1. Section 266 of the Jud.Code is not a measure of broad social
policy to be construed with great liberality, but an enactment
technical, in the strict sense of the term, and to be applied as
such. P.
312 U. S.
251.
2. A suit to enjoin the Governor of a State from employing
military force in alleged violation of plaintiff's constitutional
rights cannot be maintained in a three-judge District Court under
Jud.Code § 266, or be reviewed by direct appeal to this Court under
that section, where the validity of no statute of the State is
challenged, but merely the legality of the Governor's actions done
under color of general provisions of the state constitution and
laws conferring his executive and military powers.
Sterling v.
Constantin, 287 U. S. 378,
distinguished. P.
312 U. S.
253.
Page 312 U. S. 247
3. A decree of the District Court in a suit mistakenly brought
under Jud.Code § 266 is reviewable by the Circuit Court of Appeals,
though rendered by three judges. P.
312 U. S. 254.
4. On an appeal to this Court from a decree of a three-judge
District Court, in a suit erroneously brought under Jud.Code § 266,
this Court vacated the decree and remanded the cause to the
District Court so that it might enter a fresh decree from which a
timely appeal could be taken. P.
312 U. S. 254.
Decree vacated.
Appeal from a decree of the District Court of three judges
awarding an interlocutory injunction.
33 F. Supp.
261.
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
As part of a flood control and hydroelectric development, the
Grand River Dam Authority, an agency of the Oklahoma, was empowered
to construct the Grand River Dam, with authority to borrow money
and accept grants from the United States. Oklahoma Laws of 1935,
Art. 4, c. 70, 82 Okl.St.Ann. § 861
et seq. For the
construction of the dam, the United States allotted twenty million
dollars to the Authority. Eight and one-half millions, in round
numbers, were to be used as a grant, and eleven and one-half for
the bonds of the Authority. Construction began in
Page 312 U. S. 248
February, 1938, and, by the spring of last year, much of the
work was nearing completion. During this period, the Governor of
Oklahoma unsuccessfully pressed against the Authority claims for
the flooding of roads within the dam area. The action which the
Governor finally took to enforce his own views in this matter is
the source of the present litigation. On March 13, 1940, he
declared martial law in an area surrounding part of the dam site
and ordered the Adjutant General of the state to occupy it. The
following day, the Governor, in conjunction with other state
officials, obtained an
ex parte order in a state court
restraining further work on the dam by the Authority. Thereupon,
the United States began the present suit in a federal district
court. A temporary order was issued against the Governor and the
other officials restraining them from interference with the Grand
River project by further prosecution of their suit in the state
court and by the use of military force. Deeming the suit to be one
arising under § 266 of the Judicial Code, as amended, 28 U.S.C. §
380, a district court of three judges was convened which, after
hearing, entered an interlocutory injunction in the terms of the
temporary restraining order. This is the decree that is now before
us.
But, unless § 266 required the present suit to be heard by three
judges, under the Jurisdictional Act of 1925, we are without
authority to entertain this direct appeal from a district court. §
238 of the Judicial Code, as amended, 28 U.S.C. § 345. Having
concluded that there is a fatal bar to our entertaining the appeal,
we are without power to consider the other issues that were argued
here.
By § 266, which is set forth in the margin,
* Congress
provided an exceptional procedure for a well understood
Page 312 U. S. 249
type of controversy. The legislation was designed to secure the
public interest in "a limited class of cases of special
importance."
Ex parte Collins, 277 U.
S. 565,
277 U. S.
567.
Page 312 U. S. 250
It is a matter of history that this procedural device was a
means of protecting the increasing body of state legislation
regulating economic enterprise from invalidation by a conventional
suit in equity. While Congress thus sought to assure more weight
and greater deliberation by not leaving the fate of such litigation
to a single judge, it was no less mindful that the requirement of
three judges, of whom one must be a Justice of this Court or a
circuit judge, entails a serious drain upon the federal judicial
system particularly in regions where, despite modern facilities,
distance still plays an important part in the effective
administration of justice. And all but the few great metropolitan
areas are such regions. Moreover, inasmuch as this procedure also
brings direct review of a district court to this Court, any loose
construction of the requirements of § 266 would defeat the purposes
of Congress, as expressed by the Jurisdictional Act of February 13,
1925, to keep within narrow confines our appellate docket.
Moore v. Fidelity & Deposit Co., 272 U.
S. 317,
272 U. S. 321. The
history of § 266 (
see Pogue, State Determination of State
Law, 41 Harv.L.Rev. 623, and Hutcheson, A Case for Three Judges, 47
Harv.L.Rev. 795), the narrowness
Page 312 U. S. 251
of its original scope, the piecemeal explicit amendments which
were made to it (
see Act of March 4, 1913, 37 Stat. 1013,
and Act of February 13, 1925, 43 Stat. 936, amending § 238 of the
Judicial Code), the close construction given the section in
obedience to Congressional policy (
see, for instance, Moore v.
Fidelity & Deposit Co., supra; Smith v. Wilson,
273 U. S. 388;
Ex parte Collins, supra; Oklahoma Gas Co. v. Packing Co.,
292 U. S. 386;
Ex parte Williams, 277 U. S. 267;
Ex parte Public National Bank, 278 U.
S. 101;
Rorick v. Board of Comm'rs,
307 U. S. 208;
Ex parte Bransford, 310 U. S. 354),
combine to reveal § 266 not as a measure of broad social policy to
be construed with great liberality, but as an enactment technical
in the strict sense of the term and to be applied as such.
To bring this procedural device into play -- to dislocate the
normal operations of the system of lower federal courts, and
thereafter to come directly to this Court -- requires a suit which
seeks to interpose the Constitution against enforcement of a state
policy, whether such policy is defined in a state constitution or
in an ordinary statute or through the delegated legislation of an
"administrative board or commission." The crux of the business is
procedural protection against an improvident statewide doom by a
federal court of a state's legislative policy. This was the aim of
Congress, and this is the reconciling principle of the cases.
To the test of this principle must be put the argument that the
present case is within § 266.
The Oklahoma constitution has the customary provisions
pertaining to the powers of a governor. In him is lodged "The
Supreme Executive power," he is "Commander in Chief of the militia
of the State" and he "shall cause the laws of the State to be
faithfully executed." Constitution of Oklahoma, Article VI, §§ 2,
6, 8, Okl.St.Ann. Defining with particularity these powers, an
Oklahoma statute
Page 312 U. S. 252
"authorized and required" its Governor to call out the national
guard in case of war or similar contingencies, including
"any forcible obstructing of the execution of the laws or
reasonable apprehension thereof, and at all other times he may deem
necessary. . . ."
Oklahoma Statutes 1931, § 4989, Okl.St.Ann. Title 44, § 66. In
its complaint, the United States did not impugn the validity of
these Oklahoma provisions. But the Governor justified his
declaration of martial law under their authority, and, since his
action is deemed a lawless interference with the Government's
constitutional rights, the suit is claimed to be an "application
for" an "interlocutory injunction . . . restraining the
enforcement, operation, or execution of" a
"statute of a State by restraining the action of any officer of
such State in the enforcement or execution of such a statute . . .
upon the ground of the unconstitutionality of such statute."
The claim proves too much. Probably most of the actions of
governors trace back to the common provision charging them with
taking care that the laws be faithfully executed. Some
constitutional or statutory provision is the ultimate source of all
actions by state officials. But an attack on lawless exercise of
authority in a particular case is not an attack upon the
constitutionality of a statute conferring the authority, even
though a misreading of the statute is invoked as justification. At
least, not within the Congressional scheme of § 266. It is
significant that the United States, in its complaint, did not
charge the enabling acts of Oklahoma with unconstitutionality, but
assailed merely the Governor's action as exceeding the bounds of
law. In other words, it seeks a restraint not of a statute, but of
an executive action. But the enforcement of a "statute," within the
meaning of § 266, is not sought to be enjoined merely because a
state official seeks shelter under it by way of defense against a
charge of lawlessness. As Mr. Justice
Page 312 U. S. 253
Cardozo said of a related problem affecting the business of the
federal courts, "we do not travel back so far."
Gully v. First
National Bank, 299 U. S. 109,
299 U. S.
116.
On its face, § 266 precludes a reading which would bring within
its scope every suit to restrain the conduct of a state official
whenever, in the ultimate reaches of litigation, some enactment may
be said to authorize the questioned conduct. The special procedure
only attends "the application for" an interlocutory injunction
restraining enforcement of a statute. In other words, the
complainant must seek to forestall the demands of some general
state policy the validity of which he challenges. No one questions
Oklahoma's authority to give her Governor "Supreme Executive
power," nor to make him Commander-in-Chief of her militia. What is
here challenged is a single, unique exercise of these prerogatives
of his office. This view is reinforced by the proviso added to §
266 by the Act of March 4, 1913, 37 Stat. 1013, whereby suit in a
federal court against the enforcement of a statute can be stayed if
appropriate provision is made for testing its validity in the state
courts. Of course, a suit cannot be brought in the court of a state
to enforce a governor's declaration of martial law. In short, this
is not a case for which the procedural structure of § 266 was
devised. If the Governor's action is subject to restraint in the
District Court, the procedural road to be taken is the normal
course of litigation in a federal district court, and not the
shortcut of § 266.
Sterling v. Constantin, 287 U.
S. 378, which is invoked as a precedent, was a very
different case. There, martial law was employed in support of an
order of the Texas Railroad Commission limiting production of oil
in the East Texas field. The Governor was sought to be restrained
as part of the main objective to enjoin "the execution of an order
made by an administrative . . . commission," and, as such, was
indubitably within § 266.
Page 312 U. S. 254
Compare Railroad Commission v. Rowan & Nichols Oil
Co., 311 U. S. 570,
and Railroad Commission v. Humble Oil & Refining Co.,
311 U. S. 578.
Had a timely appeal been taken to the circuit court of appeals,
the decree below could have been reviewed there, though rendered by
three judges.
Healy v. Ratta, 289 U.S. 701; Id., 67 F.2d
554;
292 U. S. 292 U.S.
263. While this Court cannot hear the merits, it will, where the
question of jurisdiction was not obviously settled by prior
decisions, enforce the limitations of § 266 by an order framed to
save appellants their proper remedies.
Oklahoma Gas Co. v.
Packing Co., 292 U. S. 386,
292 U.S. 392. We therefore
vacate the decree and remand the cause to the court which heard the
case, so that it may enter a fresh decree from which appellants
may, if they wish, perfect a timely appeal to the circuit court of
appeals.
Decree vacated.
* Judicial Code § 266, as amended, 28 U.S.C. § 380:
"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, or in the enforcement or
execution of an order made by an administrative board or commission
acting under and pursuant to the statutes of such State, shall be
issued or granted by any justice of the Supreme Court, or by any
district court of the United States, or by any judge thereof, or by
any circuit judge acting as district 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 or district judge, and shall be
heard and determined by three judges, of whom at least one shall be
a justice of the Supreme Court or a circuit judge, and the other
two may be either circuit or district judges, and unless a 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, 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, 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, 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 remain in force only
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 direct
to the Supreme Court of the United States from the order granting
or denying, after notice and hearing, an interlocutory injunction
in such case. It is further provided that if, before the final
hearing of such application, a suit shall have been brought in a
court of the State having jurisdiction thereof under the laws of
such State to enforce such statute or order, accompanied by a stay
in such State court of proceedings under such statute or order
pending the determination of such suit by such State court, all
proceedings in any court of the United States to restrain the
execution of such statute or order shall be stayed pending the
final determination of such suit in the courts of the State. Such
stay may be vacated upon proof made, after hearing, and notice of
ten days served upon the attorney general of the State, that the
suit in the State courts is not being prosecuted with diligence and
good faith. The requirement respecting the presence of three judges
shall also apply to the final hearing in such suit in the district
court, and a direct appeal to the Supreme Court may be taken from a
final decree granting or denying a permanent injunction in such
suit."