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California Coop. Canneries, 279 U. S. 553; National Ass'n of Real Estate Boards v. United States, 176 F. 2d 631 (App. D.C.).

Appeals from decisions of three-judge courts

Congress has enacted in 28 U.S.C. $1253 that "except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges." The jurisdiction of the Supreme Court thus depends upon whether the cases must be heard by a three-judge district court. For this reason an understanding of the statutory provisions and the decisions governing three-judge courts is essential.

Three-judge district courts are required to hear suits to restrain the enforcement of state and federal statutes upon grounds of unconstitutionality (28 U.S.C. §§2281-2282), and also suits to enjoin the enforcement of orders of the Interstate Commerce Commission and a few other federal agencies (28 U.S.C. §2325). Such three-judge district courts, which must include at least one circuit judge, are convened pursuant to 28 U.S.C. $2284. The three classes of cases heard by such courts will now be discussed separately.

Suits to enjoin enforcement of state laws. A three-judge court must be convened in an action to secure an "interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes the ground of the unconstitutionality of such statute." 28 U.S.C. §2281.

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A three-judge court is necessary, under this provision, whether an interlocutory or a permanent injunction is sought

in the first instance. The original statute of 1910 (Judicial Code §266, former 28 U.S.C. §380) provided for three judges only for an application for an interlocutory injunction. This anomaly was removed in 1925 (43 Stat. 938) by the addition of a sentence making the requirement of three judges also applicable to the "final hearing in such suit"-but still only when an application for an interlocutory injunction had been "made and pressed." Stratton v. St. Louis S. W. Ry., 282 U. S. 10, 14-15. Not until the 1948 codification of 28 U.S.C. was the statute sensibly changed also "to require a three-judge court in cases where interlocutory injunction is not sought." Reviser's note to 28 U.S.C. (1948) §2281.

Section 2281 applies to attacks upon the constitutionality of state statutes. This has been held to include the provisions of state constitutions (A. F. of L. v. Watson, 327 U. S. 582), but not to extend to "local ordinances or statutes having only local application" (Cleveland v. United States, 323 U. S. 329, 332, and cases cited). The local or non-local nature of the policy embodied in the statute is controlling, not the geographic area in which the defending officer operates; a local official may be performing a function "of statewide concern," and a state official one solely of local interest. Rorick v. Board of Commissioners, 307 U. S. 208, 212-213. The term "state" has been held not to include a territory like Hawaii. Stainback v. Mo Hock Ke Lok Po, 336 U. S. 368; see also as to Puerto Rico, Benedicto v. West India & Panama Tel. Co., 256 Fed. 417 (C.C.A. 1).

The predecessor statute (Judicial Code §266) was amended in 1913 (37 Stat. 1013) so as to reach suits to restrain state officers "in the enforcement or execution of an order made by an administrative board or commission" acting under state statutes. Although the act, read narrowly, might have been construed to encompass only those attacks on agency orders

which were based on the invalidity of the underlying statute, the Court has held a challenge to the constitutionality of the order sufficient to bring the provisions for direct Supreme Court review into play. Oklahoma Gas Co. v. Russell, 261 U. S. 290, 292; Herkness v. Irion, 278 U. S. 92, 93-94; Ex parte Williams, 277 U. S. 267, 271; cf. Jameson & Co. v. Morgenthau, 307 U. S. 171, 173. But a claim that an administrative official, including the governor, is exceeding his legal authority is insufficient in the absence of a challenge to a statute. Phillips v. United States, 312 U. S. 246; cf. Query v. United States, 316 U. S. 486, 490.

The constitutionality of a statute as a whole need not be questioned; it is enough that the validity of a statute as applied in a particular case is challenged. Ex parte Bransford, 310 U. S. 354, 361; cf. Fleming v. Rhodes, 331 U. S. 100, 103-4; DahnkeWalker Co. v. Bondurant, 257 U. S. 282, 288. In the Bransford case the Court declared that "it is necessary to distinguish between a petition for injunction on the ground of the unconstitutionality of a statute as applied, which requires a threejudge court, and a petition which seeks an injunction on the ground of the unconstitutionality of the result obtained by the use of a statute which is not attacked as unconstitutional." And where a complaint does not challenge the constitutionality of a state statute but alleges only that its enforcement would violate a federal statute, the provisions for a three-judge court are inapplicable. Case v. Bowles, 327 U. S. 92, 97.

These lines of distinction are often difficult to apply. They reflect the narrow construction which the Court has often given the three-judge court statutes, because of its reluctance to enlarge its own obligatory jurisdiction and the "serious drain" that "the requirement of three judges, of whom one must be a Justice of this Court or a circuit judge, entails upon the federal judicial system. . ." Phillips v. United States, 312 U. S.

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246, 250. See also Stainback v. Mo Hock Ke Lok Po, 336 U. S. 368, 375-378.

The three-judge court procedure is not properly invoked unless the constitutional question raised is "substantial." Ex parte Poresky, 290 U. S. 30. "The lack of substantiality in a federal question may appear either because it is obviously without merit or because its unsoundness so clearly results from the previous decisions of this Court as to foreclose the subject." California Water Service Co. v. City of Redding, 304 U. S. 252, 255. Some cases have also held that when it is clear that the district court lacks jurisdiction over the case at all, the district judge need not convene a three-judge court. See Osage Indians v. United States, 45 F. Supp. 179 (D.D.C.) which reviews the authorities, which are not entirely uniform.

If the three-judge court, and, on appeal, the Supreme Court, has jurisdiction by reason of the presence of a substantial constitutional question, its jurisdiction "extends to every question of law involved, whether of state or federal law, and enables the court to rest its judgment on the decision of such of the questions as in its opinion effectively dispose of the case." Sterling v. Constantin, 287 U. S. 378, 393-394, and cases cited; California Water Service Co. v. Redding, 304 U. S. 252, 255256; Public Service Commission v. Brashear Lines, 312 U. S. 621, 625. The case last cited holds, however, that after final adjudication by three judges of the right to an injunction on constitutional grounds, certain ancillary matters should be heard by a single judge.

A three-judge court is not convened, of course, to determine the correct construction of a state statute. But the constitutionality of a statute may often depend on how it is construed, and any question of construction will be before the federal court if a constitutional question is properly presented. Where the statute has already been construed by the highest court of

the state, of course, that construction is binding upon both the three-judge district court and the Supreme Court. Saltonstall v. Saltonstall, 276 U. S. 260, 270. But frequently the highest state court has not yet spoken, since so many of the actions. under $2281 are brought soon after the state statute in issue has become effective. There is then always the possibility that the interpretation given the state statute by the federal court will differ from the ultimate authoritative construction by the highest state tribunal. Occasionally an interpretation by a lower state court or by a state officer charged with administering the statute will be available, to which the Supreme Court will give "respectful consideration." As long as an authoritative decision is lacking, however, the three-judge district court and the Supreme Court must formulate their own independent interpretations of the state law. Fox v. Standard Oil Co., 294 U. S. 87, 96-7. In order to lessen the likelihood of conflict in this situation, Congress has provided, in 28 U.S.C. §2284:

"A district court of three judges shall, before final hearing, stay any action pending therein to enjoin, suspend or restrain the enforcement or execution of a State statute or order thereunder, whenever it appears that a State court of competent jurisdiction has stayed proceedings under such statute or order pending the determination in such State court of an action to enforce the same. If the action in the State court is not prosecuted diligently and in good faith, the district court of three judges may vacate its stay after hearing upon ten days' notice served upon the attorney general of the State."

The Supreme Court by decisional rule has added further safeguards against conflict. It has insisted that the decrees of three-judge district courts in this type of case, where the state courts have not yet acted, contain a provision that further relief may be had upon a showing that the state court has construed the statute or determined the question of its validity

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