by federal district courts only in obedience to Congressional legislation in conformity to the Judiciary Article of the Constitution. Congress, by its legislation, has adopted the policy, with certain well defined statutory exceptions, of leaving generally to the state courts the trial of criminal cases arising under state laws, subject to review by this Court of any federal questions involved. Hence, courts of equity in the exercise of their discretionary power should conform to this policy by refusing to interfere with or embarrass threatened proceedings in state courts save in those exceptional cases which call for the interposition of a court of equity to prevent irreparable injury which is clear and imminent; and equitable remedies infringing this independence of the states — -though they might otherwise be given — should be withheld if sought on slight or inconsequential grounds. It is a familiar rule that courts of equity do not ordinarily restrain criminal prosecutions. No person is immune from prosecution in good faith for his alleged criminal acts. Its imminence, even though alleged to be in violation of constitutional guaranties, is not a ground for equitable relief since the lawfulness or constitutionality of the statute or ordinance on which the prosecution is based may be determined as readily in the criminal case as in a suit for an injunction.”
In Zwickler v. Koota, 261 F.Supp. 985 (decided subsequent to Dombrowski), a Three Judge District Court in the Eastern District of New York confronted with an issue very similar to that presented in the instant case said:
“The fact that a case is within the adjudicatory power of this court does not necessarily require that its power *857be exercised. As a general rule and policy a district court, on its own motion, may, in its discretion, refuse to act. ‘Especially should it do so where its powers are invoked to interfere by injunction with threatened criminal prosecutions in a state court.’ ”
The plaintiffs may raise in the Courts of Kentucky (i. e. the examining court, Circuit Court and Court of Appeals) the same identical challenge of unconstitutionality which they seek to invoke here. Any aggrieved party may appeal from the decision of the Court of Appeals of Kentucky to the Supreme Court of the United States, which is exactly the same remedy available here.
I am gravely concerned with the increasing tendency of the lower Federal Courts to interfere with the orderly processes of our sister State Courts without express mandate therefor from the Supreme Court.
I would therefore dismiss the Complaint and allow the case to proceed in the State Courts.