$2282. Query whether §2282 requires a three-judge court in a suit to enjoin enforcement on constitutional grounds of a statute affecting only the District of Columbia. Ex parte Cogdell, 342 U. S. 163. Here, as under $2281 discussed immediately above, the constitutional question raised in the complaint must be a substantial one (Jameson & Co. v. Morgenthau, 307 U. S. 171; California Water Service Co. v. Redding, 304 U. S. 252), and an initial showing of jurisdiction in the district court may be required. Osage Indians v. United States, 45 F. Supp. 179 (D.D.C.) and cases cited. Once these conditions are satisfied, however, the jurisdiction of the three-judge court, as well as of the Supreme Court on appeal, covers all the other issues involved, even including questions of local law (California Water Service Co. v. Redding, supra). But unlike §2281, which includes certain attacks on state administrative orders (see pp. 2931, supra), §2282 does not apply to suits challenging the validity of federal administrative regulations or orders as such (Jameson & Co. v. Morgenthau, supra), but is confined to actions in which the constitutionality of a federal statute is assailed. An attack upon the validity of a statute as applied would doubtless be sufficient for the invocation of $2282. See p. 31, supra.

Section 2282 "does not provide for a case where the validity of an Act of Congress is merely drawn in question, albeit that question be decided, but only for a case where there is an application for an interlocutory or permanent injunction to restrain the enforcement of an Act of Congress." International Ladies' Garment Workers' Union v. Donnelly Garment Co., 304 U. S. 243, 250. In other words, it is not enough that the validity

The Osage opinion, which does not seem entirely clear, reviews the prior authorities, which do not seem entirely uniform.

In the Jameson case, the Court considered the allegation that the administrative order could not be enforced because the underlying statute was invalid, but not questions as to the legality of the administrative action itself.

of a federal statute be questioned as a matter of defense or in anticipation of a defense-although if, in any such suit to which the United States is a party, a single district judge holds a federal statute unconstitutional, a direct appeal to the Supreme Court would lie under $1252. The constitutional contention must be one of the bases for the application for the interlocutory or permanent injunction. It has been stated that a proceeding for what in substance is injunctive relief comes within the statute even though the suit is labeled as one for prohibition or mandamus or declaratory judgment.

A direct appeal to the Supreme Court may then be had in this type of case, pursuant to 28 U.S.C. §1253, from an order granting or denying an interlocutory or permanent injunction. An order dismissing the cause of action would, of course, fall within that category. See United Public Workers v. Mitchell, 330 U. S. 75; Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U. S. 752.

Suits to enjoin enforcement of orders of the Interstate Commerce Commission. Chapter 157 of the 1948 Code, 28 U.S.C. SS2321-2325, which is derived from the Urgent Deficiencies Act of 1913, provides for the use of a three-judge district court where an application is made for an "interlocutory or permanent injunction restraining the enforcement, operation or execution, in whole or in part, of any order of the Interstate Commerce Commission" ($2325) "other than for the payment of money or the collection of fines, penalties and forfeitures" ($2321).

Since a three-judge court is required in this type of proceeding, §1253 permits a direct appeal to the Supreme Court from a decree granting or denying an interlocutory or perman

8 Rolls-Royce Inc. v. Stimson, 56 F. Supp. 22 (D.D.C.)
United States v. 149 Gift Packages, 52 F. Supp. 993 (E.D.N.Y.).

ent injunction.10 And if a party is entitled to intervene as of right, the order denying leave to intervene is appealable to the Supreme Court. Brotherhood of Railroad Trainmen v. B. & O. R. Co., 331 U. S. 519; see also Sutphen Estates v. United States, 342 U. S. 19, 20. But as to Commission orders involving the payment of money, or the collection of fines, penalties and forfeitures, or the determination of reparations, any district court review must be by a single judge, with no right to direct appeal to the Supreme Court under the foregoing provisions. See 49 U.S.C. §§9, 16; United States v. Interstate Commerce Commission, 337 U. S. 426; see also United States v. Jones, 336 U. S. 641. Other limitations upon the jurisdiction of the three-judge courts are described in Rochester Tel. Corp. v. United States, 307 U. S. 125.

These provisions do not apply to appeals from orders of the Interstate Commerce Commission in railroad reorganizations; such cases are heard by one-judge district courts sitting in bankruptcy, and appealed to the courts of appeals. Chicago & N. W. Ry. Co. v. United States, 52 F. Supp. 65 (N.D. Ill), affirmed 320 U. S. 718.

Prior to 1951, the procedure for enjoining orders of the Interstate Commerce Commission had been made applicable by Congress to orders of certain other administrative agencies and officers. Three-judge district courts were thus required in suits to suspend orders of the Secretary of Agriculture under the Packers and Stockyards Act (7 U.S.C. §217), orders of the Secretary of Agriculture under the Perishable Agriculture Commodities Act (7 U.S.C. §499k), orders of the Federal Maritime Board or the Maritime Administration under §31 of

10 An interlocutory decree is appealable "because Congress, notwithstanding its interlocutory character, has made it appealable." United States v. United States Smelting Co., 339 U.S. 186, 199. The fact that no appeal is taken from an interlocutory injunction does not preclude taking an appeal from the final injunction. Ibid.

the Shipping Act of 1916 (46 U.S.C. §830), and orders of the Federal Communications Commission under §402 (a) of the Communications Act of 1934 (47 U.S.C. §402 (a)).

But on December 29, 1950, a new law became effective whereby courts of appeals are given "exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of, all final orders" of the foregoing agencies— but not including orders of the Interstate Commerce Commission." U.S.C. $1032. Orders of the courts of appeals granting or denying interlocutory injunctions are reviewable by the Supreme Court upon writ of certiorari pursuant to 28 U.S.C. §1254(1), provided application therefor is made within forty-five days after entry of such orders. 5 U.S.C. $1040. Final judgments of the courts of appeals are also subject to review by the Supreme Court upon writ of certiorari in accordance with 28 U.S.C. §1254(1) if application therefor is made within ninety days after the entry of judgment. 5 U.S.C. §1040.

The legislative history of this 1950 change indicates a desire to avoid the time-consuming procedures attaching to de novo review of these administrative orders by three-judge district

And "the provision for review of the Supreme Court in its discretion upon certiorari, as in the review of other cases from circuit courts of appeals, will save the members of the Supreme Court from wasting their energies on cases which are not important enough to call for their attention, and enable them to concentrate more fully upon cases which require their careful consideration. By allowing certiorari, the Court . . .

11 A similar proposal by the Judicial Conference of the United States for changing the method of review of Interstate Commerce Commission orders has not been enacted. See H.R. 5488 (81st Cong., 1949); H.R. 1468 and H.Rep. 1619 (80th Cong., 1948); Hearings before Subcommittee of House Committee on Judiciary on H.R. 1468, 1470 and 2271 (80th Cong.) and H.R. 2915 and 2916 (81st Cong.).

will not any longer be required automatically to hear cases which are not of a nature to merit its consideration." H.Rep. 2122, p. 4, and S.Rep. 2618, p. 5, accompanying H.R. 5487 (81st Cong., 2d Sess., 1950).

Considerations applicable to all three-judge court cases. Whether a particular case is one that does or does not fall within the three-judge court requirement is a jurisdictional question, and especially so as it relates to the jurisdiction of the Supreme Court to consider an appeal of the case under §1253. The Court is careful to insist upon full compliance with the statutory requirements in such situations. Thus it has held that, where a three-judge court is necessary, a single judge is without jurisdiction to dismiss the complaint on the merits or to grant or deny an interlocutory or permanent injunction or to do anything else which is not specifically authorized by §2284. Stratton v. St. Louis Southwestern R. Co., 282 U. S. 10, 15. Not even a quorum of two is empowered to do what must be done by three judges (Ayrshire Collieries Corp. v. United States, 331 U. S. 132) although, of course, the decision of three sitting judges may be by a majority of two. If a single judge, acting without jurisdiction, undertakes to enter an order such as one granting a permanent injunction, no appeal lies under $1253 to the Supreme Court inasmuch "as the statute plainly contemplates such a direct appeal only in the case of an order or decree entered by a court composed of three judges in accordance with the statutory requirement." Stratton v. St. Louis Southwestern R. Co., supra, 15-16. Moreover, no appeal lies to a court of appeals from an order thus entered by a district judge without authority, "for to sustain a review upon such an appeal would defeat the purpose of the statute by substituting a decree by a single judge and an appeal to the Circuit Court of Appeals for a decree by three judges and a direct appeal to this court." Id., 16.