Appellants, two meat-packing companies, sued in the Federal
District Court to enjoin enforcement of a New York statute
requiring that the label for packaged poultry disclose the weight
of the unstuffed bird as well as of the entire package. Appellants
claimed that the state statute violated the Commerce Clause, the
Fourteenth Amendment, and overriding federal labeling requirements
under which the state label had been disapproved. A three-judge
District Court was convened under 28 U.S.C. § 2281, providing for
such a tribunal whenever the enforcement of a state statute is
sought to be enjoined "upon the ground of the unconstitutionality
of such statute." That court dismissed on the merits in both its
single-judge and three-judge capacities, and appeals were taken
respectively to the Court of Appeals and (under 28 U.S.C. § 1253)
to this Court.
Held: The three-judge court requirement applies to
injunction suits depending directly upon a substantive provision of
the Constitution, and does not apply to Supremacy Clause cases
involving only federal-state statutory conflicts. Pp.
382 U. S.
114-129.
(a) Appellants' Commerce Clause and Fourteenth Amendment claims
are too insubstantial to support three-judge court jurisdiction.
Pp.
382 U. S.
114-115.
(b) A claim that a state statute is preempted by or in conflict
with a federal provision though grounded in the Supremacy Clause
primarily involves the comparison of two statutes, rather than the
interpretation of the Constitution; therefore, as established in
Ex parte Buder, 271 U. S. 461;
Ex parte Bransford, 310 U. S. 354, and
Case v. Bowles, 327 U. S. 92,
Supremacy Clause cases are not within the purview of § 2281. Pp.
382 U. S.
120-122.
(c) The holding in
Kesler v. Department of Public
Safety, 369 U. S. 153,
that a three-judge court is required if the constitutional issue is
"immediately" apparent, but not if substantial statutory
Page 382 U. S. 112
construction is required, is unworkable, and that decision is,
pro tanto, overruled. Pp.
382 U. S.
124-129.
230 F.
Supp. 398, appeal dismissed.
MR. JUSTICE HARLAN delivered the opinion of the Court.
Appellants, the Swift and Armour Companies, stuff, freeze, and
package turkeys which they ship to retailers throughout the country
for ultimate sale to consumers. Each package is labeled with the
net weight of the particular bird (including stuffing) in
conformity with a governing federal statute, the Poultry Products
Inspection Act of 1957, 71 Stat. 441, 21 U.S.C. §§ 451-469 (1964
ed.), and the regulations issued under its authority by the
Secretary of Agriculture. [
Footnote
1] Many of these turkeys are
Page 382 U. S. 113
sold in New York. Section 193 of New York's Agriculture and
Markets Law [
Footnote 2] has
been interpreted through regulations and rulings to require that
these packaged turkeys be sold with labels informing the public of
the weight of the unstuffed bird, as well as of the entire package.
Because the amount of stuffing varies with each bird, the State
thus seeks to help purchasers ascertain just how much fowl is
included in each "ready for the oven" turkey.
Swift and Armour requested permission of the Poultry Products
Section of the Department of Agriculture to change their labels in
order to conform with New York's requirements, but such permission
was refused at the initial administrative level, and no
administrative review of that refusal was sought. Swift and
Armour
Page 382 U. S. 114
then brought this federal action to enjoin the Commissioner of
Agriculture and Markets of New York from enforcing the State's
labeling provisions, asserting that enforcement would violate the
Commerce Clause and the Fourteenth Amendment of the Federal
Constitution and overriding requirements of the federal poultry
enactment.
Pursuant to appellants' request, a three-judge district court
was constituted under 28 U.S.C. § 2281 (1958 ed.), which provides
for such a tribunal whenever the enforcement of a state statute is
sought to be enjoined "upon the ground of the unconstitutionality
of such statute." The District Court, unsure of its jurisdiction
for reasons appearing below, dismissed the suit on the merits,
[
Footnote 3] acting both in a
three-judge and single-judge capacity. [
Footnote 4] Appeals were lodged in the Court of Appeals
for the Second Circuit from the single-judge determination, and in
this Court from the three-judge decision in accordance with the
direct appeal statute, 28 U.S.C. § 1253 (1964 ed.). The threshold
question before us, the consideration of which we postponed to the
merits (379 U.S. 997), is whether this Court, rather than the Court
of Appeals, has jurisdiction to review the District Court
determination, and this in turn depends on whether a three-judge
court was required. We hold that it was not.
At the outset, we agree with the District Court that the
Commerce Clause and Fourteenth Amendment
Page 382 U. S. 115
claims alleged in the complaint are too insubstantial to support
the jurisdiction of a three-judge court. It has long been held that
no such court is called for when the alleged constitutional claim
is insubstantial,
Ex parte Poresky, 290 U. S.
30;
California Water Service Co. v. City of
Redding, 304 U. S. 252.
Since the only remaining basis put forth for enjoining enforcement
of the state enactment was its asserted repugnancy to the federal
statute, the District Court was quite right in concluding that the
question of a three-judge court turned on the proper application of
our 1962 decision in
Kesler v. Department of Public
Safety, 369 U. S. 153.
There, we decided that, in suits to restrain the enforcement of a
state statute allegedly in conflict with or in a field preempted by
a federal statute, § 2281 comes into play only when the Supremacy
Clause of the Federal Constitution is immediately drawn in
question, but not when issues of federal or state statutory
construction must first be decided, even though the Supremacy
Clause may ultimately be implicated. Finding itself unable to say
with assurance whether its resolution of the merits of this case
involved less statutory construction than had taken place in
Kesler, the District Court was left with the puzzling question how
much more statutory construction than occurred in
Kesler
is necessary to deprive three judges of their jurisdiction.
It might suffice to dispose of the three-judge court issue for
us to hold, in agreement with what the District Court indicated,
230 F. Supp. at 410, that this case involves so much more statutory
construction than did
Kesler that a three-judge court was
inappropriate. (We would, indeed, find it difficult to say that
less or no more statutory construction was involved here than in
Kesler, and that, therefore, under that decision, a
three-judge court was necessary.) We think, however, that such a
disposition of this important jurisdictional question would be
Page 382 U. S. 116
less than satisfactory, that candor compels us to say that we
find the application of the
Kesler rule as elusive as did
the District Court, and that we would fall short in our
responsibilities if we did not accept this opportunity to take a
fresh look at the problem. We believe that considerations of
stare decisis should not deter us from this course. Unless
inexorably commanded by statute, a procedural principle of this
importance should not be kept on the books in the name of
stare
decisis once it is proved to be unworkable in practice; the
mischievous consequences to litigants and courts alike from the
perpetuation of an unworkable rule are too great. For reasons given
in this opinion, we have concluded that the
Kesler
doctrine in this area of § 2281 is unsatisfactory, and that
Kesler should be,
pro tanto, overruled. The
overruling of a six-to-two decision [
Footnote 5] of such recent vintage, which was concurred in
by two members of the majority in the present case, [
Footnote 6] and the opinion in support of
which was written by an acknowledged expert in the field of federal
jurisdiction, demands full explication of our reasons.
I
The three-judge district court is a unique feature of our
jurisprudence, created to alleviate a specific discontent within
the federal system. The antecedent of § 2281 was a 1910 Act
[
Footnote 7] passed to assuage
growing popular displeasure with the frequent grants of injunctions
by federal courts against the operation of state legislation
regulating railroads, and utilities, in particular. [
Footnote 8] The
Page 382 U. S. 117
federal courts of the early nineteenth century had occasionally
issued injunctions at the behest of private litigants against state
officials to prevent the enforcement of state statutes, [
Footnote 9] but such cases were rare,
and generally of a character that did not offend important state
policies. The advent of the Granger and labor movements in the late
nineteenth century, [
Footnote
10] and the acceleration of state social legislation,
especially through the creation of regulatory bodies, met with
opposition in the federal judiciary. In
Chicago, M. & St.P.
R. Co. v. Minnesota, 134 U. S. 418,
this Court held that the setting of rates not permitting a fair
return violated the Due Process Clause of the Fourteenth Amendment.
Ex parte Young, 209 U. S. 123,
established firmly the corollary that inferior federal courts could
enjoin state officials from enforcing such unconstitutional state
laws.
This confrontation between the uncertain contours of the Due
Process Clause and developing state regulatory
Page 382 U. S. 118
legislation, arising in district courts that were generally
considered unsympathetic to the policies of the States, had severe
repercussions. Efforts were made in Congress to limit in various
ways the jurisdiction of federal courts in these sensitive areas.
[
Footnote 11] State
officials spoke out against the obstruction and delay occasioned by
these federal injunction suits. [
Footnote 12] The sponsor of the bill establishing the
three-judge procedure for these cases, Senator Overman of North
Carolina, noted:
"[T]here are 150 cases of this kind now where one federal judge
has tied the hands of the state officers, the governor, and the
attorney general. . . ."
"
* * * *"
"Whenever one judge stands up in a State and enjoins the
governor and the attorney general, the people resent it, and public
sentiment is stirred, as it was in my State, when there was almost
a rebellion, whereas, if three judges declare that a state statute
is unconstitutional, the people would rest easy under it."
45 Cong.Rec. 7256. [
Footnote
13]
Page 382 U. S. 119
In such an atmosphere was this three-judge court procedure put
on the statute books, and, although subsequent Congresses have
amended the statute, [
Footnote
14] its basic structure remains intact.
II
Section 2281 was designed to provide a more responsible forum
for the litigation of suits which, if successful, would render void
state statutes embodying important state policies. The statute
provides for notification to the State of a pending suit, 28 U.S.C.
§ 2284(2) (1964 ed.), thus preventing
ex parte injunctions
common previously. [
Footnote
15] It provides for three judges, one of whom must be a circuit
judge, 28 U.S.C. § 2284(1) (1964 ed.), to allow a more
authoritative determination and less opportunity for individual
predilection in sensitive and politically emotional areas. It
authorizes direct review by this Court, 28 U.S.C. § 1253, as a
means of accelerating a final determination on the merits; an
important criticism of the pre-1910 procedure was directed at
the
Page 382 U. S. 120
length of time required to appeal through the circuit courts to
the Supreme Court, and the consequent disruption of state tax and
regulatory programs caused by the outstanding injunction. [
Footnote 16]
That this procedure must be used in any suit for an injunction
against state officials on the ground that a state enactment is
unconstitutional has been clear from the start. What yet remains
unclear, in spite of decisions by this and other courts, is the
scope of the phrase "upon the ground of the unconstitutionality of
such statute" when the complaint alleges not the traditional Due
Process Clause, Equal Protection Clause, Commerce Clause, or
Contract Clause arguments, but rather that the state statute or
regulation in question is preempted by or in conflict with some
federal statute or regulation thereunder. Any such preemption or
conflict claim is, of course, grounded in the Supremacy Clause of
the Constitution: if a state measure conflicts with a federal
requirement, the state provision must give way.
Gibbons v.
Ogden, 9 Wheat. 1. The basic question involved in
these cases, however, is never one of interpretation of the Federal
Constitution, but inevitably one of comparing two statutes. Whether
one district judge or three must carry out this function is the
question at hand.
The first decision of this Court casting light on the problem
was
Ex parte Buder, 271 U. S. 461, in
which the question presented was, as here, whether an appeal was
properly taken directly from the District Court to the Supreme
Court. At issue was whether a Missouri statute authorizing taxation
of bank shares remained valid after the enactment of a federal
statute which enlarged the scope of the States' power to tax
national banks by permitting taxation of shares, or dividends,
or
Page 382 U. S. 121
income. Under the federal scheme, States were apparently
expected to choose one of the three methods. Although the Missouri
law applied the first basis of assessment, the District Court held
that, because the State did not explicitly choose among the three
types of taxation, but instead relied on a prior statute, the
assessment was void. Mr. Justice Brandeis, writing for a unanimous
Court, held that this was not properly a three-judge court case ".
. . because no state statute was assailed as being repugnant to the
Federal Constitution." 271 U.S. at
271 U. S. 465.
Although the complaint in
Buder did not explicitly invoke
the Supremacy Clause, it should be noted that the defendants'
answer asserted that, if the federal statute was constitutional
under the Tenth Amendment, then it would indeed be the "
supreme
law of the land' within the meaning and provisions of Article VI of
the Constitution of the United States," and thus controlling over
the particular state statute unless that statute could be construed
as consistent with the federal law. The District Court in
Buder was thus clearly presented with the Supremacy Clause
basis of the statutory conflict.
Ex parte Bransford, 310 U. S. 354,
raised a similar problem, also in the context of the validity of a
state tax. The Court again held this type of federal-state
confrontation outside the purview of the predecessor of § 2281:
"If such assessments are invalid, it is because they levy taxes
upon property withdrawn from taxation by federal law or in a manner
forbidden by the National Banking Act. The declaration of the
supremacy clause gives superiority to valid federal acts over
conflicting state statutes, but this superiority, for present
purposes, involves merely the construction of an act of Congress,
not the constitutionality of the state enactment."
310 U.S. at
310 U. S.
358-359.
Page 382 U. S. 122
In a third case,
Case v. Bowles, 327 U. S.
92, the question involved the proposed sale by the State
of Washington of timber on state-owned land at a price violating
the Federal Emergency Price Control Act of 1942. A federal district
court enjoined the sale, and, on appeal, the State argued that the
single judge lacked jurisdiction. This Court held otherwise:
"the complaint did not challenge the constitutionality of the
state statute, but alleged merely that its enforcement would
violate the Emergency Price Control Act. Consequently a three-judge
court is not required."
327 U.S. at
327 U. S. 97.
[
Footnote 17]
The upshot of these decisions seems abundantly clear: Supremacy
Clause cases are not within the purview of § 2281. [
Footnote 18] This distinction between cases
involving claims
Page 382 U. S. 123
that state statutes are unconstitutional within the scope of §
2281 and cases involving statutory preemption or conflict remained
firm until
Kesler v. Department of Public Safety,
369 U. S. 153, in
which the plaintiff alleged a conflict between the federal
bankruptcy laws and a state statute suspending the driving licenses
of persons who are judgment debtors as a result of an adverse
decision in an action involving the negligent operation of an
automobile. It was argued that federal policy underlying the
bankruptcy law overrode the State's otherwise legitimate exercise
of its police power. Mr. Justice Frankfurter, for a majority,
declared first that § 2281 made no distinction between the
Supremacy Clause and other provisions of the Constitution as a
ground for denying enforcement of a state statute, and, second,
that
Buder, Bransford, and
Case could be
distinguished on the ground that they presented no claims of
unconstitutionality as such:
"If in immediate controversy is not the unconstitutionality of a
state law, but merely the construction of a state law or the
federal law, the three-judge requirement does not become
operative."
369 U.S. at
369 U. S. 157.
In the
Kesler case itself, Mr. Justice Frankfurter said,
there was no problem of statutory construction, but only a
"constitutional question" whether the state enactment was
preempted. After what can only be characterized as extensive
statutory analysis (369 U.S. at
369 U. S.
158-174) the majority concluded that there had, in fact,
been no preemption. [
Footnote
19]
Page 382 U. S. 124
III
In reexamining the
Kesler rule, the admonition that §
2281 is to be viewed "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,"
Phillips v. United States, 312 U.
S. 246,
312 U. S. 251,
should be kept in mind. The
Kesler opinion itself reflects
this admonition, for its rationalization of
Buder,
Bransford, and
Case as being consistent with the view
that Supremacy Clause cases are not excluded from "the
comprehensive language of § 2281," 369 U.S. at
369 U. S. 156,
is otherwise most difficult to explain.
As a procedural rule governing the distribution of judicial
responsibility, the test for applying § 2281 must be clearly
formulated. The purpose of the three-judge scheme was, in major
part, to expedite important litigation: it should not be
interpreted in such a way that litigation, like the present one, is
delayed while the proper composition of the tribunal is litigated.
We are now convinced that the
Kesler rule, distinguishing
between cases in which substantial statutory construction is
required and those in which the constitutional issue is
"immediately" apparent, is in practice unworkable. Not only has it
been uniformly criticized by commentators, [
Footnote 20] but lower courts have quite
evidently sought to avoid dealing with its application, [
Footnote 21] or have interpreted it
with uncertainty. [
Footnote
22] As Judge Friendly's opinion for the court below
demonstrates, in order to ascertain the
Page 382 U. S. 125
correct forum, the merits must first be adjudicated in order to
discover whether the court has "engaged in so much more
construction than in
Kesler as to make that ruling
inapplicable." 230 F. Supp. at 410. Such a formulation, whatever
its abstract justification, cannot stand as an everyday test for
allocating litigation between district courts of one and three
judges.
Two possible interpretations of § 2281 would provide a more
practicable rule for three-judge court jurisdiction. The first is
that
Kesler might be extended to hold, as some of its
language might be thought to indicate, [
Footnote 23] that all suits to enjoin the enforcement
of a state statute, whatever the federal ground, must be channeled
through three-judge courts. The second is that
no such
suits resting solely on "supremacy" grounds fall within the
statute.
The first alternative holds some attraction. First, it is
relatively straightforward: a court need not distinguish among
different constitutional grounds for the requested injunction; it
need look only at the relief sought. Moreover, in those cases, as
in that before us, in which an injunction is sought on several
grounds, the proper forum would not depend on whether certain
alleged constitutional grounds turn out to be insubstantial.
Second, § 2281 speaks of "unconstitutionality," and, to be sure,
any determination that a state statute is void for obstructing a
federal statute does rest on the Supremacy Clause of the Federal
Constitution. And, third, there is some policy justification for a
wider rule. In a broad sense, what concerned the legislators who
passed the progenitor of § 2281 was the voiding of state
legislation by inferior federal courts. The sensibilities of the
citizens, and,
Page 382 U. S. 126
perhaps more particularly, of the state officials, were less
likely to be offended, the Congress thought, by a judgment
considered and handed down by thee judges, rather than by one
judge. This rationale can be thought to be as applicable to a suit
voiding state legislation on grounds of conflict with a federal
statute as it is to an identical suit alleging a conflict with the
Federal Constitution directly.
Persuasive as these considerations may be, we believe that the
reasons supporting the second interpretation, that is, returning to
the traditional
Buder-Bransford-Case rule, should carry
the day. This restrictive view of the application of § 2281 is more
consistent with a discriminating reading of the statute itself than
is the first and more embracing interpretation. The statute
requires a three-judge court in order to restrain the enforcement
of a state statute "upon the ground of the unconstitutionality of
such statute." Since all federal actions to enjoin a state
enactment rest ultimately on the Supremacy Clause, [
Footnote 24] the words "upon the ground of
the unconstitutionality of such statute" would appear to be
superfluous unless they are read to exclude some types of such
injunctive suits. [
Footnote
25] For a simple provision prohibiting the restraint of the
enforcement of any state statute except by a three-judge court
would manifestly have sufficed to embrace every such suit, whatever
its particular constitutional ground. It is thus quite permissible
to read
Page 382 U. S. 127
the phrase in question as one of limitation, signifying a
congressional purpose to confine the three-judge court requirement
to injunction suits depending directly upon a substantive provision
of the Constitution, leaving cases of conflict with a federal
statute (or treaty) to follow their normal course in a single-judge
court. We do not suggest that this reading of § 2281 is compelled.
We do say, however, that it is an entirely appropriate reading, and
one that is supported by all the precedents in this Court until
Kesler, and by sound policy considerations.
An examination of the origins of the three-judge procedure does
not suggest what the legislators would have thought about this
particular problem, but it does show quite clearly what sort of
cases were of concern to them. Their ire was aroused by the
frequent grants of injunctions against the enforcement of
progressive state regulatory legislation, usually on substantive
due process grounds. (
See pp.
382 U. S.
116-119,
supra.) Requiring the collective
judgment of three judges and accelerating appeals to this Court
were designed to safeguard important state interests. In contrast,
a case involving an alleged incompatibility between state and
federal statutes, such as the litigation before us, involves more
confining legal analysis, and can hardly be thought to raise the
worrisome possibilities that economic or political predilections
will find their way into a judgment. Moreover, those who enacted
the three-judge court statute should not be deemed to have been
insensitive to the circumstance that single-judge decisions in
conflict and preemption cases were always subject to the corrective
power of Congress, whereas a "constitutional" decision by such a
judge would be beyond that ready means of correction, and could be
dealt with only by constitutional amendment. The purpose of § 2281
to provide greater restraint and dignity at the district court
level cannot well be thought generally applicable to cases that
involve conflicts
Page 382 U. S. 128
between state and federal statutes, in this instance determining
whether the Department of Agriculture's regulations, as applied to
the labeling of total net weight on frozen stuffed turkeys,
necessarily renders invalid a New York statute requiring a
supplemental net weight figure which excludes the stuffing.
Our decision that three-judge courts are not required in
Supremacy Clause cases involving only federal-state statutory
conflicts, in addition to being most consistent with the statute's
structure, with pre-
Kesler precedent, and with the
section's historical purpose, is buttressed by important
considerations of judicial administration. As Mr. Justice
Frankfurter observed in
Florida Lime & Avocado Growers,
Inc. v. Jacobsen, 362 U. S. 73,
362 U. S. 92-93
(dissenting opinion):
"[T]he convening of a three-judge trial court makes for
dislocation of the normal structure and functioning of the lower
federal courts, particularly in the vast non-metropolitan regions,
and direct review of District Court judgments by this Court not
only expands this Court's obligatory jurisdiction, but contradicts
the dominant principle of having this Court review decisions only
after they have gone through two judicial sieves. . . ."
Although the number of three-judge determinations each year
should not be exaggerated, [
Footnote 26] this Court's concern for efficient operation
of the lower federal courts persuades us to return to the
Buder-Branford-Case rule,
Page 382 U. S. 129
thereby conforming with the constrictive view of the three-judge
jurisdiction which this Court has traditionally taken.
Ex parte
Collins, 277 U. S. 565;
Oklahoma Gas Elec. Co. v. Oklahoma Packing Co.,
292 U. S. 386;
Rorick v. Board of Commissioners, 307 U.
S. 208;
Phillips v. United States, 312 U.
S. 246.
We hold, therefore, that this appeal is not properly before us
under 28 U.S.C. § 1253, and that appellate review lies in the Court
of Appeals, where appellants' alternative appeal is now pending.
The appeal is dismissed for lack of jurisdiction.
It is so ordered.
[
Footnote 1]
Section 457(b) declares:
"The use of any written, printed or graphic matter upon or
accompanying any poultry product inspected or required to be
inspected pursuant to the provisions of this chapter or the
container thereof which is false or misleading in any particular is
prohibited."
Section 458(d) prohibits "Using in commerce, or in a designated
major consuming area, a false or misleading label on any poultry
product."
The Secretary of Agriculture is authorized by § 463 to issue
regulations. 7 CFR § 81.125 requires containers to bear "approved
labels"; § 81.130(a)(3) declares that labels must include the net
weight of the contents, and that
"The net weight marked on containers of poultry products shall
be the net weight of the poultry products, and shall not include
the weights of the wet or dry packaging materials and giblet
wrapping materials."
[
Footnote 2]
Section 193-3 provides:
"All food and food products offered for sale at retail and not
in containers shall be sold or offered for sale by net weight,
standard measure or numerical count under such regulations as may
be prescribed by the commissioner."
Net weight was not defined in the regulation, 1 NYCRR § 221.40
(now § 221.9(c)), but
"[t]he Director of the Bureau of Weights and Measures of the
Department testified that he interpreted the regulation, as applied
to stuffed turkeys, to require statement of the net weight both of
the unstuffed and of the stuffed bird, and that, when asked, he so
advised local sealers of weights and measures."
Swift & Co. v. Wickham, 230 F.
Supp. 398, 401 (1964).
[
Footnote 3]
The court below rejected appellants' Commerce Clause and
Fourteenth Amendment arguments, held that there had been no federal
preemption of this field of regulation, and, though implying
strongly that the New York labeling requirements did not conflict
with federal requirements, held that this question should first be
passed upon at a higher federal administrative level.
[
Footnote 4]
The three-judge court dismissed the complaint, "certifying, out
of abundant caution," that the original district judge, also a
member of the three-judge panel, "individually arrived at the same
conclusion." 230 F. Supp. at 410. This procedure for minimizing
prejudice to litigants when the jurisdiction of a three-judge court
is unclear has been used before,
see Query v. United
States, 316 U. S. 486.
[
Footnote 5]
Mr. Justice Whittaker took no part in the decision of the
case.
[
Footnote 6]
MR. JUSTICE BRENNAN and the present writer were included in the
Kesler majority.
[
Footnote 7]
Act of June 18, 1910, c. 309, § 17, 36 Stat. 557.
[
Footnote 8]
See Currie, The Three-Judge District Court in
Constitutional Litigation, 32 U.Chi.L.Rev. 1, 3-9 (1964);
Hutcheson, A Case for Three Judges, 47 Harv.L.Rev. 795 (1934);
Warren, Federal and State Court Interference, 43 Harv.L.Rev. 345
(1930). For more contemporary accounts
see, e.g., Baldwin,
Presidential Address: The Progressive Unfolding of the Powers of
the United States, VI Am.Pol.Sci.Rev. 1, 8-9 (1912); Scott, The
Increased Control of State Activities by the Federal Courts, III
Am.Pol.Sci.Rev. 347 (1909). Although various types of state
legislation were being challenged in injunctive suits,
see
Lockwood, Maw, and Rosenberry, The Use of the Federal Injunction in
Constitutional Litigation, 43 Harv.L.Rev. 426 (1930), most numerous
and prominent were the railroad cases. Senator Overman noted
that
". . . nine out of ten of the cases where application for an
injunction has been made to test the constitutionality of state
statutes have been railroad cases."
45 Cong.Rec. 7254 (1910).
[
Footnote 9]
E.g., Spooner v. McConnell, 22 Fed.Cas. 939 (No. 13245)
(1838).
[
Footnote 10]
See S.J. Buck, The Granger Movement, esp. 194-214,
231-237 (1913); Jackson, The Struggle for Judicial Supremacy 48-68
(1949); 2 Warren, The Supreme Court in United States History
574-599 (1935). For the related story of the use of the equity
power in the labor field,
see Frankfurter and Greene, The
Labor Injunction (1930).
[
Footnote 11]
See Hutcheson,
supra, at 803-804.
[
Footnote 12]
See, e.g., 45 Cong.Rec. 7253 (1910) (remarks of Senator
Crawford). Although some litigation of this sort dragged on for as
much as five years,
ibid., it is not clear that most state
courts were any more expeditious,
see Lilienthal, The
Federal Courts and State Regulation of Public Utilities, 43
Harv.L.Rev. 379, 417 and n. 176 (1930).
[
Footnote 13]
Senator Overman was probably referring to
Southern R. Co. v.
McNeill, 155 F. 756 (1907). There, after an injunction had
been sustained by the Circuit Court, the Governor publicly urged
state officials to ignore it. The railway complained to the Court
that
"these attacks on the part of the Governor and state officials
against the company and its agents . . . had the effect of
demoralizing the servants, agents, and employes of the company to
such an extent as to render it well nigh impossible for complainant
to properly discharge the duties which it owed the public. . .
."
Id. at 790-791.
[
Footnote 14]
The procedure was extended to cover challenges to orders of
state administrative commissions in 1913, 37 Stat. 1013, 28 U.S.C.
§ 2281, and, in 1925, suits for permanent injunctions were brought
within its purview, 43 Stat. 938, 28 U.S.C. § 2281. Three-judge
district courts are also required in certain suits arising under
federal law.
See Note, The Three-Judge District Court:
Scope and Procedure Under Section 2281, 77 Harv.L.Rev. 299, 300-301
and n.19 (1963).
[
Footnote 15]
See Hutcheson,
supra, at 800-801. Senator
Crawford of South Dakota told the Congress that, when his State
Legislature was debating a maximum rate law, the railway companies
had already prepared motions for injunctions:
"The statute passed, and was presented to the governor for his
signature, and, in less than an hour after he had signed the bill
and it was filed in the office of the secretary of state, a
restraining order came by telegraph from a United States judge,
enjoining the governor and the attorney general and all the
officers in the State from proceeding to enforce that statute."
45 Cong.Rec. 7252 (1910).
[
Footnote 16]
See id. at 7256 (remarks of Senator Crawford);
note 12 supra.
[
Footnote 17]
This basic rule has been reiterated in other familiar cases
where the facts did not require its application.
See Query v.
United States, 316 U. S. 486,
where, however, a three-judge court was found necessary because
other not insubstantial constitutional claims had been clearly
asserted. In
Florida Lime & Avocado Growers, Inc. v.
Jacobsen, 362 U. S. 73, the
majority held that, if a state statute is sought to be enjoined on
constitutional grounds (Commerce Clause, Equal Protection), it did
not matter that a "nonconstitutional" ground (preemption by the
Federal Agricultural Marketing Agreement Act) was also asserted.
Mr. Justice Frankfurter dissented, reasoning that the three-judge
procedure should be read narrowly, and that the mere availability
of a "nonconstitutional" basis for enjoining the state statute
should give jurisdiction to a single judge. Both majority and
dissent assumed that an attack upon a state enactment on the ground
that it was inconsistent with a federal statute was such a
"nonconstitutional" ground.
[
Footnote 18]
None of these cases can be read to suggest that the result
depends on whether or not the complaint specifically invokes the
Supremacy Clause, for that clause is the inevitable underpinning
for the striking down of a state enactment which is inconsistent
with federal law.
See the quotation from
Bransford,
supra, p.
382 U. S. 121,
a case in which the Supremacy Clause was not invoked in the
complaint.
See also the discussion of
Ex parte Buder,
supra, pp.
382 U. S.
120-121. Nor do any of these cases suggest that the
issue turns on the amount of statutory construction involved,
whether large, small, or simply of the character that entails
laying the alleged conflicting statutes side by side.
[
Footnote 19]
In dissent, it was stated that the
Kesler opinion
"refutes the very test which it establishes." 369 U.S. at
369 U. S. 177
(dissenting opinion of THE CHIEF JUSTICE). In addition, three
Justices dissented in whole or in part from the conclusions derived
from this statutory analysis.
[
Footnote 20]
See Currie,
supra, at 61-64 (1964); Note, 77
Harv.L.Rev. 299, 313-315 (1963); Note, 49 Va.L.Rev. 538, 553-555
(1963) 76 Harv.L.Rev. 168 (1962); 15 Stan.L.Rev. 565 (1963); 1962
U.Ill.L.F. 467; 111 U.Pa.L.Rev. 113 (1962).
[
Footnote 21]
See Borden Co. v. Liddy, 309 F.2d 871;
American
Travelers Club, Inc. v. Hostetter, 219 F. Supp.
95, 102, n. 7.
[
Footnote 22]
See, in addition to the case before us,
Bartlett
Co. v. State Corp. Comm'n of Kansas, 223 F.
Supp. 975.
[
Footnote 23]
"Neither the language of § 2281 nor the purpose which gave rise
to it affords the remotest reason for carving out an unfrivolous
claim of unconstitutionality because of the Supremacy Clause from
the comprehensive language of § 2281."
369 U.S. at
369 U. S.
156.
[
Footnote 24]
Art. VI, cl. 2.
"This Constitution, and the Laws of the United States which
shall be made in Pursuance thereof, and all Treaties made, or which
shall be made, under the Authority of the United States, shall be
the supreme Law of the Land, and the Judges in every State shall be
bound thereby, any Thing in the Constitution or Laws of any State
to the Contrary notwithstanding."
[
Footnote 25]
The "unconstitutionality" clause of § 2281 can hardly be thought
to encompass the voiding of a state statute for inconsistency with
the state constitution.
Cf. Florida Lime & Avocado Growers,
Inc. v. Jacobsen, 362 U. S. 73,
362 U. S.
80.
[
Footnote 26]
The statistics are summarized in Note, 77 Harv.L.Rev. 299,
303-305 (1963); Note, 72 Yale L.J. 1646, 1654-1659 (1963). The most
recent figures show that, out of the 11,485 trials completed in
district courts in fiscal 1965, only 147 were heard by three-judge
courts. Of these, 60 dealt with I.C.C. regulations, 35 with civil
rights, and only 52 with state or local law. 1965 Dir. Adm. Off.
U.S. Courts Ann. Rep. II-25, II-28.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK and MR. JUSTICE
CLARK concur, dissenting.
Less than four years ago, this Court decided that a three-judge
district court was required in suits brought under 28 U.S.C. §
2281, even though the alleged "ground of the unconstitutionality"
of the challenged statute was based upon a conflict between state
and federal statutes.
Kesler v. Department of Public
Safety, 369 U. S. 153.
A state statute may violate the Equal Protection Clause of the
Fourteenth Amendment or the Due Process Clause or some other
express provision of the Constitution. If so, a three-judge court
is plainly required by 28 U.S.C. § 2281. But the issue of the
"unconstitutionality" of a state statute can be raised as clearly
by a conflict between it and an Act of Congress as by a conflict
between it and a provision of the Constitution. The Supremacy
Clause, contained in Art. VI, cl. 2, of the Constitution, states as
much in clear language:
"This Constitution, and the Laws of the United States which
shall be made in Pursuance thereof . . . shall be the supreme Law
of the Land, and the
Page 382 U. S. 130
Judges in every State shall be bound thereby, any Thing in the
Constitution or Laws of any State to the Contrary
notwithstanding."
An issue of the "unconstitutionality" of a state statute is
therefore presented whether the conflict is between a provision of
the Constitution and a state enactment or between the latter and an
Act of Congress. What Senator Overman, author of the three-judge
provision, said of it in 1910 is as relevant to enjoining a state
law on the ground of federal preemption as it is to enjoining it
because it violates the Fourteenth Amendment:
"The point is, this amendment is for peace and good order in the
State. Whenever one judge stands up in a State and enjoins the
governor and the attorney general, the people resent it, and public
sentiment is stirred, as it was in my State, when there was almost
a rebellion, whereas, if three judges declare that a state statute
is unconstitutional, the people would rest easy under it. But let
one little judge stand up against the whole State, and you find the
people of the State rising up in rebellion. The whole purpose of
the proposed statute is for peace and good order among the people
of the States."
45 Cong.Rec. 7256.
Some of the most heated controversies between State and Nation
which this Court has supervised have involved questions whether
there was a conflict between a state statute and a federal one or
whether a federal Act was so inclusive as to preempt state action
in the particular area. One of the earliest and most tumultuous was
Cohens v.
Virginia, 6 Wheat. 264,
19 U. S. 440,
where the alleged unconstitutionality of a Virginia law was based
on the argument that an Act of Congress, authorizing a lottery in
the District of Columbia, barred Virginia from making it a criminal
offense to sell lottery
Page 382 U. S. 131
tickets within that State. The protest from the States was
vociferous, [
Footnote 2/1] even
though the Court, in the end, construed the federal Act to keep it
from operating in Virginia.
Id. at
19 U. S. 447. I
therefore see no difference between a charge of
"unconstitutionality" of a state statute whether the conflict be
between it and the Constitution or between it and a federal law.
Neither the language of the Supremacy Clause nor reason nor history
makes any difference plain.
Preemption or conflict of a state law with a federal one is a
recurring theme [
Footnote 2/2]
arising in various contexts. The storm against
Cohens v.
Virginia was a protest against this Court's acting as referee
in a federal-state contest involving preemption or a conflict
between the
Page 382 U. S. 132
laws of the two regimes. Congress has recently been concerned
with the problem in another aspect of the matter [
Footnote 2/3] when efforts were made to curb the
doctrine of preemption by establishing standards for an
interpretation of an Act of Congress. [
Footnote 2/4] The three-judge court is only another
facet of the self-same problem.
The history of 28 U.S.C. § 2281, as related by the Court, speaks
of the concern of Congress over the power
Page 382 U. S. 133
of one judge to bring a halt to an entire state regulatory
scheme. That can -- and will hereafter -- happen in all cases of
preemption or conflict where the Supremacy Clause is thought to
require state policy to give way. A fairly recent example is
Cloverleaf Co. v. Patterson, 315 U.
S. 148, where a federal court injunction in a preemption
case suspended Alabama's program for control of renovated butter --
a demonstrably important health measure. The Court, in
Florida
Lime Growers v. Jacobsen, 362 U. S. 73, where
one of the issues was preemption or conflict between two statutory
systems, emphasized that the interest of the States in being free
from such injunctive interference at the instance of a single judge
outweighed the additional burdens that such a rule imposed on the
federal court system. On reflection, I think that result better
reflects congressional policy even though, as in
Cohens v.
Virginia, the end result is only a matter of statutory
construction.
On the basis of virtually no experience in applying that
interpretation of the statute, a majority has now decided that the
rule of
Kesler is "unworkable" and, therefore, that our
previous interpretation of the statute must have been incorrect. I
regret that I am unable to join in that decision. My objection is
not that the Court has not given
Kesler "a more respectful
burial,"
Gideon v. Wainwright, 372 U.
S. 335,
372 U. S. 349
(concurring opinion), but that the Court has engaged in unwarranted
infanticide.
Stare decisis is no immutable principle. [
Footnote 2/5] There are many occasions when
this Court has overturned a prior decision, especially in matters
involving an interpretation of the Constitution or where the
problem of statutory construction had constitutional overtones.
An error in interpreting a federal statute may be easily
remedied. If this Court has failed to perceive the intention
Page 382 U. S. 134
of Congress, or has interpreted a statute in such a manner as to
thwart the legislative purpose, Congress may change it. The lessons
of experience are not learned by judges alone.
I am unable to find a justification for overturning a decision
of this Court interpreting this Act of Congress, announced only on
March 26, 1962.
If the Court were able to show that our decision in
Kesler had thrown the lower courts into chaos, a fair case
for its demise might be made out. The Court calls the rule
"unworkable." But it is not enough to attach that label. The Court
broadly asserts that "lower courts have quite evidently sought to
avoid dealing with its [
Kesler's] application or have
interpreted it with uncertainty." For this proposition, only three
cases (in addition to the instant case) are cited. The Court's
failure to provide more compelling documentation for its indictment
of
Kesler is not the result of less than meticulous
scholarship, for, so far as I have been able to discover, the truth
of the matter is that there are no cases (not even the three cited)
even remotely warranting the conclusion that
Kesler is
"unworkable."
Kesler was an attempt to harmonize our earlier cases.
If the
Kesler test is "unworkable," as the Court asserts,
we should nonetheless accept its basic premise:
"Neither the language of § 2281 nor the purpose which gave rise
to it affords the remotest reason for carving out an unfrivolous
claim of unconstitutionality because of the Supremacy Clause from
the comprehensive language of § 2281."
369 U.S. at
369 U. S. 156.
If there is overruling to be done, we should overrule
Ex parte
Buder, 271 U. S. 461, and
Ex parte Bransford, 310 U. S. 354.
That the ground of unconstitutionality in many so-called
Supremacy Clause cases is found only in the asserted conflict
between federal and state statutes is,
Page 382 U. S. 135
as I have said, no basis for distinguishing that class of cases
from others in which three-judge courts are plainly required. While
courts are, strictly speaking, engaging in statutory construction
in such cases, the task of adjudication is much the same as in what
all would concede to be constitutional adjudication. Though the
purpose of Congress is the final touchstone, the interests which
must be taken into account in either case are much the same, as
Cohens v. Virginia eloquently demonstrates.
The Court has decided, on no more than the gloomy predictions
contained in a handful of law review articles, that
Kesler
would inevitably produce chaos in the federal courts, that the rule
announced there is "unworkable." Those predictions have plainly not
been borne out. If difficulties arise, Congress can cure them.
Until Congress acts, I would let
Kesler stand.
I therefore believe that a three-judge court was properly
convened and that we should decide this appeal on the merits.
[
Footnote 2/1]
See 1 Warren, The Supreme Court in United States
History, p. 552
et seq. (1928).
"The
Richmond Enquirer spoke of the opinion,'so
important in its consequences and so obnoxious in its doctrines,'
and said that 'the very title of the case is enough to stir one's
blood.' It feared that"
"the Judiciary power, with a foot as noiseless as time and a
spirit as greedy as the grave, is sweeping to their destruction the
rights of the States. . . . These encroachments have increased, are
increasing, and ought to be diminished,"
"and it advocated a repeal of the fatal Section of the Judiciary
Act as 'the most advisable and constitutional remedy for the evil.'
A leading Ohio paper spoke of"
"the alarming progress of the Supreme Court in subverting the
Federalist principles of the Constitution and introducing on their
ruins a mighty consolidated empire fitted for the sceptre of a
great monarch,"
"and it continued:"
"That the whole tenor of their decisions, when State-Rights have
been involved, have had a direct tendency to reduce our governors
to the condition of mere provincial satraps, and that a silent
acquiescence in these decisions will bring us to this lamentable
result, is to us as clear as mathematical demonstration."
Id. at 552-553.
[
Footnote 2/2]
Thus, the dissent in
Cloverleaf Co. v. Patterson,
315 U. S. 148,
315 U. S. 179,
called that decision in favor of preemption "purely destructive
legislation."
And see Rice v. Santa Fe Elevator Corp.,
331 U. S. 218;
Campbell v. Hussey, 368 U. S. 297.
Cf. Hostetter v. Idlewild Liquor Corp., 377 U.
S. 324.
[
Footnote 2/3]
H.R. 3, 88th Cong., 1st Sess., in material part provided:
"No Act of Congress shall be construed as indicating an intent
on the part of Congress to occupy the field in which such Act
operates, to the exclusion of all State laws on the same subject
matter, unless such Act contains an express provision to that
effect, or unless there is a direct and positive conflict between
such Act and a State law so that the two cannot be reconciled or
consistently stand together."
The first version of the bill was introduced in 1956. The House
Committee on the Judiciary made numerous changes, limiting its
application to the subject of subversion, and reported the bill out
with a "do pass" recommendation. H.R.Rep. No. 2576, 84th Cong., 2d
Sess. The Senate version, S. 3143, was not so narrowed in
Committee. S.Rep. No. 2230, 84th Cong., 2d Sess. The bill was not
passed in either the House or the Senate.
H.R. 3 was again introduced in the Eighty-fifth Congress. The
Judiciary Committee again recommended that the bill "do pass," but
this time did not narrow its scope to the subject of subversion.
See H.R.Rep. No. 1878, 85th Cong., 2d Sess. It was passed
by the House on July 17, 1958.
H.R. 3, having once again been approved by the Judiciary
Committee, H.R.Rep. No. 422, 86th Cong., 1st Sess., was approved by
the House on June 24, 1959.
In the Eighty-seventh Congress, H.R. 3 was favorably reported
out by the Judiciary Committee. H.R.Rep. No. 1820, 87th Cong., 2d
Sess., but was not acted upon by the full House.
[
Footnote 2/4]
The concern of Congress in this chapter of federal-state
relations did not concern the three-judge court problem, but the
broader aspects envisaged by such cases as
Pennsylvania v.
Nelson, 350 U. S. 497,
Phillips Petroleum Co. v. Wisconsin, 347 U.
S. 672,
Slochower v. Board of Education,
350 U. S. 551,
Railway Employes v. Hanson, 351 U.
S. 225, and
Cloverleaf Co. v. Patterson,
315 U. S. 148.
See H.R.Rep. No. 1820, 87th Cong., 2d Sess., p. 3
et
seq.
[
Footnote 2/5]
See Radin, Case Law and
Stare Decisis, 33
Col.L.Rev.199 (1933).