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Title II of the Federal Communications Act (15 U.S.C. §29 and 49 U.S.C. §45, as amended by §17 of the Act of June 25, 1948, 62 Stat. 989; and 47 U.S.C. §401(d)); and

4. Where a three-judge district court grants or denies an interlocutory or permanent injunction in any civil action required to be heard by three judges. 28 U.S.C. §1253. Such three-judge courts are required (a) in suits to set aside orders of the Interstate Commerce Commission and a few other federal agencies (28 U.S.C. §2325), (b) in suits to restrain the enforcement of state statutes on grounds of unconstitutionality (28 U.S.C. §2281), and (c) in suits to restrain the enforcement of federal statutes on grounds of unconstitutionality (28 U.S.C. $2282).

These various types of cases will now be considered separately.

Appeals from decisions invalidating Acts of Congress In 28 U.S.C. §1252 it is provided that:

"Any party may appeal to the Supreme Court from an interlocutory or final judgment, decree or order of any court of the United States, the District Court for the Territory of Alaska, the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands and any court of record of Alaska, Hawaii and Puerto Rico, holding an Act of Congress unconstitutional in any civil action, suit, or proceeding to which the United States or any of its agencies, or any officer or employee thereof, as such officer or employee, is a party.

"A party who has received notice of appeal under this section shall take any subsequent appeal or cross appeal to the Supreme Court. All appeals or cross appeals taken to other courts prior to such notice shall be treated as taken directly to the Supreme Court."

There are three prerequisites to the right to appeal under this section.

(1) The case must be a "civil action, suit, or proceeding." This phrase would seem broad enough to cover every conceivable non-criminal action, including suits in admiralty and bankruptcy proceedings. See United States v. Bekins, 304 U. S. 27. It seems clear that the revised provisions were not intended to be limited to those actions encompassed by the Federal Rules of Civil Procedure.

(2) The case must be one "to which the United States or any of its agencies, or any officer or employee thereof, as such officer or employee, is a party." It is not necessary that the Government be one of the original parties to the case. It is enough that "the United States is or has become a party" (International Ladies' Garment Workers' Union v. Donnelly Garment Co., 304 U. S. 243, 249), in time to present evidence and argue on the question of constitutionality in the lower court. This requirement must be read in the light of 28 U.S.C. §2403, which allows the United States to intervene whenever the constitutionality of an Act of Congress is drawn in question.

(3) The lower court judgment must be against the validity of an Act of Congress. If the decision is in favor of the constitutionality of the Act, no direct appeal to the Supreme Court lies under $1252. But the decision adverse to constitutionality may relate only to the application of the statute to particular facts; it need not encompass the challenged statute as a whole. Fleming v. Rhodes, 331 U. S. 100. Moreover, §1252 is not limited, as are §§2281 and 2282, to suits to enjoin the enforcement of a statute on constitutional grounds. The section applies "however the question of constitutionality may arise, provided .. the decision is against the validity of the Act."

Title II of the Federal Communications Act (15 U.S.C. §29 and 49 U.S.C. §45, as amended by §17 of the Act of June 25, 1948, 62 Stat. 989; and 47 U.S.C. §401(d)); and

4. Where a three-judge district court grants or denies an interlocutory or permanent injunction in any civil action required to be heard by three judges. 28 U.S.C. §1253. Such three-judge courts are required (a) in suits to set aside orders of the Interstate Commerce Commission and a few other federal agencies (28 U.S.C. §2325), (b) in suits to restrain the enforcement of state statutes on grounds of unconstitutionality (28 U.S.C. $2281), and (c) in suits to restrain the enforcement of federal statutes on grounds of unconstitutionality (28 U.S.C. $2282).

These various types of cases will now be considered separately.

Appeals from decisions invalidating Acts of Congress In 28 U.S.C. §1252 it is provided that:

"Any party may appeal to the Supreme Court from an interlocutory or final judgment, decree or order of any court of the United States, the District Court for the Territory of Alaska, the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands and any court of record of Alaska, Hawaii and Puerto Rico, holding an Act of Congress unconstitutional in any civil action, suit, or proceeding to which the United States or any of its agencies, or any officer or employee thereof, as such officer or employee, is a party.

"A party who has received notice of appeal under this section shall take any subsequent appeal or cross appeal to the Supreme Court. All appeals or cross appeals taken to other courts prior to such notice shall be treated as taken directly to the Supreme Court."

There are three prerequisites to the right to appeal under this section.

(1) The case must be a "civil action, suit, or proceeding." This phrase would seem broad enough to cover every conceivable non-criminal action, including suits in admiralty and bankruptcy proceedings. See United States v. Bekins, 304 U. S. 27. It seems clear that the revised provisions were not intended to be limited to those actions encompassed by the Federal Rules of Civil Procedure.

(2) The case must be one "to which the United States or any of its agencies, or any officer or employee thereof, as such officer or employee, is a party." It is not necessary that the Government be one of the original parties to the case. It is enough that "the United States is or has become a party" (International Ladies' Garment Workers' Union v. Donnelly Garment Co., 304 U. S. 243, 249), in time to present evidence and argue on the question of constitutionality in the lower court. This requirement must be read in the light of 28 U.S.C. §2403, which allows the United States to intervene whenever the constitutionality of an Act of Congress is drawn in question.

(3) The lower court judgment must be against the validity of an Act of Congress. If the decision is in favor of the constitutionality of the Act, no direct appeal to the Supreme Court lies under $1252. But the decision adverse to constitutionality may relate only to the application of the statute to particular facts; it need not encompass the challenged statute as a whole. Fleming v. Rhodes, 331 U. S. 100. Moreover, §1252 is not limited, as are §§2281 and 2282, to suits to enjoin the enforcement of a statute on constitutional grounds. The section applies "however the question of constitutionality may arise, provided . . . the decision is against the validity of the Act."

International Ladies' Garment Workers' Union v. Donnelly Garment Co., 304 U. S. at 249. Thus §1252 permits direct appeals where enforcement of a statute is denied on constitutional grounds. Fleming v. Rhodes, 331 U. S. 100; Woods v. Miller Co., 333 U. S. 138. And the appeal lies whether the judgment holding the statute unconstitutional is final or interlocutory. Fleming v. Rhodes, supra.

The lower courts whose judgments of unconstitutionality may become subject to appeals under $1252 include all courts created by Congress and not merely the district courts, although so far the section has been given effect only in appeals from district courts. The section applies to judgments of "any court of the United States," a phrase which is defined in 28 U.S.C. §451 to include the courts of appeals, the district courts (including those for the districts of Hawaii and Puerto Rico), the Court of Claims, the Court of Customs and Patent Appeals, the Customs Court and "any court created by Act of Congress the judges of which are entitled to hold office during good behavior." Section 1252 also specifically includes the district courts in Alaska, the Canal Zone and the Virgin Islands and all courts of record in Alaska, Hawaii and Puerto Rico.3

Section 1252 provides that "any party" may appeal from the lower court decision. Since the Government must be a party to the case before an appeal can be taken, the Government

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* The original Reviser's Notes, but not the statute itself nor the apparently revised notes as printed in new 28 U.S.C.A. §1252, also stated that §1252 applies to judgments of unconstitutionality rendered by the Tax Court "as there seems no more reason for intermediate review of Tax Court decisions holding an Act of Congress unconstitutional than in the case of decisions of the Customs Court or Court of Customs and Patent Appeals." But the inclusion of the Tax Court as a "court of the United States" within the contemplation of $1252, without specific legislative language to that effect, is open to grave doubt in view of the reluctance of Congress to label the Tax Court as anything more than "an independent agency in the Executive Branch of the Government." 26 U.S.C. §1100.

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