UTILITY COMM'N v. PENNSYLVANIA R. CO., 382 U.S. 281 (1965)

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. 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, 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.

William A. Goichman and Joseph C. Bruno for appellant.

Hugh B. Cox and Windsor F. Cousins for appellee.

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 [382 U.S. 281, 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. 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 Co., 304 U.S. 243, 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, 254 .

It is so ordered. [382 U.S. 281, 283]