Swift Company v. Wickham

Decision Date22 November 1965
Docket NumberNo. 9,9
Citation86 S.Ct. 258,382 U.S. 111,15 L.Ed.2d 194
PartiesSWIFT & COMPANY, Inc., et al., Appellants, v. Don J. WICKHAM, Commissioner of Agriculture and Markets of New York
CourtU.S. Supreme Court

William J. Condon, New York City, for appellants.

Samuel A. Hirshowitz, New York City, for appellee.

Mr. Justice HARLAN delivered the opinion of the Court.

Appellants, the Swift and Armour Companies, stuff, freeze, and package turkeys which they ship to retailers throughout the country for ultimate sale to consumers. Each package is labeled with the net weight of the particular bird (including stuffing) in conformity with a governing federal statute, the Poultry Products Inspection Act of 1957, 71 Stat. 441, 21 U.S.C. §§ 451—469 (1964 ed.), and the regulations issued under its authority by the Secretary of Agriculture.1 Many of these turkeys are sold in New York. Section 193 of New York's Agriculture and Markets Law, McKinney's Consol.Laws, c. 692 has been interpreted through regulations and rulings to require that these packaged turkeys be sold with labels informing the public of the weight of the unstuffed bird as well as of the entire package. Because the amount of stuffing varies with each bird, the State thus seeks to help purchasers ascertain just how much fowl is included in each ready-for-the-oven turkey.

Swift and Armour requested permission of the Poultry Products Section of the Department of Agriculture to change their labels in order to conform with New York's requirements, but such permission was refused at the initial administrative level and no administrative review of that refusal was sought. Swift and Armour then brought this federal action to enjoin the Commissioner of Agriculture and Markets of New York from enforcing the State's labeling provisions, asserting that enforcement would violate the Commerce Clause and the Fourteenth Amendment of the Federal Constitution and overriding requirements of the federal poultry enactment.

Pursuant to appellants' request, a three-judge district court was constituted under 28 U.S.C. § 2281 (1958 ed.), which provides for such a tribunal whenever the enforcement of a state statute is sought to be enjoined 'upon the ground of the unconstitutionality of such statute.' The District Court, unsure of its jurisdiction for reasons appearing below, dismissed the suit on the merits3 acting both in a three-judge and single-judge capacity.4 Appeals were lodged in the Court of Appeals for the Second Circuit from the single-judge determination, and in this Court from the three-judge decision in accordance with the direct appeal statute, 28 U.S.C. § 1253 (1964 ed.). The threshold question before us, the consideration of which we postponed to the merits (379 U.S. 997, 85 S.Ct. 716, 13 L.Ed.2d 700), is whether this Court, rather than the Court of Appeals, has jurisdiction to review the District Court determination, and this in turn depends on whether a three-judge court was required. We hold that it was not.

At the outset, we agree with the District Court that the Commerce Clause and Fourteenth Amendment claims alleged in the complaint are too insubstantial to support the jurisdiction of a three-judge court. It has long been held that no such court is called for when the alleged constitutional claim is insubstantial, Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152; California Water Service Co. v. City of Redding, 304 U.S. 252, 58 S.Ct. 865, 82 L.Ed. 1323. Since the only remaining basis but forth for enjoining enforcement of the state enactment was its asserted repugnancy to the federal statute, the District Court was quite right in concluding that the question of a three-judge court turned on the proper application of our 1962 decision in Kesler v. Department of Public Safety, 369 U.S. 153, 82 S.Ct. 807, 7 L.Ed.2d 641. There we decided that in suits to restrain the enforcement of a state statute allegedly in conflict with or in a field pre-empted by a federal statute, § 2281 comes into play only when the Supremacy Clause of the Federal Constitution is immediately drawn in question, but not when issues of federal or state statutory construction must first be decided even though the Supremacy Clause may ultimately be implicated. Finding itself unable to say with assurance whether its resolution of the merits of this case involved less statutory construction than had taken place in Kesler, the District Court was left with the puzzling question how much more statutory construction than occurred in Kesler is necessary to deprive three judges of their jurisdiction.

It might suffice to dispose of the three-judge court issue for us to hold, in agreement with what the District Court indicated, 230 F.Supp., at 410, that this case involves so much more statutory construction than did Kesler that a three-judge court was inappropriate. (We would indeed find it difficult to say that less or no more statutory construction was involved here than in Kesler and that therefore under that decision a three-judge court was necessary.) We think, however, that such a disposition of this important jurisdictional question would be less than satisfactory, that candor compels us to say that we find the application of the Kesler rule as elusive as did the District Court, and that we would fall short in our responsibilities if we did not accept this opportunity to take a fresh look at the problem. We believe that considerations of stare decisis should not deter us from this course. Unless inexorably commanded by statute, a procedural principle of this importance should not be kept on the books in the name of stare decisis once it is proved to be unworkable in practice; the mischievous consequences to litigants and courts alike from the perpetuation of an unworkable rule are too great. For reasons given in this opinion, we have concluded that the Kesler doctrine in this area of § 2281 is unsatisfactory, and that Kesler should be pro tanto overruled. The overruling of a six-to-two decision5 of such recent vintage, which was concurred in by two members of the majority in the present case,6 and the opinion in support of which was written by an acknowledged expert in the field of federal jurisdiction, demands full explication of our reasons.


The three-judge district court is a unique feature of our jurisprudence, created to alleviate a specific discontent within the federal system. The antecedent of § 2281 was a 1910 Act7 passed to assuage growing popular displeasure with the frequent grants of injunctions by federal courts against the operation of state legislation regulating railroads and utilities in particular.8 The federal courts of the early nineteenth century had occasionally issued injunctions at the behest of private litigants against state officials to prevent the enforcement of state statutes,9 but such cases were rare and generally of a character that did not offend important state policies. The advent of the Granger and labor movements in the late nineteenth century,10 and the acceleration of state social legislation especially through the creation of regulatory bodies met with opposition in the federal judiciary. In Chicago, M. & St. P.R. Co. v. State of Minnesota, 134 U.S. 418, 10 S.Ct. 462, 702, 33 L.Ed. 970, this Court held that the setting of rates not permitting a fair return violated the Due Process Clause of the Fourteenth Amendment. Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, established firmly the corollary that inferior federal courts could enjoin state officials from enforcing such unconstitutional state laws.

This confrontation between the uncertain contours of the Due Process Clause and developing state regulatory legislation, arising in district courts that were generally considered unsympathetic to the policies of the States, had severe repercussions. Efforts were made in Congress to limit in various ways the jurisdiction of federal courts in these sensitive areas.11 State officials spoke out against the obstruction and delay occasioned by these federal injunction suits.12 The sponsor of the bill establishing the three-judge procedure for these cases, Senator Overman of North Carolina, noted:

'(T)here are 150 cases of this kind now where one federal judge has tied the hands of the state officers, the governor, and the attorney-general * * *.

Whenever one judge stands up in a State and enjoins the governor and the attorney-general, the people resent it, and public sentiment is stirred, as it was in my State, when there was almost a rebellion, whereas if three judges declare that a state statute is unconstitutional the people would rest easy under it.' 45 Cong.Rec. 7256.13

In such an atmosphere was this three-judge court procedure put on the statute books, and although subsequent Congresses have amended the statute14 its basic structure remains intact.


Section 2281 was designed to provide a more responsible forum for the litigation of suits which, if successful, would render void state statutes embodying important state policies. The statute provides for notification to the State of a pending suit, 28 U.S.C. § 2284(2) (1964 ed.), thus preventing ex parte injunctions common previously.15 It provides for three judges, one of whom must be a circuit judge, 28 U.S.C. § 2284(1) (1964 ed.), to allow a more authoritative determination and less opportunity for individual predilection in sensitive and politically emotional areas. It authorizes direct review by this Court, 28 U.S.C. § 1253, as a means of accelerating a final determination on the merits; an important criticism of the pre-1910 procedure was directed at the length of time required to appeal through the circuit courts to the Supreme Court, and the consequent disruption of state tax and regulatory programs caused by the outstanding injunction.16

That this procedure must be used in any suit for an injunction against state officials on the ground that a state enactment is...

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