289 F.

2d 426

IDLEWILD BON VOYAGE LIQUOR CORPORATION,

Plaintiff-Appellant,
Appellant, Thomas E. ROHAN, Martin C. Epstein, William, H.
Morgan, Grant F. Daniels and Samuel M. Birnbaum, being the
Chairman, Members and Commissioners of the State Liquor
Authority of the State of New York Defendants-Appellees.
Docket 26654.

United States Court of Appeals Second Circuit.

Motions Argued Feb. 6, 1961.
Decided April 14, 1961.

Kelly & Schwartz, New York City (Breed, Abbott & Morgan, Charles H.
Tuttle, John F. Kelly, Stoddard B. Colby, Stuart H. Johnson, Jr., New
York City, of counsel), for plaintiff-appellant.
Louis J. Lefkowitz, Atty. Gen., of the State of New York (Philip Watson,
Asst. Atty. Gen., of counsel), for defendants-appellee.
Before LUMBARD, Chief Judge, MADDEN, Judge, United States Court
of Claims,* and WATERMAN, Circuit Judge.
WATERMAN, Circuit Judge.

Plaintiff filed a complaint against the defendants, members of the State Liquor
Authority of the State of New York. It sought declaratory and injunctive relief
from actions taken by them pursuant to the New York Alcoholic Beverage
Control Law of the State of New York 3, subd. 28, 62 and 100. Plaintiff alleges
that defendants' activities were unconstitutional under the U.S. Constitution,
being repugnant to (a) the commerce clause, and (b) the clause that prohibits a
state, without the consent of Congress, from laying any imposts or duties on
imports or exports. U.S.Const. art. 1, 8, cls. 1, 3.

Plaintiff applied to the United States District Court for the Southern District of
New York, pursuant t0 28 U.S.C. 2281, 2284, for the convening of a three-

judge court to hear and determine the controversy. The single-judge district
court issued an order directing the defendants to show cause before a threejudge district court why the relief sought by the plaintiff should not be granted.
Before the order to show cause came on to be heard defendants moved to
dismiss the complaint. It would appear that the application for the impaneling
of a three-judge district court, the order to show cause, and the motion to
dismiss were simultaneously heard by Judge Bicks, who denied the application
for a three-judge district court, and, in effect, granted defendant's motion to
dismiss (1960, 188 F.Supp. 434). The ground for Judge Bick's action was that
no state court had passed upon the constitutional issues raised, and he was of
the opinion that the federal courts should abstain from doing so until there had
been state adjudication. Implicit in this disposition and opinion is a finding that
a substantial federal question existed which could properly be considered by a
three-judge district court after some intervening state adjudication. Plaintiff was
given leave to renew its motion after a state court had ruled-- whenever there
should be such a ruling. It should be noted that no state court action involving
these parties or these issues was pending at the time.
3

From this decision and order, Idlewild Bon Voyage Liquor Corporation v.
Rohan, D.C.S.D.N.Y.1960, 188 F.Supp. 434 plaintiff filed a notice of appeal,
and thereafter plaintiff obtained an order to show cause why defendants should
not be enjoined and restrained from interfering with plaintiff's business during
the pendency thereof. It also sought to quash an administrative subpoena duces
tecum the defendants issued under the authority of the New York State
Beverage Control Law to appear before defendants with its books and renewed
its application for the impaneling of a three-judge district court. Judge Dimock,
after a hearing, granted the motion for the interlocutory injunction pending the
appeal; denied the motion to quash; and, relying upon Judge Bicks' decision,
refused to impanel a three-judge district court. Appellant appeals to us from the
rulings adverse to it entered by both judges. Defendants-Appellees have now
moved for an order dismissing both appeals on the ground that we lack
jurisdiction to hear them.

We are of the opinion that we must grant appellees' motion and are required to
dismiss these appeals for lack of appellate jurisdiction.
I-- The Order of Judge Bicks

This order denied the petition to convene a three-judge district court because
there had been no prior state adjudication of the issues. The judge relied upon
the doctrine of 'equitable abstention' originally set forth in Railroad
Commission of Texas v. Pullman Co., 1941, 312 U.S. 496, 61 S.Ct. 643, 85

L.Ed. 971 'that the federal courts should not adjudicate the constitutionality of
state enactments fairly open to interpretation until the state courts have been
afforded a reasonable opportunity to pass upon them.'1 There was, however, as
we have previously pointed out, no state action pending. Judge Bicks 'retained
jurisdiction' of the litigation pending state court adjudication. Appellees'
argument that this order was not final and hence unappealable under 28 U.S.C.
1291, 1292 is not well taken. No parallel state actions were pending and there
was no state adjudication to await. There was nothing left to be done in the
federal courts because the action there had been for all intents and purposes
concluded. Appellant was effectively out of court-- any action upon its prayer
for injunctive relief was indefinitely postponed under these circumstances.
There is no bar on this ground to appealability. See Glen Oaks Utilities, Inc. v.
City of Houston, 5 Cir., 1960, 280 F.2d 330.
6

However, the order of Judge Bicks had the effect of dismissing a complaint
challenging the constitutionality under the Federal Constitution of a state
statute and challenging it because of the way that statute was being applied by
the regulatory commission created by it. Stratton v. St. Louis S.W. Ry., 1930,
282 U.S. 10, 51 S.Ct. 8, 75 L.Ed. 135 in clear and unequivocal terms declared
that the three-judge district court was meant to be the tribunal to deal with
constitutional challenges to state activity. And, recently, in Florida Lime &
Avocado Growers v. Jacobsen, 1960, 362 U.S. 73, 80 S.Ct. 568, 4 L.Ed.2d 568
the Court reaffirmed this position by holding that even where state activity was
challenged on both constitutional and nonconstitutional grounds a three-judge
district court was the proper tribunal. In Stratton the Court said that, since this
was so, the district judge to whom an application was made for injunctive relief
from the state activity was required to convene a three-judge district court. The
Court held that if he failed to do so and dismissed the application on its merits
the proper remedy was a writ of mandamus from the Supreme Court (see e.g.,
Ex parte Bransford, 1940, 310 U.S. 354, 60 S.Ct. 947, 85 L.Ed. 1249), for a
Court of Appeals would have no jurisdiction over any matter properly
entertainable by a three-judge district court. Of course, strict adherence to the
Stratton command creates obvious difficulties, for whenever there is a pleader's
allegation of a constitutional infirmity a single judge is required to request that
a three-judge district court be convened. To deal with this problem a procedure
has been developed whereby the district judge to whom the application is made
is charged with making a preliminary determination as to whether a 'substantial
federal question' exists that necessitates the convening of a three-judge district
court.2 Judge Friendly, for our court, in Bell v. Waterfront Commission of New
York Harbot, 2 Cir., 1960, 279 F.2d 853, traces the development of this
procedure, and that case holds that an appeal from a determination that no such
substantial federal question exists is properly preferred to the Court of Appeals.

Accord, Stuart v. Wilson, 5 Cir., 1960, 282 F.2d 539; Wicks v. Southern Pacific
Co., 9 Cir., 1956, 231 F.2d 130.
7

The equitable abstention doctrine referred to by us in this opinion was recently

carefully articulated in Harrison v. N.A.A.C.P., 1959, 360 U.S. 167, 79 S.Ct.
1025, 3 L.Ed.2d 1152, where the Supreme Court remanded a cause for state
consideration. The Court reasoned that in order for a federal court to give
proper consideration to the issue of constitutionality it should have a finished
product before it, i.e., not only the state legislative act but also that act as
construed by the state courts. At the same term, in a later opinion, the Court
pointed out that a reference of this sort to a state court should not be an
automatic reference, N.A.A.C.P. v. Bennett, 1959, 360 U.S. 471, 79 S.Ct. 1192,
3 L.Ed.2d 1375. Moreover, there was no indication that the choice of whether
to abstain could be the choice of a single district judge. In Bennett the appeal
was from and the remand was to a three-judge district court.

The decision to abstain is a very different decision from the preliminary one of
determining whether the case involves a substantial federal question. Such a
determination, not being automatic, presupposes that the court has jurisdiction
to decide the controversy even though it may, after due consideration, choose to
surrender temporarily its power to decide. Inasmuch as Stratton has made it
clear that only a three-judge district court has the requisite jurisdiction to decide
a complaint seeking injunctive relief from acts sought to be justified by reliance
upon a state statute because the statute, so applied, is repugnant to the federal
constitution, 3 we are of the opinion that the determination of whether a federal
court ought to abstain is a determination that may only be made in the first
instance by a three-judge district court. 4

Stratton v. St. Louis S.W. Ry., supra, is undeniable authority for the
proposition that no appeal may be preferred to a court of appeals from an action
taken by a district judge upon on application to convene a three-judge district
court unless there first was jurisdiction in the district court over the subject
matter ruled upon. Having decided that Judge Bicks had no jurisdiction to
proceed as he did, we must conclude from Stratton that we have no jurisdiction
to entertain an appeal from his decision. To be sure, this result leaves us in a
somewhat anomalous position. A court of appeals as a matter of course
entertains appeals that claim a lack of jurisdiction in a district court and a court
of appeals so importuned has jurisdiction to determine whether the district
court's powers, so challenged, were exercised within district court jurisdiction.
Anomalous as our position is, we feel bound by the Supreme Court's opinion in
Stratton, an opinion which that Court has never seen fit to reverse, and to which
it has given its approval when construing a companion section, 28 U.S.C. 2282.

Ex parte cogdell, 1951, 342 U.S. 163, 72 S.Ct. 196, 96 L.Ed. 181.
10

In Bell v. Waterfront Commission of New York Harbor, supra, we first found

that the district court could determine the preliminary question of whether there
was a substantial federal question to be adjudicated upon, and therefore the
court of appeals had juriadiction to review that preliminary determination.
Though the result we reach here of denying to a one-judge district court, and to
ourselves, the power similarly to determine a jurisdictional question, the
jurisdictional question itself is a quite dissimilar one,5 and in determining the
issue before us we are constrained to follow Stratton. Therefore, since we are
of the opinion that a three-judge district court should have been convened, it is
our duty to grant the motion to dismiss. Accord, Chicago, Duluth & Georgian
Bay Transit Co. v. Nims, 6 Cir., 1958, 252 F.2d 317, 319.
II-- The Order of Judge Dimock

11

Falsone v. United States, 5 Cir., 205 F.2d 734, certiorari denied 1953, 346 U.S.
864, 74 S.Ct. 103, 98 L.Ed. 375, held that the denial of a motion to quash a
subpoena of an administrative agency, unconnected with litigation, is a final
order and therefore appealable. In in re Albert Lindely Lee Memorial Hospital,
2 Cir., 1953, 209 F.2d 122, certiorari denied sub nom. Cincotta v. United
States, 1954, 347 U.S. 960, 74 S.Ct. 709, 98 L.Ed. 1104, this court expressly
followed the Falsone case. There would appear, therefore, under ordinary
circumstances to be no doubt as to the appealability of an order denying a
motion to quash. However, the order before us on appeal was sought below on
the ground that the issuance of the subpoena was repugnant to the federal
constitution. In such a situation 28 U.S.C. 2281 requires that a three-judge
district court be convened if a substantial federal question exists. Bell v.
Waterfront Commission of New York Harbot, supra. Therefore, though the
issue is a different one from the one before Judge Bicks, in considering whether
we may entertain the purported appeal we must hold that inasmuch as Judge
Dimock exercised power properly exercisable only by a three-judge district
court we have no jurisdiction to hear an appeal from his order. This result is
required under the Stratton doctrine.

12

The refusal by Judge Dimock to request that a three-judge district court be

convened is, of course, subject to the same infirmity that Judge Bicks' refusal
was. This order was but a reaffirmation of the earlier decision.

13

Also, the stay pending appeal granted by Judge Dimock is not an appealable
order. It enjoined state activities allegedly repugnant to the federal constitution,

and such an injunction was properly issuable only by a three-judge district

court.
14

The results we reach are unhappy ones. We are refusing access to our court to a
party who we believe is entitled to relief. However, as we understand Stratton,
the Supreme Court has determined that we are not the proper tribunal to
adjudicate the issues raised by the purported appeals.

15

Appeals dismissed.

16

LUMBARD, Chief Judge (dissenting).

17

Agreeing with my brethren that the orders made by Judges Bicks and Dimock
are of the sort which are ordinarily appealable,1 I would deny the motion to
dismiss and would hear the appeals to decide first whether the single district
judges had jurisdiction to act as they did and then proceed, if it is found that
they did have jurisdiction, to consider the merits.

18

The appellees argue here, and my brethren agree with them, that even if these
orders are appealable in form, no review of the merits may be made by this
court. Since an injunction restraning the enforcement of a state statute on the
ground that it violates the federal Constitution may be issued only be a threejudge court, 28 U.S.C. 2281, the appellees contend that the single district judge
had no jurisdiction to entertain the application, and that this lack of jurisdiction
may be attacked only by way of mandamus in the Supreme Court. The
appellees, who thus find themselves in the odd posture of urging upon this
court lack of jurisdiction in the district court in order to preserve for their
benefit the very order which they claim was entered without jurisdiction, cite
dictum in Strattion v. St. Louis S.W. Ry., 1930, 282 U.S. 10, 51 S.Ct. 8, 75
L.Ed. 135, in support of their position.2

19

It is clear beyond any doubt that if a district judge, without entering an

appealable order, rules that he, sitting alone, will hear a request for an
injunction restraining the enforcement of a state statute, the appropriate remedy
for a party requesting a three-judge court is by writ of mandamus in the
Supreme Court. E.g., Ex parte Bransfore, 1940, 310 U.S. 354, 60 S.Ct. 947, 84
L.Ed. 1249; see Robertson & Kirkham, Jurisdiction of the Supreme Court of
the United States, 360 (1951 ed.) and authorities there cited. A court of appeals
would not then have appellate jurisdiction under 28 U.S.C. 1291, 1292. Nor
would it be proper for a court of appeals itself to enter a writ of mandamus
since the courts of appeal have no appellate jurisdiction over cases decided by

three-judge district courts and could not, therefore, satisfy the requirement of
28 U.S.C. 1651 that such writs may issue only 'in aid of their * * *
jurisdictions.' See Roche v. Evaporated Milk Ass'n, 1943, 319 U.S. 21, 25, 63
S.Ct. 938, 87 L.Ed. 1185.
20

In this case, however, the district court has proceeded to enter orders which
meet the standards for appellate review prescribed by 28 U.S.C. 1291, 1292.
The appellees urge that nonetheless this court should dismiss the appeals for
lack of jurisdiction and leave the appellant with its remedy of mandamus in the
Supreme Court. If, in fact, the district judges exceeded their jurisdiction in
entering the orders before us on appeal, we would surely be barred from
considering the merits underlying their decisions. 28 U.S.C. 1253 directs that in
'any civil action, suit or proceeding required by any Act of Congress to be heard
and determined by a district court of three judges' an appeal may be taken from
a denial of an interlocutory of permanent injunction directly to the Supreme
Court. But I think we have the jurisdiction and the statutory obligation to hear
this appeal and first dicide whether the orders did exceed the jurisdiction of
district judges sitting alone in the district court, and whether the suit was of the
king which should have been presented to a district court of three judges. Diggs
v. Pennsylvania Public Utilities Commission, 3 Cir., 1950, 180 F.2d 623, 629.

21

If we hold that Judge Bicks was required to impanel a three-judge court, we

must vacate his order and that of Judge Dimock for lack of jurisdiction, and we
can go no further. Two Guys From Harrison-Allentown, Inc. v. McGinley, 3
Cir., 1959, 266 F.2d 427, 433; Board of Supervisors of Louisiana State
University, etc. v. Tureaud, 5 Cir., 1953, 207 F.2d 807. But see Chicago,
Duluth & Georgian Bay Transit Co. v. Nims, 6 Cir., 1958, 252 F.2d 317;
Waddell v. Chicago Land Clearance Commission, 7 Cir., 1953, 206 F.2d 748.
If, on the other hand, we hold that the issues before the district judges were not
for a three-judge court either because the challenge to the state statute was not
of the type comprehended by 28 U.S.C. 2281 or because the question of
'equitable abstention' is analogous to the threshold jurisdictional determination
of a substantial federal question, which is to be decided by the single district
judge and reviewed by the court of appeals, Bell v. Waterfront Commission, 2
Cir., 1960, 279 F.2d 853, we should proceed to the merits as we would in any
other case in which the jurisdiction of a district judge is attacked and is upheld.
Cf. Query v. United States, 4 Cir., 1941, 121 F.2d 631, vacated on other
grounds, 1942, 316 U.S. 486, 62 S.Ct. 1122, 86 L.Ed. 1616; Capital Service,
Inc. v. United States District Court, 9 Cir., 1952, 198 F.2d 18.

22

Jurisdictional questions are surely not beyond the scope of this court's authority.
We are often called upon to dicide whether diversity jurisdiction was properly

exercised by a district court, although in deciding that it was not we must vacate
the dicision below and oust ourselves of jurisdiction to go any further.
Underlying the majority's opinion is the assumption that matters which should
be considered only by a three-judge court and by the Supreme Court should not
be presented to this court-- that supervision over three-judge panels should rest
with the Supreme Court only. But even when the issue is whether a case was
one as to which original jurisdiction lay exclusively with the Supreme Court,
courts of appeal have passed on the jurisdictional issue after a final order was
entered and have not required the parties to seek relief by way of mandamus in
the Supreme Court. See United States v. State of Washington, 9 Cir., 1956, 233
F.2d 811; Farnsworth v. Sanford, 5 Cir., 1940, 115 F.2d 375, certiorari denied,
1941, 313 U.S. 586, 61 S.Ct. 1109, 85 L.Ed. 1541.
23

If we were now to decide the jurisdictional question the Supreme Court could,
of course, review our determination on certiorari or even by a writ of
mandamus. The majority's view, however, imposes on the federal courts a
procedure of piecemeal review whereby a court of appeals is always forced to
stay its hand whenever an appellant or appellee argues to it that the decision
below should have been made by a three-judge court. No matter how worthless
such a claim may be, we would not be able to dispose of it on an appeal from a
final order but would have to await a decision on a petition for mandamus in the
Supreme Court. Only after the Supreme Court decided the jurisdictional
question might we be permitted to consider the merits, and the merits would not
be ripe for Supreme Court review until we had passed upon them on remand. I
cannot believe that the authority of the Supreme Court over three-judge
tribunals was intended to extend so far as to preclude us from deciding the
jurisdictional issue when a district judge enters an order that is otherwise
appealable under 28 U.S.C. 1291, 1292, and thereby to impose on the parties a
procedure calling for separate appellate consideration of the jurisdictional and
substantive questions.

24

It is true that the dictum in the Stratton case, supra, appears to indicate that
even after an appealable order is entered by the district court, the only means of
vacating it is by mandamus in the Supreme Court. But it seems to me that the
Supreme Court in Stratton was concerned with the effects of appellate review
of the merits of an unauthorized order entered by a single district judge and did
not proscribe ordinary review of matters going to the jurisdiction of the single
district judge if his order is otherwise appealable. See Hart & Wechsler, The
Federal Courts and the Federal System 853 (1953).

25

For these reasons I would deny the motion to dismiss.

Sitting by designation

Harrison v. N.A.A.C.P., 360 U.S. 167, at pages 176-177, 79 S.Ct. 1025, at page
1030, 3 L.Ed.2d 1152. And see Note, 59 Colum.L.Rev. 749 (1959)

As previously indicated, a finding that a substantial federal question existed

was implicit in Judge Bicks' decision

Accord, Query v. United States, 1942, 316 U.S. 486, 62 S.Ct. 1122, 86 L.Ed.
1616

See Alabama Public Service Comm. v. Southern Ry., 1951, 341 U.S. 341, 350,
71 S.Ct. 762, 95 L.Ed. 1002. Contra, Chicago, Duluth & Georgian Bay Transit
Co. v. Nims, 6 Cir., 1958, 252 F.2d 317, at page 320

See Board of Supervisors of Louisiana State University etc. v. Turead, 5 Cir.,

1953, 207 F.2d 807, judgment vacated on other grounds and cause remanded,
1954, 347 U.S. 971, 74 S.Ct. 784, 98 L.Ed. 1112

See, in addition to the Glen Oaks Utilities case cited in the majority opinion,
N.A.A.C.P. v. Bennett, 1959, 360 U.S. 471, 79 S.Ct. 1192, 3 L.Ed.2d 1375,
where, on appeal from an order of a three-judge court retaining jurisdiction, the
Supreme Court considered the merits without discussing the issue of
appealability

'If a single judge, thus acting without jurisdiction, undertakes to enter an order
granting an interlocutory injunction or a final decree, either dismissing the bill
on the merits or granting a permanent injunction, no appeal lies from such an
order or decree to this Court, as the statute plainly contemplates such a direct
appeal only in the case of an order or decree entered by a court composed of
three judges in accordance with the statutory requirement. Nor does an appeal
lie to the Circuit Court of Appeals from an order or decree thus entered by a
District Judge without authority, for to sustain a review upon such an appeal
would defeat the purpose of the statute by substituting a decree by a single
judge and an appeal to the Circuit Court of Appeals for a decree by three judges
and a direct appeal to this Court
'Accordingly, where a court of three judges should have been convened, and
was not, this Court may issue a writ of mandamus to vacate the order or decree
entered by the District Judge as may entertain him, or such other judge as may
entertain the proceeding, to call to his aid two other judges for the hearing and
determination of the application for an interlocutory injunction.' 282 U.S. at
pages 15-16, 51 S.Ct. at page 10.