The facts, which involve the construction of § 17 of the Act of
June 18, 1910, c. 309, 3 Stat. 539, 557, in regard to the practice
to be pursued in courts of the United States in a case where an
interlocutory injunction is applied for to restrain the
enforcement, operation, or execution of a state statute by
restraining the action of any officer of the state, are stated in
the opinion.
Page 220 U. S. 540
MR. CHIEF JUSTICE WHITE delivered the opinion of the Court.
This is a proceeding in mandamus, in which relief is sought
against a district judge, acting in a certain cause as a circuit
judge for the District of Kansas, and also against the Circuit
Court of the United States for the District of Kansas. To a rule to
show cause, a return has been filed and the Kaw Valley Drainage
District of Wyandotte County, Kansas, has also, by leave, answered
the rule. The matter is now for decision upon a motion to make the
rule absolute.
Summarily stated, the facts bearing upon the issue to be decided
are as follows:
By § 17 of the act creating the Commerce Court and amending the
Act to Regulate Commerce, provision was made as to the practice to
be pursued in courts of the United States in cases where an
interlocutory injunction is applied for to restrain the
enforcement, operation, or execution of any statute of a state by
restraining the action of any officer of such state in the
enforcement or execution of such statute. While proceedings
originally instituted in a state court of Kansas to condemn lands
of the water company and others for the purpose of widening the
Kansas River were pending on appeal in the Circuit Court of Appeals
for the Eighth Circuit, the Legislature of Kansas, on January 28,
1911, enacted a statute which, in effect, authorized a summary
appropriation of the lands affected by the pending condemnation
suits, and directed the bringing by the attorney general of the
state of an action, after such appropriation had been consummated,
against the owners of the lands appropriated,
"to determine the ownership of the property, and to assess the
value thereof and other damages for the taking of such portions of
it as may belong to parties other than the public."
By § 6, it was provided,
Page 220 U. S. 541
among other things, that, upon a failure to satisfy the judgment
rendered,
"the rights of the state to such land shall be divested, and the
possession thereof shall revert to the former adjudicated owners,
in which event compensation shall be awarded for any loss or damage
occasioned by the temporary appropriation, and that the court shall
render judgment therefor. . . ."
A few days after the passage of this statute, the petitioner, a
West Virginia corporation, commenced a suit in the Circuit Court of
the United States for the District of Kansas against the Kaw Valley
Drainage District of Wyandotte County Kansas, and the individuals
composing the board of directors of said drainage district, all
averred to be citizens and residents of the district where the suit
was brought. The bill prayed relief by injunction, temporary and
permanent, restraining the defendants from a threatened taking
possession of the lands of the petitioner under the Act of January
28, 1911, upon the ground that the statute was repugnant to the
Constitution of the United States. Thereafter, on February 8, 1911,
District Judge McPherson, acting as circuit judge, issued a
restraining order in the cause. The attention of the judge was
called by the defendants to the provisions of § 17 of the Act of
Congress heretofore referred to, and request was made that two
other judges, one of whom should be a circuit judge or a justice of
the Supreme Court, should be called to assist in the hearing and
determination of an application which was pending for a temporary
injunction. It was, however, ruled that the provisions of such
section merely deprived a single judge of the power to grant a
temporary injunction, and that a court might be held by one judge
for the purpose of decreeing the assailed statute to be
constitutional, and refusing to enjoin its enforcement. The court
then heard argument, Judge McPherson alone sitting, upon the
constitutionality of the Kansas statute. At the close of the
hearing, counsel for the water company made the objection
theretofore
Page 220 U. S. 542
urged by opposing counsel, that the matter could only be
disposed of by a court consisting of three judges, constituted as
provided in the statute. Judge McPherson adhered, however, to his
former ruling, and on March 6, 1911, a decree was entered, vacating
the temporary restraining order and denying a temporary injunction.
This application for a writ of mandamus was then made.
The right to relief is based upon the contention that, by virtue
of the act of Congress, a single judge was without jurisdiction to
hear and determine the application for a temporary injunction. The
prayer is that an order or rule be issued commanding the annulment
and setting aside of the order of March 6, 1911, vacating the
restraining order, and denying the application for an injunction,
and directing that the application for a temporary injunction be
heard anew before a court consisting of three judges, in conformity
to the act of Congress.
The question for decision is whether, pursuant to the act of
Congress referred to, the circuit court, composed only of one
judge, had power to hear and determine the application for a
temporary injunction in the cause pending in the Circuit Court of
Kansas. The legislation to be considered is § 17 of the Act of June
18, 1910, c. 309, 36 Stat. 557, reading as follows:
"That no interlocutory injunction suspending or restraining the
enforcement, operation, or execution of any statute of a state by
restraining the action of any officer of such state in the
enforcement or execution of such statute shall be issued or granted
by any justice of the Supreme Court, or by any circuit court of the
United States, or by any judge thereof, or by any district judge
acting as circuit judge, upon the ground of the unconstitutionality
of such statute, unless the application for the same shall be
presented to a Justice of the Supreme Court of the United States,
or to a circuit judge, or to a district judge acting as circuit
judge, and shall be heard and determined by
Page 220 U. S. 543
three judges, of whom at least one shall be a justice of the
Supreme Court of the United States or a circuit judge, and the
other two may be either circuit or district judges, and unless the
majority of said three judges shall concur in granting such
application. Whenever such application as aforesaid is presented to
a Justice of the Supreme Court of the United States, or to a judge,
he shall immediately call to his assistance to hear and determine
the application two other judges:
Provided, however, that
one of such three judges shall be a Justice of the Supreme Court of
the United States or a circuit judge. Said application shall not be
heard or determined before at least five days' notice of the
hearing has been given to the governor and to the attorney general
of the state, and to such other persons as may be defendants in the
suit:
Provided, that, if of opinion that irreparable loss
or damage would result to the complainant unless a temporary
restraining order is granted, any Justice of the Supreme Court of
the United States, or any circuit or district judge, may grant such
temporary restraining order at any time before such hearing and
determination of the application for an interlocutory injunction,
but such temporary restraining order shall only remain in force
until the hearing and determination of the application for an
interlocutory injunction upon notice as aforesaid. The hearing upon
such application for an interlocutory injunction shall be given
precedence and shall be in every way expedited, and be assigned for
a hearing at the earliest practicable day after the expiration of
the notice hereinbefore provided for. An appeal may be taken
directly to the Supreme Court of the United States from the order
granting or denying, after notice and hearing, an interlocutory
injunction in such case."
In the opinion delivered by the court below in passing upon the
question of the proper construction of the foregoing section, the
nature of the suit brought by
Page 220 U. S. 544
the water company was thus concisely and accurately stated:
"That these proceedings are for the purpose by injunction of
restraining the enforcement of the state statute, I have no doubt.
It is alleged that such state statute is absolutely void, as being
in conflict with both the state and national Constitutions. The
prayers are in effect that the statute be decreed void. Neither
have I any doubt that the action is to restrain the action of an
officer of the State of Kansas; namely, the governor. This is so
because the state statute in question provides that, when the
governor issues his proclamation, which he has done, he shall at
once take possession of the property, either in person, or he may
designate the officers of the drainage board to take such
possession for him and in his name, but such officers of the
drainage board to act as agents of the governor. Therefore, I am of
the opinion that the congressional statute is directly involved.
And the question remains, shall this Court now halt these
proceedings, or shall other judges be called in to take control of
the cases?"
The suit being of the nature just stated, we are of opinion that
the provisions of the act of Congress which are relied upon applied
to the case, and that, as a result of their application, it
imperatively follows that the hearing and determination of the
request for a temporary injunction should have been had before a
court consisting of three judges, constituted in the mode specified
in the statute.
We say the hearing should have been had as just stated because
it results from the text of the applicable section of the act that
limitations are unequivocally imposed upon the power of the single
justice or judge to act in the character of case to which the
provision refers. They are (a) to receive an application for an
interlocutory injunction in the character of case stated in the
section; (b) within the period specified in the section to grant a
temporary restraining order "if of opinion that irreparable loss or
damage would
Page 220 U. S. 545
result to the complainant unless a temporary restraining order
is granted," and (c) to "immediately call to his assistance to hear
and determine the application (for an interlocutory injunction) two
other judges." It is to the hearing thus provided for that the
notice must relate which is to be given to the governor and to the
attorney general of the state and "such other persons as may be
defendants in the suit." It is the hearing before the court thus
constituted, also, that is required to be expedited, and the appeal
authorized by the section to be taken directly to this Court "from
the order granting or denying, after notice and hearing, an
interlocutory injunction," is manifestly an appeal from the
expedited hearing had before the court consisting of three judges.
We find no expression of or implication anywhere in the section
justifying the assumption that there was a intention on the part of
Congress that the single justice or judge to whom the application
for the interlocutory injunction should be presented need not call
to his assistance two other judges to pass upon the application, in
the event that he was of opinion that the claim of the
unconstitutionality of the statute was untenable. On the contrary,
the statute evidences the purpose of Congress that the application
for the interlocutory injunction should be heard before the
enlarged court, whether the claim of unconstitutionality be or be
not meritorious, as the appeal allowed to this Court is from an
order denying as well as from an order granting an injunction.
Congress having declared that the merits of the application for
an interlocutory injunction, such as that applied for in the case
with which we are concerned, should be considered and determined by
a tribunal consisting of three judges, constituted as provided in
the act, it results that a tribunal not so constituted did not
possess jurisdiction over the subject matter of the right to such
injunction. It follows therefore that, in hearing and determining
the application for the temporary injunction, the single judge
Page 220 U. S. 546
acted without jurisdiction, and that the order entered by him on
March 6, 1911, vacating the restraining order theretofore issued,
and denying the application for an injunction, was void. This being
the case, it necessarily follows that mandamus is the proper
remedy, since the section made no provision for an appeal from an
order made by a single judge denying an interlocutory injunction,
and a right of appeal is not otherwise given by statute.
Ex
Parte Harding, 219 U. S. 363.
While these considerations dispose of the case, we briefly advert
to an insistence made in argument that we should not take
jurisdiction of the merits of the case as made in the circuit
court, and determine whether or not the bill stated a case
entitling to relief. Not being vested with original jurisdiction to
pass upon the question of the validity of the Kansas statute, and
the petitioner being entitled as of right to have the controversy
as to the constitutionality of the statute, presented by its bill
of complaint, passed upon by a tribunal having such original
jurisdiction, it follows that we do not possess a discretion to
grant or refuse the writ, dependent upon our conception as to
whether the Kansas statute is or is not constitutional.
The rule issued on April 10, 1911, must be made absolute, and an
order will be entered that a writ of mandamus issue directing the
Honorable Smith McPherson, as Acting Circuit Judge of the United
States for the District of Kansas, and the Circuit Court of the
United States for the District of Kansas, to annul and set aside
the order of March 6, 1911, vacating the restraining order
theretofore issued on February 8, 1911, and denying the application
for injunction, and that said judge or such other judge of the said
Circuit Court as may hear and determine the application for an
interlocutory injunction call to his assistance two other judges,
as provided by § 17 of chapter 309 of the Act of Congress approved
June 18, 1910.
Rule to show cause made absolute.