Appellee sued in a three-judge District Court to enjoin
enforcement of an order issued by appellant state Commission on the
ground of conflict with a federal statute, which appellant
contended was unconstitutional. The injunction was granted.
Held:
1. Under
Swift Co. v. Wickham, ante, p.
382 U. S. 111, a
three-judge tribunal was not required by 28 U.S.C. § 2281 for
state order-federal statute conflict.
2. Nor does the defense of unconstitutionality of the federal
statute require a three-judge court under 28 U.S.C. § 2282,
which applies only where an injunction is sought to restrain the
enforcement of an Act of Congress.
Garment Workers v. Donnelly
Co., 304 U. S. 243,
304 U. S.
250.
3. Since the direct appeal to this Court, taken prior to the
Wickham decision, must be dismissed for lack of
jurisdiction, the judgment is vacated and remanded to the District
Court to enter a fresh decree from which a timely appeal may be
taken to the Court of Appeals.
240 F.
Supp. 233 vacated and remanded.
PER CURIAM.
In the three-judge District Court from which this appeal comes
to us, the Pennsylvania Railroad Company sued to enjoin the
enforcement of a duly promulgated order of the Pennsylvania Public
Utility Commission on the sole ground that the order conflicted
with a federal statute. The Commission, among other defenses,
contended
Page 382 U. S. 282
that the federal statute was unconstitutional, but the District
Court decided the case in favor of the railroad and issued an
appropriate injunction.
240 F.
Supp. 233.
It follows from our recent decision in
Swift & Co. v.
Wickham, ante, p.
382 U. S. 111,
that the injunction sought by the railroad, being based on
incompatibility between the state order and the federal statute,
was not grounded in the "unconstitutionality" of a state measure so
as to require a three-judge tribunal under 28 U.S.C. § 2281
(1964 ed.). Nor is § 2282, requiring such a tribunal in order
to enjoin "any Act of Congress for repugnance to the Constitution,"
invoked by the Commission's defense that the federal statute is
unconstitutional; it is settled that this provision
"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."
Garment Workers v. Donnelly Garment Co., 304 U.
S. 243,
304 U. S.
250.
Because a three-judge court was not required to adjudicate this
suit, this Court has no jurisdiction under 28 U.S.C. § 1253
(1964 ed.) to entertain a direct appeal. It does not appear from
the record that the Commission lodged a protective appeal in the
Court of Appeals, and the time to do so has almost certainly
expired. The appeal to this Court occurred before
Swift &
Co. v. Wickham, supra, was decided, and there is no reason why
the Commission should be deprived of appellate review. In
accordance with precedent, we vacate the judgment below and remand
the case to the District Court so that it may enter a fresh decree
from which a timely appeal may be taken to the Court of Appeals.
See Phillips v. United States, 312 U.
S. 246,
312 U. S. 254.
It is so ordered.
