American Flag,[1] void on federal constitutional grounds and a temporary and permanent injunction restraining the respective defendantsthe State of New York, the Sheriff and the District Attorney of Sullivan County and the Police Justice of the Village of Libertyfrom enforcing that statute. He asks for the designation of a three-judge court under 28 U.S.C. §§ 2281 and 2284 to hear his application.
At the time this action was commenced Duncombe had been convicted of an alleged violation of § 1425 by the Police Justice of Liberty, had been sentenced to thirty days in the County Jail and had been fined or penalized $50. He had commenced serving his sentence when this suit was started on March 21, 1967. Two days later, however, he was released on bail pending appealin the state courts.
The action is alleged to arise under the First, Fifth, Ninth and Fourteenth Amendments to the Constitution, 28 U.S. C. § 1343(3) and the Civil Rights Act. 42 U.S.C. § 1983. Duncombe has moved before me in the motion part of the District Court for the designation of a three-judge court pursuant to 28 U.S.C. § 2284, and for preliminary injunctive relief.[2]
*105 The facts on which this application is based, as contained in the papers submitted in support of the application, are not denied and are as follows: Duncombe, a Negro, an honorably discharged veteran and a resident of the State of New York, has been recently employed by the Tony Kastner Ski School in the Village of Liberty, Sullivan County. On March 7 of