UNITED STATES SUPREME COURT DECISIONS ON-LINE

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. clubjuris

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 clubjuris

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.