Bowen, Alfred W.

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Federal Courts--Three-Judge Statutory Courts under Sec. 266 of the Judicial Code--Powers of the Single Judge

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University of Minnesota Law SchoolScholarship RepositoryMinnesota Law Review1944Federal Courts--Three-Judge Statutory Courtsunder Sec. 266 of the Judicial Code--Powers of theSingle JudgeAlfred W. BowenFollow this and additional works at: https://scholarship.law.umn.edu/mlrPart of the Law CommonsThis Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Minnesota LawReview collection by an authorized administrator of the Scholarship Repository. For more information, please contact lenzx009@umn.edu.Recommended CitationBowen, Alfred W., "Federal Courts--Three-Judge Statutory Courts under Sec. 266 of the Judicial Code--Powers of the Single Judge"(1944). Minnesota Law Review. 818.https://scholarship.law.umn.edu/mlr/818Minnesota Law ReviewJournal of the State Bar Assocatwn.Published monthly, December to June, inclusive, by the Faculty and Stu-dents of the Law School, University of Minnesota.Subscription Price $3.50 per annum. One dollar per numberHENRY ROTTSCHAEFER --------- Editor-in-ChiefSTEFAN A. RIESENFELD -------- Associate EditorHENRY L. 2NCCLINTOCK - Associate Editor, Book ReviewsWILBUR H. CHERRY -------- Business ManagerSTUDENT EDITORIAL BOARDJOHN W MoorvLEONARD SCHANFIELDFor THE MINNESOTA STATE BAR ASSOCIATIONHORACE VAN VALKENBURG, Secretary -F------ EditorNOTESFEDERAL COURTS-THREE-JUDGE STATUTORY COURTS UNDERSEC. 266 OF THE JUDICIAL CODE-POWERS OF'THE SINGLE JUDGE.-On April 6, 1942, Congress by enacting Chapter 210, Sec. 3, 56Stat. 199, 28 U. S. C. A., Sec. 792. again dealt with the powersof single federal judges in cases falling within the provisions ofSec. 266 of the judicial code." Sec. 266 requires the presence ofthree federal judges, one of whom must be a circuit judge, in equitysuits where an interlocutory injunction is sought on constitutionalgrounds in the federal district courts to restrain state officials fromenforcing a state statute or order of a state administrative tribunal.-The powers of a single district judge in cases falling within thesection have presented a troublesome question. Prior to the caseof Ex parte Poresky, although it was well settled that a singlejudge could not dismiss such a case on the merits, there was nodecision covering the matter of dismissal for lack of jurisdiction.'In that case the Supreme Court declared that the smgle, judge'Judicial Code, Sec. 266, as amended, 28 U. S. C. A., Sec. 380.2See: Bowen, When Are Three Federal Judges Required? 16 Mixxt-soYA LAw REvIEW 1. See also 18 M. L. R. 729; 19 V.. L. R. 92.3Ex parte Poresky (1933) 290 U. S. 301, 54 S. Ct. 3, 78 L. Ed. 152, 18M. L. R. 729.4 1t had been suggested on principle that tie single judge could not dis-miss any more for lack of jurisdiction than on the merits; 16 M. L. R. 1,23-24.MINNESOTA LAW REVIEWmight dismiss for lack of jurisdiction. In a subsequent decision,California Water Service Co. v. City of Redding," the SupremeCourt went a step further to hold that it was the "duty" of thesingle district judge to scrutinize the bill of' complaint and toascertain whether a substantial federal question is presented.These declarations of the Supreme Court, however, wouldseem now to have been overruled by Congress in the Act of 1942,amending 28 U. S. C. A., Sec. 792. That section covers all sitta-tions where statutory three-judge courts are required and definesin detail the powers and limitations on single judges. Briefly sunt-marized, the single judge is authorized to take specified action"subject, however, to review by the statutory court when laterconvened. Other language in the section expressly forbids thesingle judge from doing other things, among which is, to disnissthe suit.The limitation against dismissal is not qualified' and literallyprevents a single judge dismissing the suit regardless of thegrounds, whether on the merits, or for want of a substantial federalquestion as defined and sustained by the Supreme Court, or forlack of good faith.It may well be that in practice and by judicial construction thenew law will be so shaped as to permit a single judge to dismissthree-judge cases in instances of clear fraud, oppression, or abuseof process. In view of the clear language of the statute, it appearsunlikely that single judges will undertake to dismiss on juris-dictional grounds.Alfred W. Bowen.5(1938) 304 U. S. 252, 254, 58 S. Ct. 865, 866, 82 L. Ed. 1323.GThe full text of the section, 28 U. S. C. A., Sec. 792, follows Three-judge district court actions for interlocutory injunction and final hearing;powers of single judge.In any action in a district court wherein the action of three judges isrequired for the hearing and determination of an application for interlocutoryinjunction and for the final hearing by reason of the provisions of sections47, 380, or 380a of this title, or section 28 of Title 15 and section 44 of Title49, as amended by section 1 of the Act of April 6, 1942, chapter 210, anyone of such three judges may perform all functions, conduct all proceedings.except the trial of such action, and enter all orders required or permittedby the Rules of Civil Procedure for the District Courts of the United Statesin effect at the time, provided such single judge shall not appoint, or ordera reference to a master, or hear and determine any application for, or va-cation of, an interlocutory injunction, or dismiss the action, or enter a suln-mary or final judgment on all or any part of the action. Provided, how-ever, that any action of a single judge hereby permitted shall be subjectto review at any time prior to final hearing by the court as constituted forfinal hearing, on application of any party or by order of such court on itsown motion. April 6, 1942, c. 210, Sec. 3, 56 Stat. 199.7See footnote 6, supra.

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Federal Courts--Three-Judge Statutory Courts under Sec. 266 of the Judicial Code--Powers of the Single Judge

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