HARTIGAN, Circuit Judge.
The plaintiff in its amended complaint alleges six causes of action against the City of Providence and certain officials thereof. The complaint concerns the exhibition in the City of Providence of the motion pictures entitled “And God Created Woman” and “Lady Chatterley’s Lover”. This case is before us as a district court of three judges under 28 U.S.C. § 2281 following the plaintiff’s application for an interlocutory injunction based on the first three causes of its complaint which concerned “And God Created Woman” 1 and the defendants’ motion to dismiss the entire complaint. No answer was filed by the defendants, and the only evidence before us was presented by the plaintiff in support of its application for an interlocutory injunction.
The plaintiff is a New York corporation owning the exhibition rights to the motion pictures “And God Created Woman” and “Lady Chatterley’s Lover”. On October 23, 1957, the plaintiff entered into contracts with Thayer Amusement Company and Castle Enterprises, Inc., both Rhode Island corporations, for the simultaneous exhibition of the film “And God Created Woman”. These contracts did not set forth any specific date upon which this picture would be shown, the contract providing that the plaintiff shall notify the exhibitor of the date when said motion picture would be available for exhibition by the exhibitor.
General Laws of Rhode Island 1956, § 5-22-4 in substance prohibits any theatrical performance without a license from the town council of the town in which such performance is sought to be given. Sec. 169 of Chapter 2721, Public Laws of Rhode Island 1951, provides that the bureau of licenses of the City of Providence shall have authority for the issuance of licenses as may be prescribed by law. There was testimony by a member of the bureau of licenses that the bureau had no right to delegate to the amusement inspector its authority to determine whether or not a license would be granted. Sec. 166 of said Chapter 2721 provides that the bureau of licenses shall require an inspection, investigation and report by the police department on the application for any license.
There are two types of licenses which are issued by the Providence bureau of licenses for the showing of motion pictures. One is for Sunday exhibitions as provided under § 5-22-8 of the Rhode Island General Laws 1956, and the other is for weekday exhibitions under § 5-22-5. In order to facilitate the issuance of licenses the evidence disclosed that applications are signed in blank by the various theater managers. These applications are collected by a police lieutenant who is also the amusement inspector of the City of Providence. Prior to the actual performance the theater managers inform the amusement inspector of the names of the pictures which they intend to show on the following Sunday and the weekdays thereafter. The name of the picture to be shown on Sunday is then placed on the Sunday application but it does not appear on the application for the weekday license. The names of the pictures do not appear on either of the licenses.
Plaintiff introduced evidence showing that the amusement inspector after viewing the film “And God Created Woman” stated he would under no circumstances approve the picture. No evidence was presented that the exhibitors made any other attempt to apply to the bureau of licenses for a license to exhibit this particular motion picture. The customary practice appears to be for the theater manager to inform the amusement inspector on the Friday preceding the week during which a particular picture is to be shown the name of that picture in order that it may be placed on the application for Sunday licenses. In fact, plaintiff’s witness, the manager of the Avon Theater, which is operated by the Thayer [459]*459Amusement Company, testified that he did not consider that there was an application pending for a particular picture until he had informed the amusement inspector of the name of the picture to be shown. In the instant case there was no evidence presented by the plaintiff that the amusement inspector had been informed that “And God Created Woman” was going to be shown by an exhibitor at any particular time. Consequently there has never been an application made for a license to show this particular picture.
Thayer Amusement Corp. v. Moulton, 1939, 63 R.I. 182, 185, 7 A.2d 682, 124 A.L.R. 236, which concerned the Rhode Island licensing statute, clearly illustrates the manner in which application may be made to the licensing authorities in order that their denial may become the subject of judicial review. No justification was offered by the plaintiff for the exhibitor’s failure to follow the procedure outlined in the Moulton case.
The principal challenge of the plaintiff is to the constitutionality of the Rhode Island licensing statute. The authority of this court to declare legislation of states to be unconstitutional is granted under 28 U.S.C. § 2281. This section is not “ * * * a measure of broad social policy to be construed with great liberality, but as an enactment technical in the strict sense of the term and to be applied as such.” Phillips v. United States, 1941, 312 U.S. 246, 251, 61 S.Ct. 480, 483, 85 L.Ed. 100; Beal v. Holcombe, 5 Cir., 1951,193 F.2d 384.
Even though a district court has authority to hear and decide a case on its merits, i. e. where the enforcement of an allegedly unconstitutional state statute is concerned, it should not invoke its powers unless those who seek its aid have a cause of action in equity. See Douglas v. City of Jeannette, 1943, 319 U.S. 157, 162, 163, 164, 63 S.Ct. 877, 87 L.Ed. 1324. The power of a court of equity to act is a discretionary one, and where a federal court of equity is asked to interfere with the enforcement of state laws, it should do so only to prevent irreparable injury which is clear and imminent. American Federation of Labor v. Watson, 1946, 327 U.S. 582, 593, 66 S.Ct. 761, 90 L.Ed. 873.
The federal courts will not ordinarily interfere with a proceeding in a state court even if it is alleged that a state statute is unconstitutional. See Douglas v. City of Jeannette, supra, 319 U.S. at page 163, 63 S.Ct. at page 880. But there are circumstances where a three judge court will consider that there is an irreparable injury due to the enforcement of an unconstitutional statute. In Tyson & Brother United Theatre Offices v. Banton, 1927, 273 U.S. 418, 428, 47 S.Ct. 426, 427, 71 L.Ed. 718, it was held that there was equitable jurisdiction where there had been “threats on the part of appellees (state officials in charge of enforcing a state law regulating the charge to be made by ticket brokers to their customers) to enforce the statute against appellant, to forfeit its license, enforce the penalty of its bond and institute criminal prosecutions against appellant, its officers and agents.”
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HARTIGAN, Circuit Judge.
The plaintiff in its amended complaint alleges six causes of action against the City of Providence and certain officials thereof. The complaint concerns the exhibition in the City of Providence of the motion pictures entitled “And God Created Woman” and “Lady Chatterley’s Lover”. This case is before us as a district court of three judges under 28 U.S.C. § 2281 following the plaintiff’s application for an interlocutory injunction based on the first three causes of its complaint which concerned “And God Created Woman” 1 and the defendants’ motion to dismiss the entire complaint. No answer was filed by the defendants, and the only evidence before us was presented by the plaintiff in support of its application for an interlocutory injunction.
The plaintiff is a New York corporation owning the exhibition rights to the motion pictures “And God Created Woman” and “Lady Chatterley’s Lover”. On October 23, 1957, the plaintiff entered into contracts with Thayer Amusement Company and Castle Enterprises, Inc., both Rhode Island corporations, for the simultaneous exhibition of the film “And God Created Woman”. These contracts did not set forth any specific date upon which this picture would be shown, the contract providing that the plaintiff shall notify the exhibitor of the date when said motion picture would be available for exhibition by the exhibitor.
General Laws of Rhode Island 1956, § 5-22-4 in substance prohibits any theatrical performance without a license from the town council of the town in which such performance is sought to be given. Sec. 169 of Chapter 2721, Public Laws of Rhode Island 1951, provides that the bureau of licenses of the City of Providence shall have authority for the issuance of licenses as may be prescribed by law. There was testimony by a member of the bureau of licenses that the bureau had no right to delegate to the amusement inspector its authority to determine whether or not a license would be granted. Sec. 166 of said Chapter 2721 provides that the bureau of licenses shall require an inspection, investigation and report by the police department on the application for any license.
There are two types of licenses which are issued by the Providence bureau of licenses for the showing of motion pictures. One is for Sunday exhibitions as provided under § 5-22-8 of the Rhode Island General Laws 1956, and the other is for weekday exhibitions under § 5-22-5. In order to facilitate the issuance of licenses the evidence disclosed that applications are signed in blank by the various theater managers. These applications are collected by a police lieutenant who is also the amusement inspector of the City of Providence. Prior to the actual performance the theater managers inform the amusement inspector of the names of the pictures which they intend to show on the following Sunday and the weekdays thereafter. The name of the picture to be shown on Sunday is then placed on the Sunday application but it does not appear on the application for the weekday license. The names of the pictures do not appear on either of the licenses.
Plaintiff introduced evidence showing that the amusement inspector after viewing the film “And God Created Woman” stated he would under no circumstances approve the picture. No evidence was presented that the exhibitors made any other attempt to apply to the bureau of licenses for a license to exhibit this particular motion picture. The customary practice appears to be for the theater manager to inform the amusement inspector on the Friday preceding the week during which a particular picture is to be shown the name of that picture in order that it may be placed on the application for Sunday licenses. In fact, plaintiff’s witness, the manager of the Avon Theater, which is operated by the Thayer [459]*459Amusement Company, testified that he did not consider that there was an application pending for a particular picture until he had informed the amusement inspector of the name of the picture to be shown. In the instant case there was no evidence presented by the plaintiff that the amusement inspector had been informed that “And God Created Woman” was going to be shown by an exhibitor at any particular time. Consequently there has never been an application made for a license to show this particular picture.
Thayer Amusement Corp. v. Moulton, 1939, 63 R.I. 182, 185, 7 A.2d 682, 124 A.L.R. 236, which concerned the Rhode Island licensing statute, clearly illustrates the manner in which application may be made to the licensing authorities in order that their denial may become the subject of judicial review. No justification was offered by the plaintiff for the exhibitor’s failure to follow the procedure outlined in the Moulton case.
The principal challenge of the plaintiff is to the constitutionality of the Rhode Island licensing statute. The authority of this court to declare legislation of states to be unconstitutional is granted under 28 U.S.C. § 2281. This section is not “ * * * a measure of broad social policy to be construed with great liberality, but as an enactment technical in the strict sense of the term and to be applied as such.” Phillips v. United States, 1941, 312 U.S. 246, 251, 61 S.Ct. 480, 483, 85 L.Ed. 100; Beal v. Holcombe, 5 Cir., 1951,193 F.2d 384.
Even though a district court has authority to hear and decide a case on its merits, i. e. where the enforcement of an allegedly unconstitutional state statute is concerned, it should not invoke its powers unless those who seek its aid have a cause of action in equity. See Douglas v. City of Jeannette, 1943, 319 U.S. 157, 162, 163, 164, 63 S.Ct. 877, 87 L.Ed. 1324. The power of a court of equity to act is a discretionary one, and where a federal court of equity is asked to interfere with the enforcement of state laws, it should do so only to prevent irreparable injury which is clear and imminent. American Federation of Labor v. Watson, 1946, 327 U.S. 582, 593, 66 S.Ct. 761, 90 L.Ed. 873.
The federal courts will not ordinarily interfere with a proceeding in a state court even if it is alleged that a state statute is unconstitutional. See Douglas v. City of Jeannette, supra, 319 U.S. at page 163, 63 S.Ct. at page 880. But there are circumstances where a three judge court will consider that there is an irreparable injury due to the enforcement of an unconstitutional statute. In Tyson & Brother United Theatre Offices v. Banton, 1927, 273 U.S. 418, 428, 47 S.Ct. 426, 427, 71 L.Ed. 718, it was held that there was equitable jurisdiction where there had been “threats on the part of appellees (state officials in charge of enforcing a state law regulating the charge to be made by ticket brokers to their customers) to enforce the statute against appellant, to forfeit its license, enforce the penalty of its bond and institute criminal prosecutions against appellant, its officers and agents.”
Although in the instant case it is a third party who is allegedly denied the license rather than the plaintiff, the plaintiff’s property rights may still be entitled to protection by a court of equity. See Kessler v. Eldred, 1907, 206 U.S. 285, 27 S.Ct. 611, 51 L.Ed. 1065, where it was held that a court of equity could restrain a defeated plaintiff in an infringement suit from interfering with the business of the successful defendant by threatening to bring infringement suits against his customers. Thus, if the plaintiff in the instant case had proved that his customers (the exhibitors) had been prevented from leasing or induced not to lease plaintiff’s picture because of the defendants’ refusal of a license to these exhibitors, there would seem to be equitable grounds for enjoining the defendants. But here there was no evidence that the exhibitors had been refused a license by the bureau of licenses under color of the allegedly unconstitutional licensing statute.
[460]*460It may be that on application to the bureau of licenses an exhibitor may receive a license for the exhibition of this film. It would be an unwise and injudicious act on our part to hold legislation unconstitutional where the complaining party may not be adversely affected by such legislation. See Bourjois, Inc., v. Chapman, 1937, 301 U.S. 183, 188, 57 S.Ct. 691, 81 L.Ed. 1027.
It is true that where a licensing statute is unconstitutional it may be challenged by a party who has not made application for a license thereunder and who has suffered an irreparable injury due to the operation of such statute. For example, in many of the cases upholding such challenge the aggrieved party had been subjected to prosecution because of the failure to obtain such license. See Staub v. City of Baxley, 1958, 355 U.S. 313, 319, 78 S.Ct. 277, 2 L.Ed.2d 302; Lovell v. City of Griffin, 1938, 303 U.S. 444, 452, 453, 58 S.Ct. 666, 82 L.Ed. 949; Smith v. Cahoon, 1931, 283 U.S. 553, 562, 51 S.Ct. 582, 75 L.Ed. 1264; Russo v. Reed, D.C.D.Me.1950, 93 F.Supp. 554. Such a situation is not present in the instant case.
Since the plaintiff has not presented evidence justifying the intervention of a court of equity, its motion for an interlocutory injunction is herewith denied and dismissed. In view of this disposition of the case it is unnecessary for us to consider the other issues raised in the plaintiff’s motion for an interlocutory injunction.
Because the plaintiff presented evidence with regard to the first three causes of action we must treat the defendants’ motion to dismiss, which in part was based on the alleged failure of the plaintiff to state a claim upon which relief could be granted, as a motion for summary judgment. F.R.Civ.P. 12(b) and 56, 28 U.S.C. Judgment, therefore, will be entered for the defendants on the three causes of action relating to the picture “And God Created Woman”. As the plaintiff’s complaint insofar as the three causes of action relating to the picture “Lady Chatterley’s Lover” does state a claim upon which relief can be granted and as there is no failure to join indispensable parties, the defendants' motion to dismiss the complaint insofar as these three causes of action are concerned is denied.
MAGRUDER, Circuit Judge, dissents from the opinion and judgment of the Court and reserves the right to file a dissenting memorandum at a later date.