Reargued October 13, 1970.
Ganey, Van Dusen and Gibbons, Circuit Judges. On Reargument: Hastie, Chief Judge, and Ganey, Freedman, Seitz, Van Dusen, Aldisert, Adams and Gibbons, Circuit Judges. Ganey, Circuit Judge (dissenting). Van Dusen, Circuit Judge (dissenting).
In May of 1962 a judgment was entered in the United States District Court for the Eastern District of Pennsylvania against plaintiff Miller, based on his vicarious liability for the negligent driving of his truck by a sub-agent, whom his truck driver had permitted to drive. The accident took place in Maryland, and the judgment was in favor of a Maryland plaintiff. Because that judgment remained unsatisfied for sixty days, Pennsylvania suspended Miller's motor vehicle operator's license and his owner's registration. On June 10, 1963, he received a discharge in bankruptcy from the vicarious tort liability. On June 19, 1963, he requested the Secretary of Revenue of the Commonwealth to revoke the suspensions. The secretary declined. Miller then commenced this suit to enjoin the enforcement, as to him, of the Pennsylvania statute which provides for suspension of operator's license and owner's registration of persons against whom a motor vehicle accident judgment remains unsatisfied. He contends that the last paragraph of § 1414 of the Pennsylvania Motor Vehicle Safety Responsibility Provisions, Pa.Stat.Ann. Tit. 75, § 1414 (1960), is unconstitutional. That section provides:
A discharge in bankruptcy following the rendering of any such judgment shall not relieve the judgment debtor from any of the requirements of this article.
It must be read in conjunction with § 1413 of the same statute which makes consent of the judgment creditor a necessary condition to restoration of license privileges. His suit presents the issue whether under the supremacy clause or the due process or equal protection clauses a state can impose, as a pre-condition to the right to own or to drive a motor vehicle, the satisfaction of a private debt, resulting from remote vicarious tort liability, that has been discharged in bankruptcy.
Miller, and the district judge to whom the case was assigned, requested a three-judge court. 28 U.S.C. §§ 2281, 2284. In December, 1964, Chief Judge Biggs declined to convene such a court on the ground that the complaint failed to allege a substantial federal question. Miller v. Smith, 236 F. Supp. 927 (E.D.Pa.1965). In October, 1965, the Supreme Court denied Miller's motion for leave to file a petition for a writ of mandamus challenging Judge Biggs' ruling. The case then proceeded to hearing before a single district judge, who on October 2, 1969 ordered that the Commonwealth authorities revoke their suspension of Miller's operator's license and owner's registration. This appeal followed.
When Mr. Miller undertook his quest for the right to use a car to earn a living, it was clear that only a three-judge court could enjoin enforcement of an unconstitutional statute on supremacy grounds. Kesler v. Department of Public Safety, 369 U.S. 153, 82 S. Ct. 807, 7 L. Ed. 2d 641 (1962). Justice Warren dissented from that rule. Kesler v. Department of Public Safety, supra at 175, 82 S. Ct. 807. His view is now the law. A single district judge can issue or refuse to issue an injunction on supremacy grounds. Swift & Co. v. Wickham, 382 U.S. 111, 86 S. Ct. 258, 15 L. Ed. 2d 194 (1965). The District Court reached its decision on Fourteenth Amendment grounds. Those grounds would still require a three-judge court and a direct appeal to the Supreme Court. But where, as here, the same facts, which are not in dispute, can support a decision on supremacy grounds we have jurisdiction to affirm.
The Commonwealth contends that Chief Judge Biggs' opinion in Miller v. Smith, supra has already decided the supremacy issue unfavorably to Miller. But whatever is the role of a Chief Judge of a circuit in considering whether or not to convene a three-judge court, it is clear that he could not make any decision on the merits on any issue. His opinion that the supremacy contention was frivolous because of the decision in Kesler v. Department of Public Safety, supra, that of a judge acting in the performance of a limited judicial function, is not controlling.
If Kesler v. Department of Public Safety, supra, and Reitz v. Mealey, 314 U.S. 33, 62 S. Ct. 24, 86 L. Ed. 21 (1941), relied upon in Kesler, were directly in point, we would be obligated to apply them to this case, whatever doubts we might have about their soundness. However, in the present distinguishable situation, we will not extend their holdings and thereby without sound reason further erode the healing remedy afforded by § 17 of the Bankruptcy Act, 11 U.S.C. § 35 (Supp. V, 1970).
Both Reitz and Kesler involved drivers of motor vehicles. In Reitz, the Supreme Court upheld the validity of § 94-b of the Vehicle and Traffic Law of New York, as applied to a negligent driver. That statute imposed a three-year suspension on a driver who has had an accident in respect of which a judgment convicted him of negligence unless he furnished proof of ability to satisfy the judgment. Justice Roberts for the Court wrote:
If the statute went no further, we are clear that it would constitute a valid exercise of the State's police power not inconsistent with § 17 of the Bankruptcy Act. The penalty which § 94-b imposes for injury due to careless driving is not for the protection of the creditor merely, but to enforce a public policy that irresponsible drivers shall not, with impunity, be allowed to injure their fellows. The scheme of the legislation would be frustrated if the reckless driver were permitted to escape its provisions by the simple expedient of voluntary bankruptcy, and, accordingly, the legislature declared that a discharge in bankruptcy should not interfere with the operation of the statute. Such legislation is not in derogation of the Bankruptcy Act. Rather it is an enforcement of permissible state policy touching highway safety. Reitz v. Mealey, supra at 37, 62 S. Ct. at 27.
The Court expressly abstained from considering the further question whether an amendment to that statute, which put it in the power of the creditor to end the suspension by later exacting payment, was in conflict with § 17 of the Bankruptcy Act, 11 ...