McLaughlin, Aldisert and James Rosen, Circuit Judges.
This appeal*fn1 presents the narrow question whether a single district judge properly dismissed a count in a complaint requesting, inter alia, that New Jersey file a public school plan free of "racial imbalance." After a three-judge statutory court, 326 F. Supp. 1235, dismissed a second count in the same complaint, which requested the same relief but also sought an injunction against the enforcement of certain statutes and a judicial declaration of their unconstitutionality, the single judge incorporated the reasoning of the statutory court in dismissing Count One.
Plaintiffs' complaint alleged that the New Jersey public schools are racially imbalanced, thus constituting de jure segregation outlawed by Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954). The ultimate relief sought was immediate statewide redistricting. The procedural vehicles utilized by the plaintiffs have given rise to this appeal.
Although somewhat inartfully drawn, Count One contends generally that the school system is racially imbalanced and prays that the defendants be ordered "to file with this Court a plan (a) to correct the racial imbalance of the schools in the state of New Jersey at the start of the semester immediately after the entry of judgment therein, and (b) to provide compulsory education . . . and/or to provide funds for such purposes." Count Two, a request for a convocation of a three-judge court, avers that the imbalance results from N.J.S.A. 18A:8-1 to 8-42 and N.J.S.A. 18A:38-1 to 38-24,*fn2 seeks a judgment declaring their unconstitutionality, requests an injunction against enforcement, and essentially asks for the same affirmative mandatory relief sought in Count One.
Count Two is not before us. At oral argument appellants explicitly stated that these appeals relate only to the denial of relief sought from the single judge in Count One. A three-judge court denied the relief requested in Count Two and appellants have lodged a direct appeal from that determination to the Supreme Court. 28 U.S.C. § 1253.*fn3
Basically, the argument advanced on this appeal is that this court has jurisdiction to entertain an appeal from the decision of the single judge because the relief requested was for a declaratory judgment, and not an injunction, and that according to Perez v. Ledesma, 401 U.S. 82, 91 S. Ct. 674, 27 L. Ed. 2d 701 (1971), this court, and not the Supreme Court, has jurisdiction to hear an appeal from a denial of a request for a declaratory judgment. But the issue here is not appealability; indeed, that point is not in controversy. Instead, the more difficult question presented is whether the single district judge properly dismissed Count One for the reasons stated by the statutory court in dismissing Count Two and incorporated by him as the justification for his action.
So postured, appellants' argument creates the critical threshold problem of denominating Count One of the complaint. Appellants' appellations notwithstanding, four possibilities inhere in the rather vaguely-couched language of Count One:*fn4 (1) as a request for particular mandatory relief, it may simply be an equitable prayer which, despite its evanescent constitutional overtones, does not rise to constitutional dimension; (2) it may be viewed, as appellants urge, as a request for a declaratory judgment based on alleged impairment of federal constitutional rights; (3) it may be deemed to seek an injunction against the enforcement of New Jersey educational districting statutes, on the ground that these statutes contravene plaintiffs' constitutional rights; (4) it may be a combination of any of these three procedural vehicles.
Accepting arguendo appellants' contention that Count One amounts to a request for a declaratory judgment, we cannot agree with the conclusion that Perez v. Ledesma, 401 U.S. 82, 91 S. Ct. 674, 27 L. Ed. 2d 701 (1971), mandates that the claim be resolved by a single district court judge.*fn5 Perez involved a local obscenity ordinance in which a three-judge court "recognized that 'it is not the function of a three-judge federal district court to determine the constitutionality or enjoin the enforcement of a local ordinance,' [but] the court nevertheless seized the 'opportunity to express its views on the constitutionality of the ordinance.'" Perez, supra, 401 U.S. at 85, 91 S. Ct. at 677. All Perez concluded was that "there is considerable question concerning the propriety of issuing a declaratory judgment against a criminal law in the circumstances of this case." Id., at 85-86, 91 S. Ct. at 677. Indeed, in Samuels v. Mackell, 401 U.S. 66, 91 S. Ct. 764, 27 L. Ed. 2d 688 (1971), decided the same day as Perez, the Court held that, at least as to federal intervention in pending state criminal proceedings, considerations underlying the grant or denial of declaratory judgments are the same as those on which the issuance vel non of an injunction is based.*fn6 See Scott v. Hill, 449 F.2d 634, 641 (6th Cir. 1971).
Prior to Samuels, the distinctions between an injunction and a declaratory judgment had been well-delineated:
[A] request for a declaratory judgment that a state statute is overbroad on its face must be considered independently of any request for injunctive relief against the enforcement of that statute. We hold that a federal district court has the duty to decide the appropriateness and the merits of the declaratory request ...