Grigsby v. Harris

• Decision Date: 14 August 1928
• Docket Number: No. 353.,353.
• Citation: 27 F.2d 945
• Parties: GRIGSBY et al. v. HARRIS et al.
• Court: U.S. District Court — Southern District of Texas

27 F.2d 945 (1928)

GRIGSBY et al. v. HARRIS et al.

No. 353.

District Court, S. D. Texas, at Houston.

August 14, 1928.

R. D. Evans, of Waco, Tex., for plaintiffs.

Stevens & Stevens, of Houston, Tex., for defendants.

HUTCHESON, District Judge.

Plaintiffs having secured the issuance of a rule to show cause why the temporary injunction prayed for by them should not issue, and the court having on the hearing of the rule found that their petition showed no right in plaintiffs to the injunction prayed for, plaintiffs filed their application for a direct appeal to the Supreme Court of the United States, under section 380, 28 USCA (Judicial Code, § 266, amended). That section provides: "An appeal may be taken direct to the Supreme Court of the United States from the order granting or denying, after notice and hearing, an interlocutory injunction in such case." (28 USCA § 380).

"Such case," as defined in the statute, is one which "seeks to restrain the action of any officer of a state" in the enforcement or execution of any statute, "* * * upon the ground of the unconstitutionality of such statute." The statute further provides that no such suit shall be entertained by the District Court, unless the application for same shall be presented to a court composed of three judges.

The order sought to be appealed from here was made by a single judge, the court being of the opinion that the case was not such a case as provided for in section 380, and a three-judge court, as provided by that statute, was not constituted. In Ex parte Metropolitan Water Co., 220 U. S. 539, 31 S. Ct. 600, 55 L. Ed. 575, it was held that an interlocutory injunction, applied for in a case coming under the terms of section 380, "should be considered and determined by a tribunal consisting of three judges constituted as provided in the act," and that "a tribunal not so constituted did not possess jurisdiction over the subject-matter of the right to such injunction." It is further held: "It follows, therefore, that in hearing and determining the application for the temporary injunction the single judge acted without jurisdiction, and that the order entered by him * * * denying the application for an injunction was void."

That no appeal lies, either under the original or under the amended section, except where three judges have considered and passed upon the application for temporary injunction, is made perfectly plain in the authorities. In Moore v. Fidelity & Deposit Co., 272 U. S. 318, 47 S. Ct. 105, 71 L. Ed. 273, the court says of the act invoked: "It authorizes a direct appeal to this court from the final decree of the District Court only where an application is...