Appendix — De Canas v. Bica

Supreme Court, U. $. |

FILED |

APPENDIX

AUG 4 1975

' JR..CLERK

——

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1974

No. 74-882

LEONOR ALBERTI DE CANAS and

MIGUEL CANAS.

Petitioners,

V3.°

ANTHONY G. BICA and

JUAN SILVA,

Respondents.

ON WRIT OF CERTIORARI TO THE

COURT OF APPEAL OF THE STATE

OF CALIFORNIA SECOND APPELLATE DISTRICT

PETITION FOR CERTIORARI FILED JANUARY 17, 1975

Washungton. OC. @ CLB PUBLISHERS « LAW PRINTING CO. « (202) 399-0625 CERTIORARI GRANTED JUNE 23. 1975

(i)

INDEX

Page

RELEVANT DOCKET ENEMIED ccc ccc cece ese scees la

JUDGMENTS OF THE COURTS BELOW............. 2a

COMPLAINT FOR DAMAGES AND INJUNCTIVE

i ~tnirecak ese eeee Cee Nees eWeek eee es 3a

st Biles Fae 1Sa

RULING ON DEMURRER AND ORDER VA-

CATING NOTICE OF INTENDED DECISION

IN RE PRELIMINARY HEARING ............... l6a

la

RELEVANT DOCKET ENTRIES IN THE

PROCEEDING BELOW

Date

October 24, 1972

November 22, 1972

February 14, 1973

April 30, 1973

July 26, 1974

October 24, 1974

Proceedings

Complaint for Damages and Injunctive

Relief filed

Defendants Demurrer to Complaint filed

Ruling on Demurrer and Order Vacating

Notice of Intended Decision in Re

Preliminary Injunction

Notice of Appeal filed by Plaintiffs

from Order of February 14, 1973

Judgment of Court of Appeal, Second

Appellate District, Division II

Petition for Rehearing Denied by

California Supreme Court

2a 3a

JUDGMENTS OF THE COURTS BELOW | CALIFORNIA RURAL LEGAL ASSISTANCE

BURTON D. FRETZ

The Judgment of the Court of Appeal of the State of WILLIAM D. FARBER

California Second Appellate District is set forth in the Attorneys at Law

Appendix to the Petition for Certiorari filed January 126 West Mill Street

17, 1975, at p. la. Post Office Box 425

The Order of The Supreme Court of California Santa Maria, California 93454

denying the petition for hearing is set forth in the Telephone: (805) WA 2-4563

Appendix to the Petition for Certiorari filed January

17, 1975, at p. Ib. CHERN, SHARPE, FARREN & KRESSE

Attorneys at Law FILED

117 East Cook Street SUPERIOR COURT

Santa Maria, California 93454 OCT 24 1972

Telephone: (805) WA-2-4553 D.E. Lewis, County Clerk

By Beverly Pedigo

Attorneys for Plaintiffs Deputy Clerk

IN THE SUPERIOR COURT OF

THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF

SANTA BARBARA

LEONOR ALBERTI DE CANAS, and

MIGUEL CANAS,

No. SM 11789

Plaintiffs,

VS.

COMPLAINT FOR

)

)

)

)

)

)

)

ANTHONY G. BICA, ) DAMAGES AND

JUAN SILVA, ) INJUNCTIVE RELIEF

)

)

)

)

)

)

DOES | through

X, inclusive,

Defendants.

4a

FIRST CAUSE OF ACTION

Plaintiffs allege:

1. This action is brought pursuant to California

Labor Code § § 2805(a) and 2805(c). Section 2805(a)

provides as follows:

No employer shall knowingly employ an alien who

is not entitled to lawful residence in the United

States if such employment would have an adverse

effect on lawful resident workers.

Section 2805(c) provides:

The foregoing provisions shall not be a bar to civil

action against the employer based upon violation

of subdivision (a).

2. Plaintiff LEONOR ALBERTI de CANAS is the

wife of plaintiff MIGUEL CANAS. She is a resident of

the City of Santa Maria, County of Santa Barbara,

California. Plaintiff LEONOR ALBERTI de CANAS

lawfully entered the United States from Honduras and

was duly registered according to law as an immigrant on

September 22, 1966. Her status as an immigrant is

further defined as Class SA-1 which entitied her to

work in many occupations including that of agricultural

worker. Plaintiff LEONOR ALBERTI de CANAS has

been employed for the past five (5) years as a field

agricultural worker. Plaintiff LEONOR ALBERTI de

CANAS is known among fellow employees and former

employers as a conscientious and diligent worker.

3. Plaintiff MIGUEL CANAS lives with his wife and

six (6) minor children in the City of Santa Maria,

County of Santa Barbara. Plaintiff MIGUEL CANAS

lawfully entered the United States from El Salvador and

Sa

was duly registered according to law as an immigrant on

January 1, 1965. Plaintiff CANAS’ status as an

immigrant is further defined as Class 0-1 which entitled

him to work in every occupation except those few

reserved for citizens. Plaintiff MIGUEL CANAS has

been employed for the past five (5) years as a field

agricultural worker. Plaintiff CANAS is known among

his fellow employees and former employers as a

conscientious and diligent worker.

4. Defendant ANTHONY G. BICA is, inter alia, a

farm labor contractor who knowingly employs illegal

alien entrants into the United States as farm workers on

his crews in place of qualified and lawfully resident

local workers.

5. Defendant BICA at all times relevant herein did

and does reside, and did and does maintain his principal

place of business, in the City of Santa Maria, County of

Santa Barbara, California.

6. Defendant JUAN SILVA is, inter alia, the

manager and foreman of defendant BICA. Defendant

SILVA employs illegal entrants as farm workers as crew

members in place of qualified and lawfully resident

local workers.

7. Plaintiffs are informed and believe and therefore

allege that at all times mentioned herein Does | through

X were grape growers who obtained employees to work

in their grape vineyards through defendants BICA and

SILVA; that ‘through defendants BICA and SILVA

defendants Does I through X are able to employ and do

employ illegal entrants as farm workers in place of

qualified legally resident local workers. The true names

or capacities, whether individual, corporate, associate or

otherwise, of the defendants Does I through X are

6a

unknown to plaintiffs, who therefore sue said de-

fendants by such fictitious names, and plaintiffs will

amend this compiaint to show their true names and

capacities when the same have been ascertained. Does I

through X and the named defendants where the agents

and the employees of their co-defendants and in doing

the things herein alleged were acting within the course

and scope of such agency and employment at all times.

8. PlaintiffS MIGUEL CANAS and LEONOR

ALBERTI de CANAS were offered employment as farm

workers by defendants BICA and SILVA and accepted

said offers of employment on or about June 5, 1972. In

accepting such employment with defendants each

plaintiff gave up previous farm labor employment with

another employer based upon the representations made

by defendants BICA and SILVA that employment with

defendants would provide a good and steady job.

9. Each plaintiff herein worked for defendants BICA

and SILVA from a time on or about June 5, 1972 until

a time on or about September 28, 1972. On or about

September 28, 1972 defendants denied plaintiffs further

employment on the sole ground that defendants then

had a_ sufficient supply of labor. During their

employment with defendants each was a good and hard

worker and defendants at no time suggested that they

were unsatisfactory employees in any respect.

10. Defendants are open and notorious employers of

illegal aliens and encourage illegal aliens to compete

with local workers for jobs in order to depress local

wages and working conditions.

11. Defendants’ work crews have been raided by the

United States Border Patrol of the Immigration and

Naturalization Service on at least 4 different occasions

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during the summer and fall of 1972: on each occasion

defendants were found to be employing illegal aliens:

and said illegal aliens were apprehended and removed to

Mexico on each occasion. Plaintiffs are informed and

believe and therefore allege that the United States

Border Patrol has apprehended no fewer than 40 illegal

aliens from the work crews of defendants during the

past 6 months; that the following numbers of illegal

aliens were apprehended by the United States Border

Patrol from defendants’ work crews on or about the

following dates: On August 10, 1972, 15 illegal aliens

were apprehended; on September 23. 1972, 7 illegal

aliens were apprehended; on October 17, 1972, 8 illegal

aliens were apprehended; and on October 23, 1974, 4

illegal aliens were apprehended.

12. Defendants’ employment of illegal aliens at the

times alleged herein was wilfull and with actual or

constructive knowledge of the illegal alien status of said

workers. Certain of the illegal aliens apprehended from

defendants’ work crews and returned to Mexico by the

United States Border Patrol subsequently entered

illegally into the United States and worked for

defendants.

13. On or about October 15, 1972 plaintiff MIGUEL

CANAS asked defendant JUAN SILVA for employment

for himself and the other named plaintiff. Defendant

SILVA refused jobs to any of the plaintiffs for the sole

reason that he and defendant BICA had no more jobs

available on their work crews.

14. On October 17, 1972 at approximately 12:30

P.M., the United States Border Patrol raided defendants’

work crews and apprehended 8 illegal aliens from said

crew; 3 additional members of the work crew who were

8a

believed to be illegal aliens fled by vehicle and escaped

the United States Border Patrol.

15. On October 17, 1972 at approximately 4:30

P.M. plaintiff MIGUEL CANAS spoke with defendant

BICA, requesting jobs for himself and the other named

plaintiff. Defendant BICA refused such request for the

sole reason that he allegedly had no jobs available.

16. On October 20, 1972, plaintiff CANAS again

requested from defendant BICA jobs for himself and his

wife and again was refused solely on grounds that no

jobs were available.

17. On October 23, 1972 at approximately 11:30

A.M. the United States Border Patrol again raided

defendants’ work crews and apprehended 4 illegal aliens

from said crew.

18. Plaintiffs are informed and believe and thereon

allege that defendants presently maintain a steady work

crew of no fewer than 15 workers, at least 10 of whom

are illegal aliens and that defendants know of such

illegal alien status. Said illegal aliens presently employed

by defendants, all Spanish-speaking males, are visibly

recent arrivals from Mexico by virtue of their dress,

habits and language, and seek employment from

defendants under conditions which put defendants or

other employers on notice that said aliens are not

entitled to employment by reason of their illegal status.

19. Defendants can, by simple request for produc-

tion of documents on or after employment, ascertain

with veasonable certainty that such prospective em-

ployees are illegally present in this country and have no

night to work for defendants, but defendants wilfully

fail and refuse to do so.

20. Plaintiffs are informed and believe and therefore

allege that defendants’ employment of illegal aliens at

9a

all times mentioned herein has had the effect of

displacing farm workers legally resident in the United

States inasmuch as the supply of qualified job

applicants for farm work in the Santa Maria Valley area

exceeds the employers’ den.and for farm workers.

21. Plaintiffs are informed and believe and therefore

allege that during the times herein mentioned de-

fendants wilfully or knowingly, directly or indirectly,

induced the illegal entry into the United States of aliens

in violation of the laws of the United States and

California by offering employment without securing

proof that such aliens are entitled to legal presence in

the United States.

22. Plaintiffs are informed and believe and therefore

allege that during the times mentioned herein de-

fendants wilfully or knowingly, directly or indirectly,

took certain measures and initiated certain acts to

shield said illegal aliens from detection by the United

States Border Patrol. Additionally, defendants refused

to assist the United States Border Patrol authorities in

apprehending those illegal aliens fleeing from de-

fendants’ work crews upon observing the approach of

the United States Border Patrol on the occasions

described herein.

23. Plaintiffs are informed and believe and therefore

allege that the United States Border Patrol of the

Immigration and Naturalization Service is presently

doing everything within its capacity and its legal powers

to apprehend illegal aliens employed by defendants and

other employers in the area and to transport said aliens

out of the country, but that defendants continue to

employ illegal aliens at will.

24. As a direct and proximate result of defendants’

wrongful acts, the plaintiffs have been damaged by loss

10a

of their employment with defendants in the amount of

$20.00 per day from the date of defendants’ denial of

employment to a time presently unascertainable, and

plaintiffs pray for leave to amend this complaint at

such time as such information beccmes available to

them. Plaintiff's damages up to the date of filing this

action are in a sum of no less than $1,800.00.

25. Defendants’ unfair and unlawful actions have

caused and continue to cause serious, substantial,

permanent and irreparable harm to the plaintiffs in that

they have unfairly and unlawfully denied employment

to Santa Maria Valley farm workers, compel farm

worker families to be dependent unnecessarily on public

assistance, and unfairly and unlawfully suppress their

wages and working conditions.

26. Unless restrained by this Court, defendants

threaten to employ illegal aliens in the future to the

irreparable injury of plaintiffs and their families.

Plaintiffs have no adequate remedy at law for said

injuries in that defendants’ conduct will constitute a

continuing hardship, thereby depriving plaintiffs of the

very necessities of life owing to their loss of income

from wages.

SECOND CAUSE OF ACTION (Unfair Competition)

27. Plaintiffs refer to and incorporate by reference

herein Paragraphs | through 26 inclusive of the First

Cause of Action.

28. California Civil Code § 3369 permits any member

of the general public to bring suit for injunctive relief

and damages against any person who engages in any

unfair or unlawful business practice.

29. The acts of defendants as herein alleged were

and are designed and do in fact cause unfair competition to

plaintiffs who are all underemployed ar unemployed as

the result of defendants’ acts; defendants’ acts further

cause unfair competition to the general public and to

every California agricultural employer who complies

with applicable United States and California law in

regard to hiring practices.

30. Defendants at all times herein alleged have

fostered, encouraged, aided and abetted unlawful

competition with domestic farm workers, including the

plaintiffs by employing illegal aliens and thus creating

unemployment and underemployment among lawfully

residing domestic farm workers and thereby depressing

wages and working conditions in the Santa Maria

Valley.

31. Defendants through their agents, illegal alien

employees, unfairly and unlawfully have competed with

domestic farm workers including plaintiffs.

32. United States Immigration and Naturalization

Service statistics during 1971 indicate that 420,000

illegal aliens, primarily Mexican citizens seeking farm

labor employment, were apprehended by the United

States Border Patrol. Federal labor authorities estimate

that for every illegal alien who is apprehended, two

enter the country and leave undetected. Thus, in any

given year, over one million illegal aliens are employed

primarily in the United States farm labor, or approxi-

mately 20 per cent of the primary agricultural work

force. Moreover, the percentage of illegal aliens

employed by any individual employer is directly related

to the conditions of employment offered by that

employer: the worse the working conditions, the greater

the number of illegal aliens.

12a

33. The employment of illegal alien labor by

defendants and other employers creates an onerous

economic effect upon the Santa Maria Valley area.

Plaintiffs are informed and believe and therefore allege

that during the past fiscal year approximately 200 local

farm worker fathers were underemployed or un-

employed and receiving consequent public assistance

owing to the employment of an estimated minimum of

400 illegal aliens in the area at a minimum cost to local

and state taxpayers in a sum in excess of $256,000.00.

34. Plaintiffs are informed and believe and therefore

allege that local lawfully resident farm workers would

have earned additional wages in a sum of not less than

$800,000.00 during the last fiscal year through farm

labor employment but for the wrongful acts of

defendants and others in employing an estimated

minimum of 400 illegal aliens at an average of an

estimated minimum 4 months. Moreover, virtually all of

the wages earned by illegal aliens while employed in

this country are sent or taken outside the United

States, primarily to Mexico, and spent there. The

employment of illegal aliens by defendants and others

in the Santa Maria Valley, therefore, results in the

financial loss to local tax payers in excess of one

million dollars annually by virtue of wages drained from

the local area and welfare payments made to displaced

lawfully residing local workers.

WHEREFORE, plaintiffs pray for the following

relief:

1. For an order temporarily and permanently

restraining the defendants, their representatives and

employees and all persons acting in concert or

participating with them from engaging in or performing,

directly or indirectly, any and all of the following acts:

l3a

From failing or refusing to hire each plaintiff herein

for regular employment unless defendants make a

showing that all of defendants’ available job positions

are filled by employees who are citizens or lawful

residents of the United States. Such showing shall

consist of a declaration by either defendant attaching a

copy of the evidence of citizenship or lawful residence

of each such employee, to be filed in this Court within

24 hours from the time of service of this order upon

either defendant herein.

2. For an order preliminarily and permanently

enjoining the defendants, their officers, agents, em-

ployees and assigns,

(a) from employing in agriculture positions, with

actual or constructive knowledge, directly or indirectly,

any non-citizen not legally entitled to employment in

the United States;

(b) from failing to obtain reasonable proof of a farm

worker applicant’s lawful residence status in the United

States as a condition precedent to any employment as

evidenced by documentation issued by the United

States Immigration and Naturalization Services or other

duly authorized federal agency; and

(c) from failing or refusing to make such docu-

mentation of an employee’s lawful residence available

to the United States Border Patrol authorities, plaintiffs

or their attorneys for inspection upon reasonable

notice.

3. For actual damages in the amount set forth in the

complaint; and

4. For exemplary damages in the amount of

$5,000.00 for each named plaintiff; and

14a

5. For costs of suit, attorney’s fees, and such other

relief as the Court deems proper.

DATED: October 24, 1972.

/s/ Burton D. Fretz

BURTON D. FRETZ

Attorney for Plaintiffs

VERIFICATION

STATE OF CALIFORNIA

Ss.

COUNTY OF SANTA BARBARA

[ am one of the Plaintiffs in the above entitled

action; I have read the foregoing Complaint for

Damages and Injunctive Relief and know the contents

thereof; and I certify that the same is true of my own

knowledge, except as to those matters which are therein

Stated upon my information or belief; and as to those

matters I believe it to be true.

I, MIGUEL CANAS certify (or declare) under

penalty of perjury that the foregoing is true and

correct.

Executed on October 24, 1972 at Santa Maria,

California.

/s/ Miguel Canas

MIGUEL CANAS

[Certificate of service omitted in printing. ]

15a

LAW OFFICES

DANIEL J. KIRK

319 EAST COOK STREET

POST OFFICE BOX 1210

SANTA MARIA, CALIFORNIA 93454

(805) 922-2116

FILED

SUPERIOR COURT

NOV 22 1972

L.E. LEWIS, County Clerk

By S.R. LLAMAS

Deputy Clerk

IN THE SUPERIOR COURT OF THE STATE

OF CALIFORNIA IN AND FOR THE COUNTY

OF SANTA BARBARA

-000-

LEONOR ALBERTI DE CANAS and)

MIGUEL CANAS, )

) No. SM 11789

Plaintiffs, )

VS. ) DEMURRER TO

) COMPLAINT

ANTHONY G. BICA, JUAN SILVA, )

et al

——"

Defendants.

Comes now the Defendants, ANTHONY G. BICA

and JUAN SILVA, and demur to Plaintiffs’ Complaint

herein as follows:

I

The First and Second Causes of Action of Plaintiffs’

Complaint do not state facts sufficient to constitute a

cause of action against Defendants.

16a

II

The Court has no jurisdiction of the subject of the

First Cause of Action alleged in Plaintiffs’ Complaint.

DATED: November 22, 1972

Law Offices, DANIEL J. KIRK

By /s/ Robert Trapp, Jr.

Attorney for Defendants

[Certificate of service omitted in printing. ]

IN THE SUPERIOR COURT OF THE STATE

OF CALIFORNIA IN AND FOR THE COUNTY

OF SANTA BARBARA

LEONOR CANAS, et al., ) No.SM 11789

)

Plaintiffs, ) RULING ON DEMURRER

) AND ORDER VACATING

VS. ) NOTICE OF INTENDED

) DECISION IN RE

ANTHONY G. BICA, et al.,) PRELIMINARY

) INJUNCTION

Defendants. )

The defendants have filed a demurrer to the

Complaint on the ground that it does not state facts

sufficient to constitute a cause of action.

Prior to the hearing on the demurrer, there was a

hearing upon the plaintiffs’ request for a preliminary

injunction, and oral and documentary evidence was

17a

introduced. After completion of the hearing (extending

Over several days), and after considering the points and

authorities submitted by the respective parties, it was

announced in open court that I intended to grant the

preliminary injunction, and requested a form of

preliminary injunction to be presented.

Aftez reconsideration of the points and authorities

submitted on both the demurrer, and the request for a

preliminary injunction,

IT IS HEREBY ORDERED that:

(1) The Notice of Intended Decision is vacated and

set aside, and the request for a preliminary injunction is

hereby denied.

(2) The demurrer to the Complaint is sustained,

without leave to amend, and the action is dismissed.

Counsel for defendants shall prepare and serve an

order in accordance with the foregoing.

DATED February 14, 1973.

/s/ Marion A. Smith

Judge of the Superior Court

MEMORANDUM

Labor Code 2805

Under the authorities submitted, I feel compelled,

reluctantly, to find that Labor Code 2805 is unconsti-

tutional, on the ground that (1) It encroaches upon,

and interferes with, a comprehensive regulatory scheme

enacted by Congress in the exercise of its exclusive

power over immigration, and (2) violates the equal

18a

protection clause of the 14th Amendment to the U.S.

Constitution, as set forth in the leading case of Purdy &

Fitzpatrick vs. California, 71 Cal (2) 566. See also

Cobos vs. Mello-Dy Ranch, 20 CA (3) 947; and

Memorandum of Opinion in the case of Dolores

Canning Co., Inc. vs. George W. Milias, etc., Case No.

016-928, Los Angeles Superior Court, which latter case

holds Labor Code 2805 to be unconstitutional under

Purdy, and that as a criminal statute it is too vague and

uncertain for enforcement. As pointed out in Dolores,

the statute forbids hiring of an “alien who is not

entitled to lawful residence in the United States,” and

under the U.S. Immigration laws, there are many such

aliens who may work in the United States, under

certain classifications, and Labor Code 2805 is in direct

conflict with Federal Law.

Civil Code 3369

Civil Code 3369 provides that (1) “Neither specific

or preventive relief can be granted to enforce a penalty

or forfeiture in any case, nor to enforce a penal law,

except in case of a nuisance or unfair competition. (2)

Any person performing or proposing to perform an act

of unfair competition within this state may be enjoined

in any court of competent jurisdiction. (3) As used in

this section, unfair competition shall mean and include

unlawful, unfair or fraudulent practice...”

In the case of Diaz vs. Kay-Dix Ranch, 9 CA (3) 588,

the court documents in detail the plight of the migrant

farm worker, and the adverse effect upon his life and

working conditions resulting from the employment of

19a

Mexican Nationals illegally entering this country and

state. Nevertheless, the court upheld the action of the

lower court in sustaining a demurrer without leave to

amend, and dismissal of the action. The court there

pointed the finger at the Federal Government as being

respondible for this condition, and after considering the

various factors, pro and con, as to the granting of an

injunction, said, “A third factor, the comparative

efficacy of federal action, tips the scales against the

relief...It is more orderly, more effectual, less

burdensome to the affected interests, that the national

government redeem its commitment. Thus the court of

equity withholds its aid.” The court further mentions,

but does not pass on the questions of encroachment

upon immigration regulation exclusively reserved to the

Federal Government; Federal preemption; violation of

civil rights legislation.

In Diaz vs. Kay-Dix Ranch, an injunction was

specifically requested under Civil Code 3369, and the

common law right to pursue a lawful occupation, the

same as plaintiff does in this case. In the case of

Barguis vs. Merchants Collection Assn., 7 Cal (3) 94,

the Supreme Court hints that except for “‘considera-

tions of federalism” the alleged hiring of illegal aliens

could constitute an “unlawful... business practice

under Section 3369.” Whether or not the Supreme

Court meant that relief could have been granted in Diaz

under Section 3369, if the court so elected, or that

“considerations of federalism” precluded it, is not clear.

Since it has been determined above that Labor Code

2805 is unconstitutional, it does not seem reasonable

that the same exercise of power by the court under the

guise of injunctive relief pursuant to CC 3369 is any

20a

mere immune to attack, and for that reason any

injunction granted under CC 3369 would be unconstitu-

tional as violating the 14th Amendment (equal

protection) and encroaching into a field preempted by

the Federal Government, under the authority of Purdy

& Fitzpatrick.

Damages

As to the action for damages, the question is perhaps

more difficult. Except for Labor Code 2805, there is no

common law remedy under the facts of this case. See

Cobos vs. Mello-Dy Ranch, 20 CA (3) 947, and Larez

vs. Aberti, 23 CA (3) 217, at page 226.

Since Labor Code 2805 is held to be unconstitu-

tional, it would seem that the action for damages based

solely thereon, would also fall.

Also, see Cobos vs. Mello-Dy Ranch (Supra) at page

951, which indicates that the “problems of enforce-

ment, so well pointed out in Diaz, exist at least in

equal degree in the enforcement of the federal act by

state court intervention through awarding of damages,

both compensatory and punitive...”

Admittedly, Larez refers to Labor Code 2805 (passed

after the lower court decision) as providing a remedy,

but it does not pass upon the constitutionality of that

statute.

Conclusion

I am fully cognizant of the adverse effect that the

hiring of illegal aliens has upon the migrant farm

aeete en +

ee ——

2la

workers, and upon the tax payer through increased

welfare costs. After hearing the evidence on the

preliminary injunction, it is reasonably certain that

plaintiffs could sustain the factual allegations of their

complaint. The need for a remedy is clearly pointed out

in Diaz. However, until the Supreme Court determines

the question, I feel powerless to supply such remedy,

and through the rulings today, the question can be

expeditiously presented and determined.

/s/ Marion A. Smith

Judge of the Superior Court