1. Under the provision of the Urgent Deficiencies Act of October
22, 1913, 28 U.S.C. § 47, requiring that an application to enjoin
or set aside any order of the Interstate Commerce Commission be
"heard and determined" by three judges, a judgment based upon a
determination by only two judges is void -- even though all three
judges were present at the hearing and one of them was prevented by
illness from participating in the determination of the case. Pp.
331 U. S.
2. The fact that a prayer for an interlocutory injunction was
not pressed and that the decision was only on an application for a
permanent injunction makes no difference, since the statutory
requirement that three judges hear and determine an application
applies to suits for permanent, as well as interlocutory,
injunctions. Judicial Code § 266 distinguished. Pp. 331 U. S.
Judgment vacated and appeal dismissed.
Two judges of a three-judge court, during the absence of the
third, denied a permanent injunction against enforcement of an
order of the Interstate Commerce Commission. On appeal to this
Court, the judgment is vacated, and the appeal is dismissed. P.
Page 331 U. S. 133
MR. JUSTICE MURPHY delivered the opinion of the Court.
Appellants filed complaints in the United States District Court
for the Southern District of Indiana seeking a temporary stay, an
interlocutory injunction, and a permanent injunction against the
enforcement of an order of the Interstate Commerce Commission,
dated July 9, 1945. This order had been entered in connection with
findings by the Commission that certain railroad tariffs were
unlawful, and that other rates should be prescribed in lieu
thereof. Coal to Beloit, Wis., and Northern Illinois,
The complaints requested that the court convene a specially
constituted court of three judges, as required by the Urgent
Deficiencies Act of October 22, 1913, 38 Stat. 208, 220, 28 U.S.C.
§ 47, to hear the motions "for a temporary or interlocutory
injunction and for final hearing in this proceeding." Circuit Judge
Evans and District
Page 331 U. S. 134
Judge Igoe were then assigned to sit with District Judge
Baltzell to hear and determine these applications, and the cases
were consolidated for all purposes. The applications for a
temporary stay and an interlocutory injunction were assigned for
hearing on January 3, 1946. But, on that day, it appearing that the
Commission had postponed the effective date of its order to April
8, 1946, the court ordered that
"the hearing upon the petitioners' application for an
interlocutory injunction and temporary stay heretofore assigned and
set for January 3, 1946, be, and the same hereby is, continued to
the day of final hearing herein, and that said final hearing shall
be had on March 25, 1946. . . ."
The Commission made a further postponement of the effective date
of its order to July 8, 1946, in order that the carriers subject to
the order might avoid the necessity of preparing and filing new
tariffs prior to the termination of the court proceeding. It also
appeared that the illness of Judge Baltzell made it impossible for
the court to convene as scheduled on March 25. And so that court
reassigned the case for trial on April 22, with Judge Baltzell
being replaced by Circuit Judge Major.
Argument was held on April 22 before Circuit Judges Evans and
Major and District Judge Igoe at the "final hearing upon the
plaintiffs' petitions for a permanent injunction." On June 5, 1946,
findings of fact and conclusions of law were filed and entered
under the signatures of Judges Major and Igoe; the Commission's
order was sustained in all respects, and a judgment was entered
dismissing the complaints. The following notation was made in the
margin of the findings of fact and conclusions of law:
"Judge Evan A. Evans became ill subsequent to the hearing of
these causes, and he is and has been unable to participate in a
determination thereof. The findings of fact, conclusions of law,
and judgment have therefore been entered by the remaining judges of
such court. "
Page 331 U. S. 135
The case was brought here on direct appeal. [Footnote 1
] We are of the opinion that the
District Court's judgment was void, only two of the three judges
having participated in the determination of the case. We
accordingly do not reach the issues involving the Commission's
authority and the merits of its order -- issues that have been
argued at length before us.
The applicable provisions of the Urgent Deficiencies Act, 38
Stat. 220, 28 U.S.C. § 47, state:
". . . No interlocutory injunction suspending or restraining the
enforcement, operation, or execution of, or setting aside, in whole
or in part, any order made or entered by the Interstate Commerce
Commission shall be issued or granted by any district court of the
United States, or by any judge thereof, or by any circuit Judge
acting as district judge, unless the application for the same shall
be presented to a circuit or district judge, and shall be heard and
determined by three judges, of whom at least one shall be a circuit
judge, and unless a majority of said three judges shall concur in
granting such application. When such application as aforesaid is
presented to a judge, he shall immediately call to his assistance
to hear and determine the application two other judges. . . .
That, in cases where irreparable damage would
otherwise ensue to the petitioner, a majority of said three judges
concurring, may, on hearing, . . . allow a temporary stay or
suspension, in whole or in part, of the operation of the order of
the Interstate Commerce Commission for not more than sixty days . .
. , and upon the final hearing of any suit brought to suspend or
set aside, in whole or in part, any order of said commission the
Page 331 U. S. 136
as to judges and the same procedure as to expedition and appeal
shall apply. . . ."
The requirement that three judges hear and determine suits to
enjoin or set aside Interstate Commerce Commission orders had its
origin in the provisions of the Expediting Act of February 11,
1903, 32 Stat. 823. That Act required three circuit Judges, or two
circuit Judges and a district judge, to hear cases brought by the
United States to enforce the antitrust and commerce laws. This
feature was then extended by the Hepburn Act of 1906, 34 Stat. 584,
592, to all suits brought to enforce or enjoin any order of the
Interstate Commerce Commission, "including the hearing on an
application for a preliminary injunction." The Act of June 18,
1910, 36 Stat. 539, created the Commerce Court and vested in it
jurisdiction over suits to enjoin Commission orders; that court was
composed of five judges, four of them constituting a quorum and at
least three being required to concur in all decisions. Finally, the
Urgent Deficiencies Act of 1913 transferred this jurisdiction to
three-judge district courts, as detailed above. United States
v. Griffin, 303 U. S. 226
303 U. S.
The policy of requiring the deliberation of three judges in
suits to enjoin the enforcement of Interstate Commerce Commission
orders is thus a well established one. It is grounded in the
legislative desire to guard against ill considered action by a
single judge in the important and complex situations frequently
presented by Commission orders. Such matters are deemed to warrant
the full deliberation which a court of three judges is likely to
This requirement, of course, is necessarily technical. It is not
a broad social measure to be construed with liberality. It is a
technical rule of procedure, to be applied as such. See
Phillips v. United States, 312 U. S. 246
312 U. S.
Page 331 U. S. 137
251. While due consideration must be given to the statutory
policy of expediting the disposition of applications to enjoin the
enforcement of Commission orders, the plain language of the Urgent
Deficiencies Act compels strict adherence to the command that such
applications "shall be heard and determined by three judges, of
whom at least one shall be a circuit judge." And we must insist
upon obedience to that legislative will even though the disposition
of some applications may thereby be delayed.
When the framers of the Urgent Deficiencies Act declared that
these applications "shall be heard and determined by three judges,"
we assume that they meant exactly what they said. The requirement
that three judges hear and determine an application means that they
must adjudicate the issues of law and fact which are presented by
the case, a function which implies that they must weigh the
arguments and testimony offered by both sides, and vote either to
grant or deny the relief sought by the moving party. [Footnote 2
] In addition,
"Compliance with the statute
Page 331 U. S. 138
requires the assent of the three judges given after the
application is made, evidence by their signatures or an
announcement in open court with three judges sitting, followed by a
formal order tested as they direct."
Cumberland Tel. Co. v. Public Service Commission,
260 U. S. 212
260 U. S. 218
All three judges, in other words, must fully perform the judicial
function. [Footnote 3
Dohany v. Rogers, 281 U. S. 362
281 U. S.
It is significant that this Act makes no provision for a quorum
of less than three judges. Two judges of a three-judge circuit
court of appeals, on the other hand, ordinarily constitute a
statutory quorum for the hearing and determination of cases.
] 28 U.S.C. § 212.
The absence of such a quorum provision as to three-judge district
courts is a strong corroborating indication that participation by
all three judges is necessary to render a valid decision.
Page 331 U. S. 139
The Act provides, it is true, that a decision may be reached by
a three-judge court if a "majority of said three judges" concur.
But that means only that the decision of the three judges need not
be unanimous; it does not imply that two judges alone may hear and
determine the case.
Moreover, we cannot say that the failure of the third judge to
participate in the determination of a case, where the other two are
in agreement as to the result, is without significance. The
decision reached by two judges is not necessarily the one which
might have been reached had they had the benefit of the views and
conclusions of the third judge. And should the latter have publicly
indicated an opinion differing from that of his colleagues, his
position might be helpful to the litigants and to this Court if the
case were appealed.
It is readily apparent that this statutory requirement has not
been met in this case. While all three judges of the specially
constituted court heard the oral argument, only two of them
participated in the determination of the case. The findings of
fact, the conclusions of law, and the judgment were all entered
without the approval, concurrence, or dissent of the third judge.
He thus missed the very essence of the judicial function in this
case -- the actual adjudication of the issues of law and fact. All
that we have here is an adjudication by two judges. But, under the
statute, it is not enough that there be an adjudication by two
judges. They lack any statutory authority to hear and determine an
application to enjoin the enforcement of a Commission order. Any
action of theirs in granting or denying such an application is as
void as similar action by a single judge. See Cumberland Tel.
Co. v. Public Service Commission, supra, 260 U. S.
-219; Stratton v. St. Louis S.W. R. Co.,
282 U. S. 10
282 U. S.
It is suggested, however, that the three-judge requirement
applies only to applications for interlocutory injunctions
Page 331 U. S. 140
against the enforcement of Interstate Commerce Commission
orders, and, since the decision in this case was one denying a
permanent injunction, no complaint can be made that the decision
was rendered by less than three judges. Reference is made in this
respect to § 266 of the Judicial Code, 28 U.S.C. § 380, which deals
with injunctions against the enforcement of state statutes or state
administrative orders on the ground of unconstitutionality of the
statute involved. Prior to 1925, that section indicated that a
three-judge court was necessary only to pass upon applications for
interlocutory injunctions. A single judge had jurisdiction to hear
the cause on final hearing and to grant or deny a permanent
injunction, thereby permitting him to reconsider and decide
questions already passed upon by the three judges on the
application for an interlocutory injunction. To end that anomalous
situation, an amendment was added by the Act of February 13, 1925,
43 Stat. 938, to the effect that "The requirement respecting the
presence of three judges shall also apply to the final hearing in
such suit in the district court." The problem then arose as to
whether the words "such suit" in this amendment referred only to a
suit in which an interlocutory injunction was in fact sought, or to
a suit in which it might have been, but was not, requested. A
series of decisions by this Court has made it clear that the former
interpretation is the correct one. A three-judge court must be
convened for final hearings on applications for permanent
injunctions against the enforcement of state statutes only where an
interlocutory injunction has been sought and pressed to a hearing.
Moore v. Fidelity & Deposit Co., 272 U.
; Smith v. Wilson, 273 U.
; Public Service Commission v. Wisconsin
Telephone Co., 289 U. S. 67
McCart v. Indianapolis Water Co., 302 U.
. Where an interlocutory injunction is not
Page 331 U. S. 141
sought and pressed, a single judge may hear and determine the
application for a permanent injunction.
By analogy, it is claimed that the same rule should obtain under
the Urgent Deficiencies Act, that a three-judge court should be
necessary for final hearings on applications for permanent
injunctions only where interlocutory injunctions have been sought
and pressed. While it is admitted that an interlocutory injunction
was sought in this case, the argument is made that the application
was not pressed to a hearing, the need for such temporary relief
having been eliminated by the postponement of the effective date of
the Commission order. The whole emphasis of the Act, like that of §
266 of the Judicial Code, is said to be directed toward the
prevention of improvident issuance of interlocutory injunctions or
restraining orders. Since there was no such danger in this case,
the conclusion is reached that the underlying reason for the
convening of a three-judge district court is absent here.
The answer to this argument is to be found in the clear language
of the Act itself. It provides simply:
"and, upon the final hearing of any suit brought to suspend or
set aside, in whole or in part, any order of said commission, the
same requirement as to judges and the same procedure as to
expedition and appeal shall apply."
Unlike § 266 of the Judicial Code, there is no reference here to
"such suit" -- to a suit where an interlocutory injunction is
sought and pressed. Rather, there is an unambiguous reference to
the final hearing of "any suit" brought to enjoin the enforcement
of a Commission order. That can only mean any suit seeking
permanent relief, regardless of whether interlocutory relief is
also requested. And, since "the same requirement as to judges" is
to apply to the final hearing of any suit, three judges must hear
and determine the matter.
Page 331 U. S. 142
In addition, this portion of the Urgent Deficiencies Act was
part of the original enactment, and was not added to meet a problem
like that which arose under § 266 of the Judicial Code. It was
drawn against a background of prior statutes which provided for
injunctive relief against the enforcement of Commission orders
without regard to the presence of a request for temporary relief.
The Hepburn Act required a three-judge court for "all" suits
brought to enjoin a Commission order, "including the hearing on an
application for a preliminary injunction," -- a clear indication
that a three-judge court was also necessary where only permanent
relief was sought. And the statute which created the Commerce
Court, from which the district courts inherited their jurisdiction
in this instance, referred to "cases" brought to enjoin or set
aside Commission orders, making no distinction as to those in which
only permanent relief was sought. We can only conclude that the
framers of the Urgent Deficiencies Act meant to require a
three-judge court in any suit brought to enjoin the enforcement of
a Commission order, including a suit where an interlocutory
injunction is not sought and pressed to a hearing.
Time and again, this Court has referred to the three-judge court
requirement under this Act without making the distinction which has
been made under § 266 of the Judicial Code. Lambert Run Coal
Co. v. Baltimore & Ohio R. Co., 258 U.
, 258 U. S.
-382; Baltimore & Ohio R. Co. v. United
States, 279 U. S. 781
279 U. S.
-785; United States v. Griffin, supra,
303 U. S.
-233. Indeed, without passing upon the precise
problem, this Court has affirmed judgments of three-judge district
courts which had granted permanent injunctions in cases where no
interlocutory injunctions had been sought or pressed. See,
e.g., United States v. Idaho, 298 U.
. And see Hudson & Manhattan R. Co. v.
28 F. Supp. 137, 140.
Page 331 U. S. 143
The language and background of the Act, which have been
augmented by the consistent understanding of this Court, [Footnote 5
] thus combine to require the
use of a three-judge district court in all cases in which a
permanent or interlocutory injunction is sought against the
enforcement of a Commission order. It matters not in a particular
case whether an interlocutory injunction is requested or whether,
if such relief is asked, the application is pressed to a hearing.
This Act seeks to guard against more than an improvident issuance
of interlocutory injunctions by single judges; it also seeks to
prevent single judges from
Page 331 U. S. 144
issuing permanent injunctions. [Footnote 6
] To that end, Congress has required the use of
a three-judge court ,and we are bound to carry out the letter and
the spirit of that requirement. That two judges might, in a
particular instance, give the same protection against single-judge
action as three judges does no justify ignoring or relaxing the
plain requirement that three judges hear and determine all
applications to enjoin the enforcement of Commission orders. If
such an amendment to the Act is to be made, it must be made by
Congress, rather than by this Court.
Since the judgment entered by two judges in this case was void
and without statutory authority, we have no alternative but to
vacate the judgment and dismiss the appeal. Appellants will be
free, of course, to suggest that the District Court be reconvened
in accordance with the Act, so that three judges may hear and
determine the application to enjoin the Commission order in
MR. JUSTICE RUTLEDGE dissents.
Urgent Deficiencies Act of October 22, 1913, 38 Stat. 208, 219,
220, 28 U.S.C. § 45 and 47a; Judicial Code § 238, as amended by the
Act of February 13, 1925, 43 Stat. 936, 938, 28 U.S.C. § 345.
In Ohio v. United States, 6 F.
, aff'd, 392 U. S. 392
U.S. 498, a case under the Urgent Deficiencies Act was argued
before a court of three judges, all of whom participated in the
discussions leading to a determination of the case. One of the
judges died before the decision was announced. An opinion written
by the judge who died was found among his papers after his death,
and was published as the opinion of the court, concurred in by the
other two judges. The opinion had been written pursuant to an
arrangement made at a prior conference of the three judges. The
findings of fact and conclusions of law, which were filed some time
after the opinion, were signed only by the two surviving judges.
The matter, however, was not raised by the parties on appeal, and
was not considered or decided by this Court. The mere fact that the
case was entertained by this Court is no basis for considering it
as authoritative on the jurisdictional issue, it being the firm
policy of this Court not to recognize the exercise of jurisdiction
as precedent where the issue was ignored. United
States v. More,
3 Cranch 159, 7 U. S. 172
Snow v. United States, 118 U. S. 346
118 U. S.
-355; Cross v. Burke, 146 U. S.
, 146 U. S. 87
Louisville Trust Co. v. Knott, 191 U.
, 191 U. S. 236
Arant v. Lane, 245 U. S. 166
245 U. S. 170
Cf. Frellsen & Co. v. Crandell, 217 U. S.
, where this Court, after Mr. Justice Brewer's death,
adopted as its opinion one previously written by him.
In James v. Clement,
217 F. 51, a case had been argued
and submitted to a three-judge circuit court of appeals and a
decision rendered by a divided vote. A petition for rehearing had
been filed, and the court had decided that the prior decision was
erroneous and that the opposite result should be announced without
further briefs or argument. But. before an order to that effect
could be promulgated, one of the judges died. Since the other two
judges were divided in their views, the case was restored for
argument before a full bench of three judges. See also Ryan v.
Pennsylvania Public Utility Commission,
44 F. Supp. 912,
32 Stat. 823, as amended by 58 Stat. 272, 15
U.S.C. § 29, which provides that the senior circuit judge and the
two circuit judges next in order of seniority shall "hear and
determine" appeals from district court judgments in antitrust cases
where this Court is unable to consider the appeals because of a
lack of a quorum. United States v. Aluminum Co. of
148 F.2d 416.
The same understanding, that the Urgent Deficiencies Act
requires three judges for all applications to enjoin Commission
orders, while § 266 of the Judicial Code requires a three-judge
court only for applications for interlocutory injunctions, is shown
in the remarks of Mr. Justice Van Devanter at the Hearing before
the Subcommittee of the Senate Committee on the Judiciary on S.
2060 and S. 2061, 68th Cong., 1st Sess., p. 33 (S. 2060 later
became the Act of February 13, 1925):
"Section 238, as amended and reenacted in the bill, would permit
cases falling within four particular classes, and those only, to
come from the district courts directly to the Supreme Court. The
first and fourth classes are confined to antitrust and interstate
commerce cases covered by the second section of the expedition act
of February 11, 1903, and the provision in the act of October 22,
1913, respecting the enforcement, suspension, etc., of orders of
the Interstate Commerce Commission. These cases are heard in the
district court by three judges, one of whom must be a circuit
judge. This and the character of the cases make it suggest that
they should go directly to the Supreme Court, rather than through
the circuit courts of appeals. The third class is confined to cases
wherein the enforcement of a State statute or of an order of a
State board or commission is suspended by an interlocutory
injunction. Applications for such injunctions are heard in the
district court by three judges, one being a circuit judge. These
injunctions now go directly to the Supreme Court for review, and
the bill continues that procedure. . . ."
Mr. Justice Van Devanter's remarks at Hearing
before House Committee on the Judiciary on H.R.8206, 68th Cong., 2d
Sess., p. 15.
50 Stat. 752, 28 U.S.C. § 380a, providing that
no interlocutory or permanent injunction restraining the
enforcement of, or setting aside, any Act of Congress on the ground
of unconstitutionality shall be issued by a district court, unless
the application shall be presented to a circuit or district judge
and shall be heard and determined by three judges, of whom at least
one shall be a circuit judge.