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The procedure for enjoining orders of the Interstate Commerce Commission has been made applicable by Congress to orders of other administrative agencies. Thus 7 U.S.C. §217 utilizes this procedure in suits to suspend orders of the Secretary of Agriculture under the Packers and Stockyards Act, as does 7 U.S.C. §499k for orders of the Secretary of Agriculture under the Perishable Agriculture Commodities Act. The same procedure governs actions to set aside orders of the United States Maritime Commission under Section 31 of the Shipping Act of 1916, now 46 U.S.C. §830.10 And the procedure is likewise adopted by 47 U.S.C. §402 (a) for suits to set aside certain types of orders of the Federal Communications Commission under the Communications Act of 1934." Other types of orders of the Communications Commission are reviewable by the Court of Appeals for the District of Columbia and by the Supreme Court on certiorari (47 U.S.C. §402 (b)122.) Thus efforts to enjoin these administrative orders require the invocation of a three-judge district court, with $1253 providing a direct appeal to the Supreme Court from a decree granting or denying an interlocutory or permanent injunction.13

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9E.g., Tagg Bros. and Moorhead v. United States, 280 U. S. 420; Morgan v. United States, 298 U. S. 468, 304 U. S. 1, 307 U. S. 183, 313 U. S. 409. California v. United States, 320 U. S. 577.

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11 Rochester Tel. Corp. v. United States, 307 U. S. 125; Federal Communications Commission v. Columbia Broadcasting System, 311 U.S. 132; Columbia Broadcasting System v. United States, 316 U. S. 407.

12 Federal Communications Commission v. Columbia Broadcasting System,

311 U. S. 132.

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The Judicial Conference of the United States has recommended that orders of the Interstate Commerce Commission and other agencies now reviewable by three-judge district courts be reviewed by the courts of appeals, and by the Supreme Court only on certiorari or certificate instead of direct appeal. Bills designed to accomplish these changes have been introduced in the 81st Congress, but have not been reported out of committee as of the time this was written. H.R. 5487, 5488, 81st Cong., July 5, 1949. Similar bills were reported favorably to the 80th Congress in 1948. H. Repts. 1619, 1620, 80th Cong. 2nd Sess. See Hearings before Subcommittee of House Committee on Judiciary on H.R. 1468, 1470 and 2271, 80th Cong. and H.R. 2915 and 2916, 81st Cong.

Considerations applicable to all three-judge court cases. Whether a particular case is one that does or does not fall within the three-judge court requirement is a jurisdictional question, and especially so as it relates to the jurisdiction of the Supreme Court to consider an appeal of the case under §1253. The Court is careful to insist upon full compliance with the statutory requirements in such situations. Thus it has held that, where a three-judge court is necessary, a single judge is without jurisdiction to dismiss the complaint on the merits or to grant or deny an interlocutory or permanent injunction or to do anything else which is not specifically authorized by §2284. Stratton v. St. Louis Southwestern R. Co., 282 U. S. 10, 15. Not even a quorum of two is empowered to do what must be done by three judges (Ayrshire Collieries Corp. v. United States, 331 U. S. 132) although, of course, the decision of three sitting judges may be by a majority of two. If a single judge, acting without jurisdiction, undertakes to enter an order such as one granting a permanent injunction, no appeal lies under §1253 to the Supreme Court inasmuch "as the statute plainly contemplates such a direct appeal only in the case of an order or decree entered by a court composed of three judges in accordance with the statutory requirement." Stratton v. St. Louis Southwestern R. Co., supra, 15-16. Moreover, no appeal lies to a court of appeals from an order thus entered by a district judge without authority, "for to sustain a review upon such an appeal would defeat the purpose of the statute by substituting a decree by a single judge and an appeal to the Circuit Court of Appeals for a decree by three judges and a direct appeal to this court." Id., 16.

When a single judge improperly declines to take steps leading to the convening of a three-judge district court, a party may apply to the Supreme Court pursuant to 28 U.S.C. §1651 for a writ of mandamus requiring the judge to initiate the procedure.

Ex parte Collins, 277 U. S. 565; Stratton v. St. Louis Southwestern R. Co., supra. Like relief may also be had from the Court after a single judge enters an order unauthorized by the strict provisions of $2284. But if, instead, such an order is appealed to a court of appeals, which fails to correct the jurisdictional error, and review is then sought in the Supreme Court of the decision of the court of appeals, the Court will reverse the decree of the court of appeals and remand the case to that court with directions to dismiss the appeal for want of jurisdiction. The void order of the district judge should then be vacated by him and a three-judge court convened. Stratton v. St. Louis Southwestern R. Co., supra. In Query v. United States, 316 U. S. 486, 490-491, three judges signed the judgment but erroneously held that only a single judge had jurisdiction and that the appeal was to the court of appeals. Upon correcting the affirmance of this ruling by the latter court, the Supreme Court ordered the case remanded to the district court "for the entry of a fresh decree" since the time to appeal to the Supreme Court would otherwise have expired.

On the other hand, when a three-judge court is improperly convened and an appeal from its decree is taken directly to the Supreme Court under $1253, the Court has jurisdiction to take whatever action may be appropriate under the circumstances so as to save the appellant his proper remedies. The improper participation of the two additional judges in the district court proceedings does not render the decree void. The order is still "the final order of a district court". Stainback v. Mo Hock Ke Lok Po, 336 U. S. 368, 381. The error only eliminates the jurisdictional basis for a direct appeal to the Supreme Court under §1253. Gully v. Interstate Gas Co., 292 U. S. 16; Oklahoma Gas & Electric Co. v. Oklahoma Packing Co., 292 U. S. 386. Dismissal of the direct appeal by the latter court permits an appeal to a court of appeals if the time therefor has not expired.

Public Service Commission v. Brashear Lines, 312 U. S. 621, 626. In Stainback v. Mo Hock Ke Lok Po, 336 U. S. 368, 380381, a precautionary appeal to a court of appeals taken simultaneously with a direct appeal to the Supreme Court was held to allow review by the court of appeals, and by the Supreme Court on certiorari to that court, upon the dismissal of the direct appeal to the Supreme Court. The Supreme Court may also reverse or vacate the decree and remand the case to the district court for further proceedings by a single judge independently of the three-judge requirement. See Jameson & Co. v. Morgenthau, 307 U. S. 171; International Ladies' Garment Workers' Union v. Donnelly Garment Co., 304 U. S. 243; Oklahoma Gas & Electric Co. v. Oklahoma Packing Co., supra. Exercise of this latter power is often appropriate where the time for an appeal to a court of appeals has expired, especially if such an expiration has occurred in circumstances under which a mere dismissal of the direct appeal to the Court would leave outstanding an injunction against the enforcement of a state

statute.

However, if there is a complete lack of jurisdiction in the district court, whether composed of one or three judges, the Supreme Court has power on a purported appeal under §1253 to reverse the decree of a three-judge court and remand the case with directions to dismiss the complaint for want of jurisdiction. Piedmont & Northern R. Co. v. United States, 280 U. S. 469. This power of the Court exists regardless of whether the three-judge court has entered a judgment for the plaintiff or the defendant. As long as a decree was entered on the merits, the Court has jurisdiction to reverse it and to order a dismissal for want of jurisdiction. See Smallwood v. Gallardo, 275 U. S. 56, 62; Piedmont & Northern R. Co. v. United States, supra,

at 478.

The jurisdiction of the three-judge court, or of the Supreme Court on appeal, may be raised at any point in the proceeding. It may be raised for the first time when the case reaches the Supreme Court. United States v. Griffin, 303 U. S. 226. Or it can be raised by the Court on its own motion. Stratton v. St. Louis Southwestern R. Co., 282 U. S. 10.

C. Decisions of the Court of Claims

Certiorari

In 28 U.S.C. $1255 (1), it is provided that the Supreme Court may review cases in the Court of Claims by "writ of certiorari granted on petition of the United States or the claimant."

The cases over which the Court of Claims has jurisdiction are set forth at 28 U.S.C. §§1491-1505. To the extent that they call for the exercise of judicial power by that court, they are reviewable by the Supreme Court on certiorari under $1255 (1). Two of the specified categories (§§1492, 1493), however, call on the Court of Claims for advisory opinions on matters referred to it by Congress or an executive department, and it is proper to bestow such jurisdiction on the Court of Claims, as distinguished from the district courts and courts of appeals, because the Court of Claims is a legislative rather than a constitutional court. Williams v. United States, 289 U. S. 553. But the Supreme Court's appellate jurisdiction by way of certiorari cannot constitutionally extend to such cases, since the Supreme Court is a constitutional court, the jurisdiction of which is limited to justiciable cases and controversies. Muskrat v. United States, 219 U. S. 346.

Various special statutes have been enacted by Congress from time to time giving power to the Court of Claims to perform certain acts, some judicial in character and others administrative or legislative. See In re Sanborn, 148 U. S. 222; North

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