Gregg

J. D. Gregg, appellant, owns 115 acres of land within the boundaries of the City of Los Angeles, State of California, from which he proposes to excavate and produce rock, sand and gravel commercially. There are zoning laws of the city affecting and limiting the operation of the business mentioned and, in defined circumstances, a city variance permit may be granted after a public hearing. Gregg’s land lies within the area in which the rock-sand-gravel business is prohibited except through permit, and a permit was regularly issued to him and is presently in effect.

On November 14, 1947, the instant suit in equity was filed in United States district court on behalf of a number of named persons and alleging that all others similarly situated will be injured by Gregg’s proceeding with the said operation, praying that the city action in granting the variance permit be held void, that the city be r¿strained from further action of the kind, and that Gregg, be enjoined from proceeding to take rock, sand and gravel from the premises in suit. A temporary restraint issued against the city' and Gregg made a motion to dissolve it. The motion was denied and an order temporarily enjoining the…

On Petition for Rehearing.

The petition for rehearing is denied.

In disposing of the petition for rehearing, we deem it proper to comment upon the point made in the petition that class suits in California do not bind persons falling within the class who are not and do not make themselves parties to the action or who do not accept benefits of the litigation. We do not base our decision on a contra premise.

It is true that in our written opinion we have stressed the fact that the plaintiffs in the federal case do fall within the class for which the state court case assertedly is maintained; that the attorneys are the same in each case; that the federal case followed soon after the judgment against the plaintiffs in the state case; that the attack upon the constitutionality of the city zoning system is common to both suits.

The combination -of these circumstances, it seems to us, demonstrates that a conflict of holdings as to the legality of the city zoning ordinances may result (and indeed has resulted) in confusion in the administration of enforcing the ordinances. The ordinances cannot be enforced against the will of the plaintiffs in the state case as the state court judgment…