When a single judge improperly declines to take steps leading to the convening of a three-judge district court, a party may apply to the Supreme Court pursuant to 28 U.S.C. §1651 for a writ of mandamus requiring the judge to initiate the procedure. Ex parte Collins, 277 U. S. 565; Stratton v. St. Louis Southwestern R. Co., supra. Like relief may also be had from the Court after a single judge enters an order unauthorized by the strict provisions of $2284. But if, instead, such an order is appealed to a court of appeals, which fails to correct the jurisdictional error, and review is then sought in the Supreme Court of the decision of the court of appeals, the Court will reverse the decree of the court of appeals and remand the case to that court with directions to dismiss the appeal for want of jurisdiction. The void order of the district judge should then be vacated by him and a three-judge court convened. Stratton v. St. Louis Southwestern R. Co., supra. In Query v. United States, 316 U. S. 486, 490-491, three judges signed the judgment but erroneously held that only a single judge had jurisdiction and that the appeal was to the court of appeals. Upon correcting the affirmance of this ruling by the latter court, the Supreme Court ordered the case remanded to the district court "for the entry of a fresh decree" since the time to appeal to the Supreme Court would otherwise have expired.

On the other hand, when a three-judge court is improperly convened and an appeal from its decree is taken directly to the Supreme Court under $1253, the Court has jurisdiction to take whatever action may be appropriate under the circumstances. so as to save the appellant his proper remedies. The improper participation of the two additional judges in the district court proceedings does not render the decree void. The order is still "the final order of a district court". Stainback v. Mo Hock Ke Lok Po, 336 U. S. 368, 381. The error only eliminates the jurisdictional basis for a direct appeal to the Supreme Court under

$1253. Gully v. Interstate Gas Co., 292 U. S. 16; Oklahoma Gas & Electric Co. v. Oklahoma Packing Co., 292 U. S. 386. Dismissal of the direct appeal by the latter court permits an appeal to a court of appeals if the time therefor has not expired. Public Service Commission v. Brashear Lines, 312 U. S. 621, 626. In Stainback v. Mo Hock Ke Lok Po, 336 U. S. 368, 380381, a precautionary appeal to a court of appeals taken simultaneously with a direct appeal to the Supreme Court was held to allow review by the court of appeals, and by the Supreme Court on certiorari to that court, upon the dismissal of the direct appeal to the Supreme Court. The Supreme Court may also reverse or vacate the decree and remand the case to the district court for further proceedings by a single judge independently of the three-judge requirement. See Jameson & Co. v. Morgenthau, 307 U. S. 171; International Ladies' Garment Workers' Union v. Donnelly Garment Co., 304 U. S. 243; Oklahoma Gas & Electric Co. v. Oklahoma Packing Co., supra. Exercise of this latter power is often appropriate where the time for an appeal to a court of appeals has expired, especially if such an expiration has occurred in circumstances under which a mere dismissal of the direct appeal to the Court would leave outstanding an injunction against the enforcement of a state

statute.

However, if there is a complete lack of jurisdiction in the district court, whether composed of one or three judges, the Supreme Court has power on a purported appeal under $1253 to reverse the decree of a three-judge court and remand the case with directions to dismiss the complaint for want of jurisdiction. Piedmont & Northern R. Co. v. United States, 280 U. S. 469. This power of the Court exists regardless of whether the three-judge court has entered a judgment for the plaintiff or the defendant. As long as a decree was entered on the merits, the Court has jurisdiction to reverse it and to order a dismissal

for want of jurisdiction. See Smallwood v. Gallardo, 275 U. S. 56, 62; Piedmont & Northern R. Co. v. United States, supra,

at 478.

The jurisdiction of the three-judge court, or of the Supreme Court on appeal, may be raised at any point in the proceeding. It may be raised for the first time when the case reaches the Supreme Court. United States v. Griffin, 303 U. S. 226. Or it can be raised by the Court on its own motion. Stratton v. St. Louis Southwestern R. Co., 282 U. S. 10.

C. Decisions of the Court of Claims

Certiorari

In 28 U.S.C. §1255 (1), it is provided that the Supreme Court may review cases in the Court of Claims by "writ of certiorari granted on petition of the United States or the claimant." The petition may be filed following a judgment by the Court of Claims as to the right to recover even though that court has reserved for further proceedings its determination as to the exact amount of damages. Caltex, Inc. v. United States, 100 F. Supp. 970, 980 (Ct. Cls.), reversed, 344 U. S. 149.

The cases over which the Court of Claims has jurisdiction are set forth at 28 U.S.C. §§1491-1505. To the extent that they call for the exercise of judicial power by that court, they are reviewable by the Supreme Court on certiorari under $1255 (1). One of the specified categories (§1492), however, calls on the Court of Claims for advisory opinions on matters referred to it by Congress, though the jurisdiction of the Court of Claims over such matters has been rendered doubtful by the recent designation of that tribunal as a constitutional rather than a legislative court. 28 U.S.C. §171, overruling Williams v. United States, 289 U.S. 553. In any event, the Supreme Court's appellate jurisdiction by way of certiorari cannot con

stitutionally extend to such cases, since the Supreme Court is a constitutional court, the jurisdiction of which is limited to justiciable cases and controversies. Muskrat v. United States, 219 U.S. 346.

Various special statutes have been enacted by Congress from time to time giving power to the Court of Claims to perform certain acts, some judicial in character and others administrative or legislative. See In re Sanborn, 148 U. S. 222; Northwestern Bands of Shoshone Indians v. United States, 324 U. S. 335. Here again, "its decisions rendered in its administrative capacity are not judicial acts, and their review, even though sanctioned by Congress, is not within the appellate jurisdiction of this Court." Pope v. United States, 323 U. S. 1, 13; and see Gordon v. United States, 2 Wall. 561, and views expressed by Chief Justice Taney in 117 U. S. 697.

Prior to 1939, review of Court of Claims decisions by the Supreme Court was confined to questions of law. United States v. Esnault-Pelterie, 303 U. S. 26. Indeed, the governing statute12 and Rule13 provided that the certified record should include the court's findings, but not "the evidence." In 1939 this restriction was removed. Act of May 22, 1939, 53 Stat. 752, 28 U.S.C. (1946 ed.) §288. The Supreme Court was authorized to review "in addition to other questions of law, errors assigned to the effect that there is a lack of substantial evidence to sustain a finding of fact; that an ultimate finding or findings are not sustained by the findings of evidentiary or primary facts; or that there is a failure to make any finding of fact on a material issue."

The Court of Claims was required to include in the papers certified, in addition to the findings, conclusion and judgment, "such other parts of the record as are material to the errors

12 Section 3 (b) of the Act of February 13, 1925, 43 Stat. 936, 939. 18 Former Supreme Court Rule 41 (4), 306 U.S. 721.

assigned, to be settled by the Court." Former Supreme Court Rule 41 was amended accordingly, so as to contain an identical requirement as to the contents of the record.

The effect of this change in the statute and Rules was to subject all matters decided by the Court of Claims, and not merely questions of law, to Supreme Court review. Just as in cases from United States courts of appeals, questions of fact were reviewable, and the evidence could be brought before the Supreme Court, although the procedure for doing so was quite different. The substantive scope of review of findings of fact was also different, since under the 1939 Act Court of Claims findings were subject to review under the substantial evidence rule applicable to findings of administrative bodies 15 and juries,16 and not the "clearly erroneous" rule applicable to district court findings.17

The 1948 codification of Title 28 U.S.C. eliminated all statutory provisions differentiating review of Court of Claims cases from review of decisions of the courts of appeals, except that the Supreme Court could not take a case from the Court of Claims before judgment.18 28 U.S.C. $1255. The Reviser's note to $1255 states that "Review under this section is unrestricted." Much of the language of the prior provision (28

14 Since 1939, the Supreme Court has looked to the evidence in cases coming from the Court of Claims, when the evidence was included in the record. United States v. Callahan Walker Co., 317 U. S. 56, 59; Marconi Wireless Co. v. United States, 320 U. S. 1, 44.

15 See Administrative Procedure Act, Section 10 (e), 60 Stat. 243, 5 U.S.C. $1009 (e); Stern, Review of Findings of Administrators, Judges, and Juries: A Comparative Analysis, 58 Harv. L. Rev. 70, 74-79 (1944).

16 National Labor Relations Board v. Columbian Co., 306 U. S. 292, 300; Galloway v. United States, 319 U. S. 372.

17 Federal Rule of Civil Procedure 52 (a).

18 Unlike courts of appeals, the Court of Claims is one of original jurisdiction. To transfer a case from it to the Supreme Court before judgment would seem to require the Court to exercise an original jurisdiction not contemplated by the Constitution.