decided amended april 20 1959.: March 25, 1959.
TWO GUYS FROM HARRISON-ALLENTOWN, INC., APPELLANT,
PAUL A. MCGINLEY, DISTRICT ATTORNEY, COUNTY OF LEHIGH, PENNSYLVANIA.
Before BIGGS, Chief Judge, and GOODRICH and STALEY, Circuit Judges.
BIGGS, Chief Judge.
The plaintiff-appellant, Two Guys from Harrison-Allentown, Inc., a Pennsylvania corporation, operating a store in Whitehall Township, Lehigh County, Pennsylvania, employing approximately three hundred persons, filed a complaint in the court below on November 22, 1958, against the Honorable Paul A. McGinley, the District Attorney of Lehigh County, Pennsylvania, the defendant-appellee, alleging that the District Attorney arbitrarily and discriminatorily, in violation of Sections 1981 and 1983, 42 U.S.C.A., the Second and Third Civil Rights Acts, and the Fourteenth Amendment, has endeavored to coerce the plaintiff into discontinuing the operation of its business on Sunday by threatening to arrest its employees for violations of the Pennsylvania Sunday Blue Laws, 18 P.S.Pa. § 4699.4, and for conspiracy to violate them; that despite repeated requests by the plaintiff the District Attorney has refused to enforce these laws against other persons engaged "in business" and "worldly employment" on Sunday in Lehigh County, the complaint also asserting that the Sunday Blue Laws of Pennsylvania violate the Fourteenth Amendment in that they are unreasonable and discriminatory and are laws respecting the establishment of religion; that the District Attorney threatened that if the plaintiff attempted to operate its store on a then coming Sunday, November 23, 1958, he would cause the arrest of its employees "both for violating the Blue Laws and for conspiracy to violate the Blue Laws", the first offense named being punishable by a small fine, the second offense being punishable by a term of imprisonment not to exceed two years; that such "threats", publicly announced by the District Attorney, intimidate the employees of the plaintiff, coercing them not to work, which will compel the plaintiff to close its store since a substantial part of the plaintiff's business is derived from Sunday operations and that if it be prevented from continuing Sunday operations it will suffer substantial and irreparable injury. The plaintiff alleges that the Blue Laws are unconstitutional in and of themselves and also that the actions of the District Attorney in prosecuting and threatening prosecution of its employees pursuant to them has been arbitrary and discriminatory.
The complaint concludes with prayers that a three-judge court be convened; that that court declare the Blue Laws and the actions of the District Attorney in enforcing them and threatening to enforce them to be unconstitutional, that a temporary restraining order and a preliminary and final injunction issue to restrain the District Attorney from threatening to arrest or arresting the plaintiff's employees and for other relief.
Jurisdiction was invoked generally under Section 1331, federal question and amount in controversy, and Section 1343, civil rights, and specifically as to a three-judge court, under Sections 2281 and 2284, 28 U.S.C. Cf. Hague v. C. I. O., 1939, 307 U.S. 496, 512-513, 525, 59 S. Ct. 954, 83 L. Ed. 1423, and id., 3 Cir., 1939, 101 F.2d 774, 789-790.
On November 22, 1958, the court below, Judge Welsh*fn1 sitting alone, entered an order ex parte on the complaint. The first paragraph of the order stated: "A three-judge court shall be convened pursuant to 28 U.S.C. sec. 2284." The second paragraph temporarily restrained the defendant from arresting or threatening to arrest any employee of the plaintiff for violating the Pennsylvania Blue Laws or for a conspiracy to violate them. The third paragraph provided that a hearing on the application for a preliminary injunction should be had on November 25, 1958. This order was not appealed from.
On November 25, 1958 there was a hearing before Judge Grim,*fn2 and on the following day Judge Grim, adopting the request for findings of fact and conclusions of law of the defendant, vacated the temporary restraining order and dismissed the complaint. The court determined as conclusions of law that the prosecutions by the defendant District Attorney had not been conducted in a discriminatory manner and that he would be justified in invoking the conspiracy laws of Pennsylvania; that there was no substantial federal question as to the constitutionality of the Pennsylvania Blue Laws; that the case was not a proper one for the convening of a three-judge court; that there was no showing by the plaintiff that unless an injunction was granted irreparable damage would inure to it and that the granting of an injunction was not authorized by Act of Congress or necessary to aid the jurisdiction of the court or to protect or effectuate its judgments.*fn3 The court below did not proceed to final hearing, apparently being of the view that this was unnecessary.*fn4,*fn5 No answer had been filed, however, and there was no final hearing. The appeal at bar followed.*fn6
Judge Welsh held that the issues presented by the complaint as to the constitutionality of the Pennsylvania Blue Laws and their alleged discriminatory enforcement by the defendant required the creation of a three-judge court. Judge Welsh's order of November 22, 1958, particularly the first paragraph thereof, quoted above, and the issuance of the temporary restraining order, can be construed in no other way.*fn7 Judge Grim, sitting alone, was without jurisdiction to hear or adjudicate these issues. See Ex parte Northern Pac. R. Co., 1929, 280 U.S. 142, 144-145, 50 S. Ct. 70, 74 L. Ed. 233, and the authorities therein cited. Jurisdiction in the case at bar remains in Judge Welsh. Section 2284(1), Title 28, U.S.C., provides that the district judge to whom the application for an injunction is presented shall constitute one member of the three-judge court and shall immediately notify the chief judge of the circuit who shall designate two other judges and that such judges shall serve as members of the court. Section 2284(3), Title 28 U.S.C., provides that the district judge to whom the application for an interlocutory injunction is made may grant a temporary restraining order to prevent irreparable damage. The jurisdiction conferred by Section 2284 on the judge to whom the application for a three-judge court and for a temporary restraining order is made is paramount to any local rule of court respecting the assignment of cases, such as the rule of the court below entitled, "Rule for the Assignment of Certain Business", referred to in notes 1 and 2, supra. The local rule does not go to jurisdiction. See also United States v. Wheeler, 3 Cir., 1958, 256 F.2d 745, 749, certiorari denied 1958, 358 U.S. 873, 79 S. Ct. 111, 3 L. Ed. 2d 103.*fn8 It follows, we reiterate, that Judge Grim was without the jurisdiction, the power, to enter the order appealed from.
If Judge Welsh should fail or refuse to supply the notification required by Section 2284(1), Title 28, U.S.C., recourse cannot be had to this court but application should be made to the Supreme Court for mandamus or other appropriate relief. Ex parte Bransford, 1940, 310 U.S. 354, 355, 60 S. Ct. 947, 84 L. Ed. 1249; Stratton v. St. Louis Southwestern R. Co., 1930, 282 U.S. 10, 16, 51 S. Ct. 8, 75 L. Ed. 135. The three-judge court, when constituted, will possess the jurisdiction to decide whether a substantial federal question as to the constitutionality of the Blue Laws is presented and, if it should decide that issue in the affirmative, also will have the power to decide if the Blue Laws have been applied discriminatorily by the defendant. Louisville & Nash. R. Co. v. Garrett, 1913, 231 U.S. 298, 303-304, 34 S. Ct. 48, 58 L. Ed. 229; Osage Tribe of Indians v. Ickes, D.C.D.C.1942, 45 F.Supp. 179, 183-185, affirmed 77 U.S.App.D.C. 114, 133 F.2d 47; Firemen's Ins. Co. of Newark, N. J. v. Beha, D.C.S.D.N.Y.1928, 30 F.2d 539, 540, affirmed sub nom. Firemen's Ins. Co. of Newark, N. J. v. Conway, 1928, 278 U.S. 580, 49 S. Ct. 184, 73 L. Ed. 517.
If the three-judge court, when constituted, should reach the conclusion that no substantial federal question as to the constitutionality of the Blue Laws is raised it may then resolve itself into a court of one judge who may determine whether the Blue Laws have been discriminatorily applied by the defendant. Gully v. Interstate Natural Gas Co., 1934, 292 U.S. 16, 18-19, 54 S. Ct. 565, 78 L. Ed. 1088; Andrew G. Nelson, Inc. v. Jessup, D.C.S.D.Ind.1955, 134 F.Supp. 218, 221; Farmers' Gin Co. v. Hayes, D.C.W.D.Okl. 1943, 54 F.Supp. 43, 46-47.
This court has the jurisdiction to determine whether we have the power to entertain and adjudicate this appeal. The judgment of the court below, entered by Judge Grim, is appealable since the suit was dismissed and an injunction was denied. Sections 1291 and 1292, Title 28, U.S.C. But our jurisdiction on this appeal is a very limited one. We have the power to vacate the order of the court below improvidently entered but we can go no further. Cf. Section 2106, 28 U.S.C. We do not, however, possess the power to adjudicate the merits of the appeal. Consequently we will vacate the judgment of the court below and will remand the cause for appropriate action.