Riss & Co. v. Hoch, 1692.

• Decision Date: 29 October 1938
• Docket Number: No. 1692.,1692.
• Citation: 99 F.2d 553
• Parties: RISS & CO. v. HOCH et al.
• Court: U.S. Court of Appeals — Tenth Circuit

99 F.2d 553 (1938)

RISS & CO. v. HOCH et al.

No. 1692.

Circuit Court of Appeals, Tenth Circuit.

October 29, 1938.

O. Q. Claflin, of Kansas City, Kan., for appellant.

C. Glenn Morris, Asst. Atty. Gen. (Clarence V. Beck, Atty. Gen., Jay Parker, Asst. Atty. Gen., J. E. McCullough, Atty. for Port of Entry Board of State Corporation Commission, Lester Goodell, Atty. for State Highway Commission, of Topeka, Kan., and Joe Nickell, Sp. Asst. Atty. Gen., on the brief), for appellees.

Before PHILLIPS, BRATTON, and WILLIAMS, Circuit Judges.

PHILLIPS, Circuit Judge.

On September 23, 1935, Riss & Company, a corporation, brought this suit against Homer Hoch, I. Harry Darby, and A. W. Logan, as members of the Port of Entry Board of the state of Kansas, Kansas State Corporation Commission, and the State Highway Commission of the state of Kansas.

In the second cause of action the complainant challenged the validity of Ch. 159, Laws of Kansas, 1935 (§§ 21-2184, 21-2185, 21-2186, 21-2187, 21-2188, and 21-2189, Gen. Stat.Ann.Kansas, 1935),¹ on the ground that it is repugnant to the Constitution of the United States, and prayed for an interlocutory and a permanent injunction enjoining and restraining the enforcement thereof.

On September 23, 1935, the late John C. Pollock, United States District Judge, issued an order entitled "Restraining Order," the pertinent portions of which read as follows:

"It is ordered that the defendants and each of them be, and they are hereby restrained until the further order of the Court herein: * * * From collecting or attempting to collect the special fee provided in chapter 159, Laws of Kansas, 1935, on intoxicating liquor being carried through the State of Kansas by the plaintiff in interstate commerce * * * and that plaintiff's application for a temporary injunction is set for hearing on Wednesday, Oct. 2d, 1935 at 10:30 o'clock a. m. of said date, or as soon thereafter as counsel can be heard before the undersigned in the Federal Building in Kansas City, Kansas."

On October 2, 1935, the defendants filed a motion to vacate, set aside, and hold for naught the order of September 23, 1935.

On October 2, 1935, Judge Pollock approved a stipulation of the parties that the cause might be set down for final hearing on October 9, 1935, and entered an order continuing the cause until October 9, 1935. On October 9, 1935, on stipulation of the parties, Judge Pollock continued the matter until October 18, 1935, and set it for final determination on that date. In both stipulations, counsel for defendants reserved the right to object to a hearing by a single judge. On October 9, 1935, the defendants filed their answer.

On October 14, 1935, a stipulation of facts was filed in the cause. On October 18, 1935, a stipulation for submission of the cause upon the stipulation of facts and briefs to be submitted was filed by the parties, and Judge Pollock ordered that the cause should be submitted upon such stipulation of facts and briefs to be filed.

On November 7, 1935, the parties entered into a supplemental stipulation for the filing of an additional statement of facts.

On November 8, 1935, Judge Pollock ordered that the parties should file their supplemental stipulation of facts on or before November 15, 1935; that within ten days thereafter the plaintiff should file and serve its brief; and that within ten days thereafter the defendants should file and serve their reply brief.

On March 7, 1936, the parties entered into a further stipulation providing for the filing of an additional statement of facts on or before March 14, 1936.

On March 12, 1936, Judge Pollock ordered that the additional statement of facts should be filed on or before March 14, 1936; that on or before March 28, 1936, the plaintiff should file and serve its brief and that within ten days thereafter the defendants should file and serve their brief, and that within five days thereafter plaintiff should file its reply brief, and that the causes of action should be submitted on the pleadings, the agreed statements of facts, and briefs of the parties.

Judge Pollock died on January 24, 1937.

The first cause of action became moot, and on September 8, 1937, the court dismissed it on motion of the plaintiff.

On November 15, 1937, the parties entered into and filed in the cause the following stipulation:

"Come now the respective parties hereto and stipulate and agree that any and all provisions of the statute in relation to a three-judge court are hereby waived, and it is agreed that this cause be, and the same is submitted to Honorable Richard J. Hopkins, Judge of the United States District Court for the District of Kansas, for decision on the stipulation of facts and briefs on file herein, and

"It is further stipulated and agreed that in the event of an appeal by either of the parties hereto, no question will be raised concerning the jurisdiction of Judge Hopkins to hear and decide said case.

"Signed this 5th day of November, A. D. 1937.

"O. Q. Claflin "Attorney for Plaintiff. "Clarence V. Beck "J. S. Parker "Attorneys for Defendants."

No three-judge statutory court was ever assembled to hear either the application for an interlocutory injunction or the cause on final hearing. The motion to vacate and set aside the temporary restraining order was never acted upon and it remained in full force and effect until December 28, 1937, when Judge Hopkins entered the following order:

"Now on this 28th day of December, 1937, the Court having carefully considered the briefs and argument of the respective parties in the above action, and the record therein, finds that the restraining order heretofore issued therein should be dissolved and that said action should be dismissed.

"It is therefore, considered, ordered and adjudged, that the restraining order issued in this cause be dissolved and that said cause be, and the same is hereby dismissed. It is further ordered that costs in this action be taxed to the plaintiff."

From such order complainant has undertaken to appeal to this court.

Title 28 U.S.C.A. § 380 provides where a suit is brought to suspend or restrain the enforcement, operation, or execution of any state statute upon the ground that it is repugnant to the Constitution of the United States, and an application for an interlocutory injunction is made and pressed, that the hearing on the application for the interlocutory injunction and the final hearing must be before a court of three judges, one of whom must be a justice of the Supreme Court or a circuit judge. It further provides that whenever such an application for an interlocutory injunction is presented to a justice of the Supreme Court or to a judge, he shall immediately call to his assistance to hear and determine the application, two other judges. It further provides that the justice or judge to whom the application is made, if in his opinion it is necessary in order to prevent irreparable loss or damage to the complainant, may grant a temporary restraining order at any time before the hearing and determination of the application for an interlocutory injunction, but that such temporary restraining order shall remain in force only until the hearing and determination of the application for an interlocutory injunction. It further provides for an appeal directly to the Supreme Court from the order granting or denying the...