1. A question of jurisdiction necessarily presented by the
record must be decided, although not raised by the parties. P.
282 U. S.
13.
2. Decisions of the Court require the following conclusions as
to the purpose and effect of Jud.Code, § 266, as amended:
(a) In its original form, the statute sought to make
interference by interlocutory injunction with the enforcement of
state legislation, upon the ground of unconstitutionality, a matter
for the adequate hearing and full deliberation which the presence
of a court of three judges, as therein provided, was likely to
secure, and to minimize the delay incident to review upon appeal of
orders granting or denying interlocutory injunctions in this grave
class of cases. P.
282 U. S.
14.
(b) These purposes were not altered by the amendment of February
13, 1925, (43 Stat. 938), by which the provision for the presence
of three judges was made to apply also to the final hearing in the
district court, and by which final decrees granting or denying
permanent injunctions in such cases were also made appealable
directly to this Court.
Id.
(c) The statute applies only where there is a substantial claim
of invalidity under the federal Constitution and where an
application for an interlocutory injunction, for the purposes
contemplated by the statute, is made and pressed. P.
282 U.S. 15.
(d) If an interlocutory injunction is not sought by the
plaintiff, a single judge may hear and determine the case, and an
appeal from the final decree will lie to the circuit court of
appeals under Jud.Code, 128.
Id.
Page 282 U. S. 11
(e) If an application for an interlocutory injunction is made
and pressed to restrain the enforcement of a state statute, or of
an administrative order made pursuant to a state statute, upon the
ground that such enforcement would be in violation of the federal
Constitution, a single judge has no jurisdiction to entertain a
motion to dismiss the bill on the merits. P.
282 U.S. 15.
(f) In such case, the authority of the district judge is
strictly limited to granting, upon proper cause being shown, a
temporary restraining order to be effective only pending the
determination of the application for an interlocutory injunction.
Upon making such an order, it is his duty immediately to call two
other judges, as the statute directs, to assist him in hearing and
determining that application.
Id.
(g) If a single judge, exceeding this jurisdiction, undertakes
to enter an order granting an interlocutory injunction or a final
decree, either dismissing the bill on the merits or granting a
permanent injunction, no appeal lies from such an order or decree
to this Court, or to the circuit court of appeals.
Id.
(h) Where a court of three judges should have been convened, and
was not, this Court may issue a writ of mandamus to vacate the
order or decree entered by the district judge and directing him, or
such other judge as may entertain the proceeding, to call to his
aid two other judges for the hearing and determination of the
application for an interlocutory injunction. P.
282 U. S.
16.
3. In a case within Jud.Code, § 266, the district judge, on
granting a temporary restraining order, failed to call two other
judges, but permitted the order to operate as an interlocutory
injunction for several months until he dismissed the bill on the
merits.
Held:
(a) That the decree dismissing the bill was without
jurisdiction, and that an appeal from it to the circuit court of
appeals was without jurisdiction. P.
282 U. S.
16.
(b) Consent of the parties could give no validity to the decree
or jurisdiction over the appeal. P.
282 U. S.
18.
(c) Application for a mandamus to vacate the decree and to
require the district judge to call in two other judges to hear the
application for preliminary injunction need not be made, since the
district judge may proceed to take the action which the writ, if
issued, would require.
Id.
4. When it appears, on an appeal from a decree of the circuit
court of appeals, that the latter court has acted without
jurisdiction in entertaining the appeal from the district court,
the appropriate action of this Court is to reverse the decree of
the circuit court of
Page 282 U. S. 12
appeals to that court for want of jurisdiction. P.
282 U. S.
18.
30 F.2d 322 reversed.
Appeal from a decree of the circuit court of appeals which
reversed a final decree of the district court, 27 F.2d 1005,
dismissing the bill in a suit brought by the appellee to restrain
the enforcement of an Illinois statute providing for the collection
of a minimum franchise tax.
MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court.
This suit was brought on July 21, 1927, by St. Louis
Southwestern Railway Company to restrain the enforcement of a
statute of the state of Illinois (General Corporation Act, § 107)
providing for the payment of a minimum franchise tax upon the
ground that the statute, as applied to the complainant, violated
the commerce clause and the due process and equal protection
clauses of the federal Constitution. The bill of complaint prayed
for both a preliminary and a permanent injunction against the
defendant, Secretary of Illinois, from instituting any proceedings
to assess the tax or to enforce any of the prohibitions or
penalties prescribed in case of refusal to pay.
On July 22, 1927, the complainant made a motion for a temporary
restraining order in accordance with the prayer of the bill. On the
same day, District Judge FitzHenry entered an order enjoining the
defendant from revoking
Page 282 U. S. 13
the complainant's certificate of authority, from hindering the
complainant in transacting its business in the State of Illinois,
and from taking any steps for the enforcement of penalties pending
the determination of the application for an interlocutory
injunction. While this order was in force, the defendant, on
November 4, 1927, moved to dismiss the bill for want of equity.
This motion was heard and granted by District Judge FitzHenry,
sitting alone, and on June 7, 1928, he entered a decree dismissing
the bill and dissolving the restraining order. 27 F.2d 1005.
On an appeal by the complainant from this decree, the circuit
court of appeals, holding the statute which laid the tax to be
invalid under the federal Constitution, reversed the decree and
remanded the cause with directions to enter a decree in accordance
with the views expressed in its opinion. 30 F.2d 322. A petition
for a rehearing was denied, and from the decree of the circuit
court of appeals, the present appeal is taken.
The question is thus necessarily presented, although not raised
by the parties, with respect to the validity of the decree entered
in the district court, and the jurisdiction of the circuit court of
appeals to entertain the appeal from that decree, in the light of §
266 of the Judicial Code, as amended (U.S.Code, Tit. 28, § 380).
The statute provides that no interlocutory injunction, restraining
the action of any officer of a state in the enforcement of a
statute of the state, or of an order made by an administrative
board or commission pursuant to a state statute, shall be granted
by any Justice of the Supreme Court of the United States, or by any
district court, or by any Judge thereof, or by any circuit judge
acting as district judge, upon the ground of the
unconstitutionality of the statute unless the application for the
injunction shall be heard and determined by three judges. When the
application for such an injunction is presented to a justice or
Page 282 U. S. 14
judge, he must immediately call to his assistance two other
judges, as stated, but if he is of opinion that irreparable loss
may otherwise result to the complainant, he may grant a temporary
restraining order which is to remain in force only until the
hearing and determination of the application for an interlocutory
injunction upon prescribed notice. An appeal may be taken to this
Court from the order granting or denying, after notice and hearing,
an interlocutory injunction in such case. By the amendment of
February 13, 1925 (43 Stat. 938), the provision with respect to the
presence of three judges was made to apply also to the final
hearing in such suit in the district court, and from the final
decree granting or denying a permanent injunction, a direct appeal
lies to this Court.
The decisions of this Court require the following conclusions as
to the purpose and effect of the statute:
First. By the statute in its original form, the
Congress sought to make interference by interlocutory injunction
with the enforcement of state legislation a matter for the adequate
hearing and full deliberation which the presence of a court
composed of three judges, as provided by the statute, was likely to
secure.
Cumberland Telephone & Telegraph Co. v. Public
Service Commission, 260 U. S. 212,
260 U. S. 216.
The gravity of this class of cases was recognized, and it was
sought to minimize the delay incident to a review upon appeal from
an order granting or denying an interlocutory injunction.
Chicago Great Western Railway Co. v. Kendall, 266 U. S.
94,
266 U. S. 97;
Moore v. Fidelity & Deposit Company, 272 U.
S. 317,
272 U. S. 321;
Ex parte Collins, 277 U. S. 565,
277 U. S. 567.
These purposes were not altered by the amendment of the statute,
which was designed to end the anomalous situation in which a single
judge might reconsider and decide questions already passed upon by
three judges on the application for an interlocutory injunction.
Patterson v. Mobile Gas
Company,
Page 282 U. S. 15
271 U. S. 131,
271 U. S. 136;
Smith v. Wilson, 273 U. S. 388,
273 U. S.
390-391.
Second. The statute applies only where there is a
substantial claim of invalidity under the federal Constitution and
where an application for an interlocutory injunction, for the
purposes contemplated by the statute, is made and pressed.
Ex
parte Buder, 271 U. S. 461,
271 U. S. 463,
271 U. S. 467;
Ex parte Hobbs, 280 U. S. 168,
280 U. S. 172.
The complainant has an election. If an interlocutory injunction is
not sought, a single judge may hear and determine the case, and an
appeal from the final decree will lie to the circuit court of
appeals. Judicial Code, § 128 (U.S.Code, Tit. 28, § 225);
Ex
parte Buder, supra; Moore v. Fidelity & Deposit Company, supra;
Smith v. Wilson, supra.
Third. If an application for an interlocutory
injunction is made and pressed to restrain the enforcement of a
state statute, or of an administrative order made pursuant to a
state statute, upon the ground that such enforcement would be in
violation of the federal Constitution, a single judge has no
jurisdiction to entertain a motion to dismiss the bill on the
merits. He is as much without power to dismiss the bill on the
merits as he would be to grant either an interlocutory or a
permanent injunction. His authority is strictly limited to
granting, upon proper cause being shown, a temporary restraining
order to be effective only pending the determination of the
application for an interlocutory injunction. Upon making such an
order, it is his duty immediately to call two other judges, as the
statute directs, to assist him in hearing and determining that
application.
Ex parte Northern Pacific Railway Company,
280 U. S. 142,
280 U. S.
144.
Fourth. If a single judge, thus acting without
jurisdiction, undertakes to enter an interlocutory injunction or a
final decree, either dismissing the bill on the merits or granting
a permanent injunction, no appeal lies from such an order or decree
to this Court, as
Page 282 U. S. 16
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. Nor does an
appeal lie to the circuit court of appeals from an order or decree
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.
Accordingly, where a court of three judges should have been
convened, and was not, this Court may issue a writ of mandamus to
vacate the order or decree entered by the district judge and
directing him, or such other judge as may entertain the proceeding,
to call to his aid two other judges for the hearing and
determination of the application for an interlocutory injunction.
Ex parte Metropolitan Water Company, 220 U.
S. 539.
Ex parte Northern Pacific Railway Company,
supra. * This remedy would
not be available if there were a remedy by appeal.
Ex parte
Harding, 219 U. S. 363;
Ex parte Metropolitan Water Company, supra; Ex parte Park
Square Automobile Station, 244 U. S. 412,
244 U. S. 415;
Ex parte Slater, 246 U. S. 128;
Ex parte Tiffany, 252 U. S. 32,
252 U. S. 37;
Ex parte Riddle, 255 U. S. 450;
Maryland v. Soper (No. 1), 270 U. S.
9.
Fifth. It follows that, in the present case, no appeal
lay to the circuit court of appeals, and that court should have
dismissed the appeal for want of jurisdiction. The
Page 282 U. S. 17
bill prayed for a preliminary, as well as for a permanent,
injunction. On filing the bill, the complainant at once moved for a
temporary restraining order in accordance with the prayer of the
bill. The order granted by the district judge recited that the
complainant sought a temporary restraining order pending a hearing
on an application for an interlocutory or preliminary injunction,
and the order enjoined the enforcement of a state statute until the
consideration and determination of that application. The
application to restrain the enforcement of the state statute
pending the suit was manifestly not withdrawn, but was continuously
pressed in order to avoid the prohibitions and penalties imposed by
the state law in case the tax in question was not paid. The
district judge, on granting the temporary restraining order, failed
to call in two other judges to aid him in hearing and determining
the application for the interlocutory injunction, and the
restraining order was permitted to operate as an interlocutory
injunction for several months and until the determination of the
motion to dismiss the bill on the merits.
The requirement of the statute has regard to substance, and not
to form. It matters not whether the injunction is called
preliminary or interlocutory, or is styled a temporary restraining
order, if it is granted to restrain the enforcement of state
legislation and is continued in force until the hearing on the
merits, without such restraint pending the suit being made the
subject of consideration and determination by three judges as the
statute requires. The temporary restraining order which the
district judge, acting alone, could grant is only to maintain the
status quo, on proper cause being shown, for such time as
may be necessary to obtain a decision upon the application for an
interlocutory injunction by a court of three judges, which is to be
immediately convened.
Page 282 U. S. 18
As the proceeding in this suit fell within the provision of the
statute, and the district judge had no jurisdiction to hear the
motion to dismiss the bill on the merits, the consent of the
parties could not give validity to the decree or confer
jurisdiction upon the circuit court of appeals to entertain an
appeal therefrom.
United States v. Emholt, 105 U.
S. 414,
105 U. S. 416;
Parker v. Ormsby, 141 U. S. 81,
141 U. S. 86;
Perez v. Fernandez, 202 U. S. 80,
202 U. S. 100;
443 Cans of Frozen Egg Product v. United States,
226 U. S. 172,
226 U. S. 184;
Exporters v. Butterworth-Judson Company, 258 U.
S. 365,
258 U. S. 369.
The remedy by mandamus to vacate the decree and to require the
district judge to call to his assistance two other judges, as
directed by the statute, to hear the application for an
interlocutory injunction is still available. It is not necessary,
however, that formal application should be made for such a writ, as
the district judge may not proceed to take the action which the
writ, if issued, would require.
When it appears, on an appeal to this Court from decree of the
circuit court of appeals, that the latter court has acted without
jurisdiction in entertaining the appeal from the district court,
the appropriate action of this Court is to reverse the decree of
the circuit court of appeals and to remand the case with directions
to dismiss the appeal to that court for want of jurisdiction.
Union & Planters' Bank v. Memphis, 189 U. S.
71,
189 U. S. 73-74;
443 Cans of Frozen Egg Product v. United States, supra;
Carolina Glass Co. v. South Carolina, 240 U.
S. 305,
240 U. S. 318;
City of New York v. Consolidated Gas Company, 253 U.
S. 219,
253 U. S. 221;
The Carlo Poma, 255 U. S. 219,
255 U. S. 221.
Decree reversed and cause remanded to the circuit court of
appeals, with directions to dismiss the appeal to that court for
want of jurisdiction.
* The Act of October 22, 1913, c. 32, 38 Stat. 208, 220
(U.S.Code, Tit. 28, § 47), and § 266 of the Judicial Code
(U.S.Code, Tit. 28, § 380), are
in pari materia
(
Virginian Railway Co. v. United States, 272 U.
S. 658,
272 U. S.
671-672), and this Court may also issue a writ of
mandamus to the district judge to require the performance of the
statutory duty under the former Act.
Ex parte Atlantic Coast
Line R. Co., 279 U.S. 822.
