Before Kiley, Circuit Judge, and Parsons and McGARR,
The opinion of the court was delivered by: Parsons, District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiffs bring this action pursuant to Rule 23(a), Federal
Rules of Civil Procedure, Title 28 U.S.C. on their own behalf
and on behalf of all others similarly situated. They charge
that Ill. Rev.Stat., Ch. 38, Secs. 26.1-2(a) and 26.1-3(c) are
unconstitutional and seek a declaratory judgment, temporary
and permanent injunctions, and other relief.
The statutory provisions in question may be described
generally as prohibiting the solicitation by females in
taverns of the purchase of alcoholic or nonalcoholic
beverages, and prohibiting anyone from serving female
employees beverages purchased by male patrons of taverns.
Plaintiffs sue as representatives of several subclasses. The
first are hostesses and entertainers employed on premises
licensed to sell alcoholic liquor by the drink, who have been
arrested and prosecuted for violation of the state statutes
and later discharged. The second are waitresses and bartenders
who serve or sell alcoholic liquor by the drink on licensed
premises and who have been arrested and prosecuted for
violation of the state law and later discharged. And the third
are licensees of premises whose violations of the state
statutes could result in revocations of licenses by the City.
Defendants are the Mayor of Chicago who is the Local Liquor
Control Commissioner of the City; the Superintendent of Police
of Chicago whose officers investigate and make arrests for
violations of the statutes concerned; the Corporation Counsel
for the City of Chicago; the State's Attorney of Cook County,
who presents violations of the statutes and proceedings for
revocation of licenses; and certain police officers who have
made arrests under the statutes.
The defendants moved for dismissal for want of jurisdiction
and, alternatively, applied for the convening of a three-judge
court (28 U.S.C. § 2281). Notice was given to the Governor and
Attorney General of Illinois, required by 28 U.S.C. § 2284. Each
indicated by letter that, for the time being, he will not
intervene nor participate in the matter.
A temporary restraining order was entered by a single judge
of this district. It restrained the Chicago Liquor Commission
from enforcing §§ 26.1-2 and 26.1-3 through revocation
proceedings against any of plaintiffs' establishments. The
order was expanded later to restrain the defendants
Superintendent of Police and policemen from entering
plaintiffs' establishments for purposes of harassment, but
allowed them to enter for the purpose of arrest upon probable
cause to believe that violations of the questioned statutes
This three-judge court was convened to consider the question
of the constitutionality of the statutes. Finding that at
least the tavern owners and licensees have standing to sue and
that jurisdiction exists, we have had the matter of
constitutionality of the statutes on their face briefed and
argued by the parties.
The pertinent provisions of Sections 26.1-2 and 26.1-3 are
"No female, whether employee, entertainer or