Messrs. Willard P. Hall, C. F. Hutchings, and O. L. Miller for petitioner.
Messrs. Lewis W. Keplinger and Charles W. Trickett for respondents. [220 U.S. 539, 540]
Mr. Chief Justice White delivered the opinion of the court:
This is a proceeding in mandamus, in which relief is sought against a district judge, acting in a certain cause as a circuit judge for the district of Kansas, and also against the circuit court of the United States for the district of Kansas. To a rule to show cause, a return has been filed and the Kaw Valley Drainage District of Wyandotte County, Kansas, has also, by leave, answered the rule. The matter is now for decision upon a motion to make the rule absolute.
Summarily stated, the facts bearing upon the issue to be decided are as follows:
By 17 of the act creating the commerce court and amending the act to regulate commerce (act June 18, 1910, chap. 309, 36 Stat. at L. 557), provision was made as to the practice to be pursued in courts of the United States in cases where an interlocutory injunction is applied for to restrain the enforcement, operation, or execution of any statute of a state by restraining the action of any officer of such state in the enforcement or execution of such statute. While proceedings originally instituted in a state court of Kansas to condemn lands of the water company and others for the purpose of widening the Kansas river were pending on appeal in the circuit court of appeals for the eighth circuit, the legislature of Kansas, on January 28, 1911, enacted a statute which, in effect, authorized a summary appropriation of the lands affected by the pending condemnation suits, and directed the bringing by the attorney general of the state of an action, after such appropriation had been consummated, against the owners of the lands appropriated, 'to determine the ownership of the property, and to assess the value thereof and other damages for the taking of such portions of it as may belong to parties other than the public.' By 6 it was provided, [220 U.S. 539, 541] among other things, that upon a failure to satisfy the judgment rendered, 'the rights of the state to such land shall be devested, and the possession thereof shall revert to the former adjudicated owners, in which event compensation shall be awarded for any loss or damage occasioned by the temporary appropriation, and that the court shall render judgment therefor. . . .' A few days after the passage of this statute, the petitioner, a West Virginia corporation, commenced a suit in the circuit court of the United States for the district of Kansas against the Kaw Valley Drainage District of Wyandotte County Kansas, and the individuals composing the board of directors of said drainage district, all averred to be citizens and residents of the district where the suit was brought. The bill prayed relief by injunction, temporary and permanent, restraining the defendants from a threatened taking possession of the lands of the petitioner under the act of January 28, 1911, upon the ground that the statute was repugnant to the Constitution of the United States. Thereafter, on February 8, 1911, District Judge McPherson, acting as circuit judge, issued a restraining order in the cause. The attention of the judge was called by the defendants to the provisions of 17 of the act of Congress heretofore referred to, and request was made that two other judges, one of whom should be a circuit judge or a justice of the Supreme Court, should be called to assist in the hearing and determination of an application which was pending for a temporary injunction. It was, however, ruled that the provisions of such section merely deprived a single judge of the power to grant a temporary injunction, and that a court might be held by one judge for the purpose of decreeing the assailed statute to be constitutional, and refusing to enjoin its enforcement. The court then heard argument, Judge McPherson alone sitting, upon the constitutionality of the Kansas statute. At the close of the hearing counsel for the water company made the objection theretofore [220 U.S. 539, 542] urged by opposing counsel, that the matter could only be disposed of by a court consisting of three judges, constituted as provided in the statute. Judge McPherson adhered, however, to his former ruling, and on March 6, 1911, a decree was entered, vacating the temporary restraining order, and denying a temporary injunction. This application for a writ of mandamus was then made.
The right to relief is based upon the contention that, by virtue of the act of Congress, a single judge was without jurisdiction to hear and determine the application for a temporary injunction. The prayer is that an order or rule be issued commanding the annulment and setting aside of the order of March 6, 1911, vacating the restraining order, and denying the application for an injunction, and directing that the application for a temporary injunction be heard anew before a court consisting of three judges, in conformity to the act of Congress.
The question for decision is whether, pursuant to the act of Congress referred to, the circuit court, composed only of one judge, had power to hear and determine the application for a temporary injunction in the cause pending in the circuit court of Kansas. The legislation to be considered is 17 of the act of June 18, 1910, chap. 309, 36 Stat. at L. 557, reading as follows:
In the opinion delivered by the court below in passing upon the question of the proper construction of the foregoing section, the nature of the suit brought by [220 U.S. 539, 544] the water company was thus concisely and accurately stated:
The suit being of the nature just stated, we are of opinion that the provisions of the act of Congress which are relied upon applied to the case, and that, as a result of their application, it imperatively follows that the hearing and determination of the request for a temporary injunction should have been had before a court consisting of three judges, constituted in the mode specified in the statute.
We say the hearing should have been had as just stated because it results from the text of the applicable section of the act that limitations are unequivocally imposed upon the power of the single justice or judge to act in the character of case to which the provision refers. They are (a) to receive an application for an interlocutory injunction in the character of case stated in the section; (b) within the period specified in the section to grant a temporary restraining order 'if of opinion that irreparable loss or damage would [220 U.S. 539, 545] result to the complainant unless a temporary restraining order is granted;' and (c) to 'immediately call to his assistance to hear ad determine the application (for an interlocutory injunction) two other judges.' It is to the hearing thus provided for that the notice must relate which is to be given to the governor and to the attorney general of the state and 'such other persons as may be defendants in the suit.' It is the hearing before the court thus constituted, also, that is required to be expedited; and the appeal authorized by the section to be taken directly to this court 'from the order granting or denying, after notice and hearing, an interlocutory injunction,' is manifestly an appeal from the expedited hearing had before the court consisting of three judges. We find no expression of or implication anywhere in the section justifying the assumption that there was a intention on the part of Congress that the single justice or judge to whom the application for the interlocutory injunction should be presented need not call to his assistance two other judges to pass upon the application, in the event that he was of opinion that the claim of the unconstitutionality of the statute was untenable. On the contrary, the statute evidences the purpose of Congress that the application for the interlocutory injunction should be heard before the enlarged court, whether the claim of unconstitutionality be or be not meritorious, as the appeal allowed to this court is from an order denying as well as from an order granting an injunction.
Congress having declared that the merits of the application for an interlocutory injunction, such as that applied for in the case with which we are concerned, should be considered and determined by a tribunal consisting of three judges, constituted as provided in the act, it results that a tribunal not so constituted did not possess jurisdiction over the subject-matter of the right to such injunction. It follows, therefore, that in hearing and determining the application for the temporary injunction the single judge [220 U.S. 539, 546] acted without jurisdiction, and that the order entered by him on March 6, 1911, vacating the restraining order theretofore issued, and denying the application for an injunction, was void. This being the case, it necessarily follows that mandamus is the proper remedy, since the section made no provision for an appeal from an order made by a single judge, denying an interlocutory injunction, and a right of appeal is not otherwise given by statute. Ex parte Harding, 219 U.S. 363 , 55 L. ed. --, 31 Sup. Ct. Rep. 324. While these considerations dispose of the case, we briefly advert to an insistence made in argument that we should not take jurisdiction of the merits of the case as made in the circuit court, and determine whether or not the bill stated a case entitling to relief. Not being vested with original jurisdiction to pass upon the question of the validity of the Kansas statute, and the petitioner being entitled as of right to have the controversy as to the constitutionality of the statute, presented by its bill of complaint, passed upon by a tribunal having such original judisdiction, it follows that we do not possess a discretion to grant or refuse the writ, dependent upon our conception as to whether the Kansas statute is or is not constitutional.
The rule issued on April 10, 1911, must be made absolute, and an order will be entered that a writ of mandamus issue directing the Honorable Smith McPherson, as Acting Circuit Judge of the United States for the district of Kansas, and the Circuit Court of the United States for the District of Kansas, to annul and set aside the order of March 6, 1911, vacating the restraining order theretofore issued on February 8, 1911, and denying the application for injunction, and that said judge or such other judge of the said Circuit Court as may hear and determine the application for an interlocutory injunction call to his assistance two other judges, as provided by 17 of chapter 309 of the act of Congress approved June 18, 1910
Rule to show cause made absolute.