331 F. Supp. 587

WOODROW WILSON JONES, Chief District Judge
(dissenting).
The majority brushes aside the question of jurisdiction and the advisability of applying the doctrine of abstention, and reaches the merits of this case. It then proceeds to strike down, as violative of the equal protection clause, and in contravention of the Social Security Act and State regulations, a North Carolina rule, decision or regulation relative to payments made to families under the program known as Aid for Families with Dependent Children (AFDC). With such decision, I respectfully dissent.
There is a grave question of jurisdiction involved here. Plaintiffs bottom their action on 42 U.S.C.A., 1983, and 42 U.S.C.A., 601, et seq., and allege jurisdiction exists under 28 U.S.C.A., 1343(3) and 1343(4). The defendants move to dismiss for lack of jurisdiction over the subject matter, and cite and rely upon Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423, and the Second Circuit cases of Eisen v. Eastman, 421 F.2d 560 (2 Cir.1969), and McCall v. Shapiro, 416 F.2d 246 (2 Cir.1969).
Justice Stone’s formulation set forth in Hague v. C.I.O. supra, declaring that the special jurisdictional statute, 28 U. S.C.A., 1343(3) applies “Whenever the right or immunity is one of personal liberty, not dependent for its existence upon the infringement of property rights”, is apparently regarded as the law in the Second Circuit. In Eisen, Judge Friendly, in speaking for the court said: “We therefore hold, although with a good deal less than complete assurance, that Justice Stone’s Hague formulation, generously construed, should continue to be regarded as the law of this circuit. Since the complaint here alleged only the loss of money, the district court’s conclusion that jurisdiction under the Civil Rights Act was not established, although predicated on a wrong reason, was thus correct.” In McCall, the Second Circuit held, with Judge Smith writing the opinion: “It is reasonably clear then that Section 1343(3) and (4) dealing with statutes providing for ‘equal rights’ and ‘civil rights’ were aimed at questions of personal liberty rather than property matters, and that the latter are relegated to the general provisions of 28 U.S.C. § 1331(a).”
Justice Stone’s formulation has been recognized as the law in this circuit. On March 2, 1971, in the case of Garren v. City of Winston-Salem, 439 F.2d 140 (4th Cir.1971), the court declared:
“But we are nevertheless convinced by the heavy weight of the case law that plaintiffs have not stated a claim cognizable under Section 1983 for which jurisdiction is conferred by Section 1343(3). The language of Section 1983 granting redress for the deprivation of any right, privilege or immunity has been consistently construed to embrace only a right, privilege or immunity pertaining to ‘personal liberty, not dependent for its existence upon the infringement of property rights,’ i.e. see Hague v. Committee for Industrial Organization, 307 U.S. 496 at 531, 59 S.Ct. 954 at 971, 83 L.Ed. 1423 (Mr. Justice Stone’s opinion); Weddle v. Director, Patuxent Institution, 436 F.2d 342 (4th Cir.)”
In Weddle, the court held:
“Where, as here, the infringement is one solely of property rights, § 1331 is the applicable jurisdictional statute, and jurisdiction may be sustained only upon satisfaction of the amount in controversy requirement.” See Howard v. Higgins, 379 F.2d 227 (10th Cir.1967); Ream v. Handley, 359 F.2d 728 (7th Cir.1966); Willis v. Reddin, 418 F.2d 702 (9th Cir.1969); Abernathy v. Carpenter, 208 F.Supp. 793 (W.D.Mo.1962), affirmed 373 U.S. 241, 83 S.Ct. 1295, 10 L.Ed.2d 409.
There is indeed a strong argument that the basis of plaintiffs’ complaint is an alleged denial of property rights and therefore not cognizable under Section 1983.
The Social Security Act, 42 U.S.C.A., 601, et seq. is a law of the United States securing to its citizens certain rights, privileges or immunities and a cause of action would accrue in favor of the plaintiffs, if these rights and privileges were deprived under color of any state law, rule or regulation. However, it appears that such claims must meet federal “question” jurisdictional requirements of 28 U.S.C.A., 1331(a). The difference between the actual payment and the demands of the plaintiffs is only a few dollars per month and the total sum of this difference during the dependency of the minor plaintiffs would not equal the required jurisdictional amount. The jurisdiction of federal courts is determined by the Congress and not by the personal sympathies of judges.
I am not inadvertent to King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968) and the other eases cited and relied upon by the majority for jurisdictional purposes. While all four cases deal with welfare matters the applicability of the Civil Rights Act was neither challenged nor discussed. King was decided before Eisen and the Second Circuit distinguished the cases. However, in all candor I must admit that an inference may be drawn from these four Supreme Court decisions indicating jurisdiction in the case at bar, so, assuming arguendo, that this court has jurisdiction, we then come face to face with the doctrine of abstention.
The plaintiffs set forth in their brief the four conditions proposed by the American Law Institute which must be fulfilled before the abstention doctrine applies. These conditions are:
“(1) That the issues of state law cannot be satisfactorily determined in the light of the state authorities;
“(2) That abstention from the exercise of federal jurisdiction is warranted either by the likelihood that the necessity for deciding a substantial question of federal constitutional law may thereby be avoided, or by a serious danger of embarrassing the effectuation of state policies by a decision of state law at variance with the view which may ultimately be taken by the state court, or by other circumstances of like character;
“(3) That a plain, speedy and efficient remedy may be had in the courts of such state, and
“(4) That the parties’ claim of federal right, if any, including any issues of fact material thereto, can be adequately protected by review of the state court decision by the Supreme Court of the United States.” ALI Study-1969.
It is apparent to me that this case satisfied all four conditions. The Supreme Court in the case of Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68, recently reversed a three-judge court decision which had proceeded to strike down as unconstitutional certain fishing laws of the State of Alaska. The court declared:
“A state court decision here, however, could conceivably avoid any decision under the Fourteenth Amendment and would avoid any possible irritant in the federal-state relationship. * * * We think the federal court should have stayed its hand while the parties repaired to the state courts for a resolution of their state constitutional questions.”
More recently, the Supreme Court in Department of Social Services of Iowa v. Dimery, 398 U.S. 322, 90 S.Ct. 1871, 26 L.Ed.2d 265 (1970), vacated the judgment and remanded to the district court for reconsideration in light of Reetz v. Bozanich, supra, a decision wherein the district court had declared a regulation of the State of Iowa unconstitutional which restricted eligibility for medical assistance under the AFDC law.
Admittedly, the question involved here has constitutional ramifications for it is difficult to find many legal problems these days which do not. There were constitutional questions involved in Reetz and Dimery — matters of due process and equal protection of the law. But in those cases as in the case at bar, the basic questions were property rights. While these rights and all other basic rights are protected by the Constitution, it does not follow that the federal courts must, or have authority to adjudicate all controversies in the land. If the federal courts attempt to settle all disputes involving aid to dependent children and other welfare matters, there will be no time or room for anything else.
The plaintiffs apparently exhausted their administrative remedies but did not pursue their judicial remedies in state court. The majority recognizes a state law question dealing with property rights, and decides it. There is no reason shown in this record to indicate that the state courts could not adjudicate both the constitutional and state law questions raised in this complaint. I would without hesitation apply the doctrine of abstention, and, as Justice Douglas said in Reetz, let the parties repair to the state courts for a resolution of this matter.
However, if the merits are reached, the case of Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970), is decisive of this controversy. In Dandridge a three-judge court struck down as violative of the equal protection clause, a Maryland plan of aid to dependent children which contained a maximum grant regardless of the number of children in the family. The Supreme Court reversed, saying:
“In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classification made by its laws are imperfect. If the classification has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.’ Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 340, 55 L.Ed. 369.” “ * * * ‘A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.’ McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393.”
Here the plaintiffs contend it unfair and unconstitutional for the State to consider the payment made by the plaintiff, Samuel Davis, for the support of his son, Samuel Davis, Jr., a resource available to the entire Gilliard family. This rule results in a lower payment from AFDC funds to the Gilliard household. The record shows that no objections were made by plaintiffs, Gilliard and Davis, when the decision was made to consider Samuel Davis, Jr., a part of the entire family for the payment of past, present and future hospital and medical bills. But now, to include his support payments as a resource of the entire family, they say, raises serious constitutional questions, requiring the convening of a three-judge court to strike down the practice and regulation. As the court said in Dandridge:
“We do not decide today that the Maryland regulation is wise, that it best fulfills the relevant social and economic objectives that Maryland might ideally espouse, or that a more just and humane system could not be devised. Conflicting claims of morality and intelligence are raised by opponents and proponents of almost every measure, certainly including the one before us. But the intractable economic, social and even philosophical problems presented by public welfare assistance programs are not the business of this Court. The Constitution may impose certain procedural safeguards upon systems of welfare administration, Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287. But the constitution does not empower this court to second-guess state officials charged with the difficult responsibility of allocating limited public welfare funds among the myriad of potential recipients.”
Here there is a “reasonable basis” for the regulation and it can clearly be justified. The need of dependent children is an evergrowing problem and there is a limited amount of funds. There is a legitimate state interest in allocating the available public funds in such a way as to meet the needs of the largest possible number of dependent children and families. The regulation is wholly free of any invidiously discriminatory purpose or effect.
If the merits are reached by this court, Dandridge directs that the action be dismissed.

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