In a suit in the district court to restrain state officers, by
interlocutory and permanent injunctions, from enforcing an order
affecting railway rates upon the ground that the order conflicts
with the federal Constitution and laws, when the plaintiffs apply
for an interlocutory injunction on that ground and the district
judge grants a temporary restraining order to be effective until
such application shall be determined, it is his duty under
Jud.Code, § 266 immediately to call two other judges, one of whom
shall be a circuit justice or a circuit judge, to assist him in
hearing and determining such application, and neither he nor
another district judge, in the presence of such application and
when it is being pressed, has jurisdiction, sitting alone, to
entertain a motion by the defense to dissolve the temporary
restraining order or a motion by the defense to dismiss the bill,
or jurisdiction to dismiss the bill on the merits. P.
280 U. S.
144.
Petitions for a rule directing the Honorable George M. Bourquin
and the Honorable Charles N. Pray, judges of the district court for
the District of Montana, and the
Page 280 U. S. 143
district court for that District, to show cause why a writ of
mandamus should not issue to set aside a decree dismissing the
petitioners' bill of complaint, and further directing Judge Pray to
call in two other judges to assist him to hear and determine
petitioners' application for an interlocutory injunction. The case
was heard on the original and supplemental petitions and the return
to a rule to show cause issued to the two judges. The rule is made
absolute.
PER CURIAM.
This is a petition for a writ of mandamus. A rule to show cause
was issued, and a return has now been made to the rule. From the
petition and the return, the facts are shown to be as follows: the
Northern Pacific Railway Company and three others brought a suit in
the district court for the District of Montana against the Board of
Railroad Commissioners of that state and others to prevent the
enforcement of a rate order made by the board, the objection urged
against the order being that it was in conflict with the commerce
clause of the Constitution of the United States and with certain
provisions of the commerce laws of Congress. The plaintiffs applied
for a temporary restraining order and for an interlocutory
injunction. District Judge Pray granted a temporary restraining
order which was to continue in force "until the plaintiffs'
application for an interlocutory injunction be heard and determined
by three judges as provided by statute." Afterwards, but before
three judges were assembled to hear the application for an
interlocutory
Page 280 U. S. 144
injunction, District Judge Bourquin, sitting alone, entertained
a motion by the defendants to dissolve the temporary restraining
order, and also a motion to dismiss the bill on the merits. The
plaintiffs objected that a single judge was without authority to
entertain or act upon either motion, but Judge Bourquin overruled
the objection, sustained the motion to dismiss, and entered a final
decree of dismissal. Of course, the decree, if valid, operated not
only as a revocation of the temporary restraining order, but also
as a denial of the application for an interlocutory injunction.
Manifestly the suit was within the terms and spirit of § 380,
Title 28, of the United States Code. When Judge Pray granted a
temporary restraining order to be effective until the application
for an interlocutory injunction should be heard and determined, it
became his duty under that section immediately to call two other
judges, one of whom should be either a circuit justice or a circuit
judge, to assist him in hearing and determining the application for
an interlocutory injunction. Not only so, but the section as
amended by the Act of February 13, 1925, c. 229, 43 Stat. 938,
extends the requirement respecting the presence of three judges to
the final hearing in such a suit. Under our decisions construing
and applying the section, Judge Bourquin, sitting alone, was
without jurisdiction to hear either the motion to dissolve the
temporary restraining order or the motion to dismiss the bill on
the merits. In the presence of the application for an interlocutory
injunction, which was at no time withdrawn but constantly pressed,
a single judge, whether Judge Pray or Judge Bourquin, was as much
without authority to dismiss the bill on the merits as he would be
to grant either an interlocutory or a permanent injunction. Our
decisions leave no doubt on these points.
Ex parte Metropolitan
Water Co. of West Virginia, 220 U. S. 539;
Cumberland Telephone &
Telegraph Co.
Page 280 U. S. 145
v. Louisiana Public Service Commission, 260 U.
S. 212,
260 U. S.
216-217;
Virginian Railway Co. v. United
States, 272 U. S. 658,
272 U. S.
671-673;
Ex parte Atlantic Coast Line R. Co.,
279 U.S. 822.
It follows that the rule against the respondents must be made
absolute with directions to them to vacate the decree of dismissal
entered by Judge Bourquin and to take immediate steps for
assembling a court of three judges to hear and determine the
application for an interlocutory injunction conformably to § 380.
We assume it will not be necessary to issue a formal writ.
Rule made absolute.
