Before MAJOR, Chief Judge, and LINDLEY, Circuit Judge.
Two motions are presented: (1) one by appellee to dismiss the appeal and (2) a subsequent one by appellants to withhold our ruling on the motion to dismiss pending disposition in the trial court of appellants' subsequent motion for relief from the judgment from which this appeal is taken.
Appellants' motion presents no difficulty. From appellees' answer, supported by the affidavit of counsel for the Commission, it appears that appellants' motion for relief from the judgment below was denied by Judge Hoffman on July 16, 1953. Clearly, appellants' motion must be denied.
This action was brought to challenge the validity of the Blighted Areas Redevelopment Act of 1947, Ill.Rev.Stat.1951, c. 67 1/2. Pursuant to this Act, Appellee, Chicago Land Clearance Commission, herein referred to as the Commission, instituted condemnation proceedings against and, after several years litigation, acquired certain real property of appellants and others, and effected a sale thereof to the New York Life Insurance Company for the purpose of redevelopment by that Company.
It is not necessary to recite the multiplicity of suits by appellants and others, since the condemnation proceeding was commenced, challenging the constitutionality of the Land Clearance Act. Appellants, in the instant action, again challenged the Statute as a denial of the equal protection of the laws guaranteed to them by the Fourteenth Amendment to the Constitution. They asserted that their property was seized under the State's power of eminent domain and transferred to the Insurance Company for private use. They prayed that a three judge district court be convened pursuant to Section 2281 of the Federal Judicial Code, 28 U.S.C.A. § 2281, and that an injunction issue restraining the Commission from evicting them from the property.
At a hearing before Judge Campbell on March 31, 1953, the cause was dismissed as to all plaintiffs except appellants, Waddell and his wife, who are citizens and residents of the State of Michigan. Diversity of citizenship was thereby established. On the same date, on motion of counsel for the Commission, the entire cause was dismissed by Judge Campbell, sitting alone, for lack of a substantial federal question.
Appellants filed their notice of appeal on May 25, 1953, to review the order of dismissal. The present motion under Rule 13(b) of this court to dismiss the appeal was filed by the Commission and adopted by appellee Babb by his motion filed July 16, 1953. The motions are based on the grounds that, (1), the appeal is not timely, and, (2), it is frivolous. Appellants contend that Judge Campbell had no jurisdiction to enter an order of dismissal; that, appellants having invoked the jurisdiction of a three judge court under 28 U.S.C.A. § 2281, a competent order of dismissal could issue only from such a court. They argue that the order is void and can and should be reversed by this court.
Appellants' contention is without merit. They cite Stratton v. Saint Louis, Southwestern Ry. Co., 1930, 282 U.S. 10, 51 S. Ct. 8, 75 L. Ed. 135, in support of their position. That case holds that, once a substantial federal question is presented in an action to enjoin enforcement of a state statute, a district judge has no jurisdiction to dismiss the cause. But this does not finally resolve the question raised by the instant motion, for, under Section 2281, the existence of a substantial federal question is jurisdictional and essential to the jurisdiction of a statutory three judge court. Ex parte Poresky, 1933, 290 U.S. 30, 54 S. Ct. 3, 78 L. Ed. 152. The initial question of jurisdiction may be decided by a district judge to whom application is made. Ex parte Poresky, supra; Farr v. O'Keefe, D.C.Miss., 27 F.Supp. 216; Pullen v. Patton, D.C.Tex., 19 F.Supp. 340.
Appellants have attacked this Statute repeatedly. In Chicago Land Clearance Commission v. White, 411 Ill. 310, 104 N.E.2d 236, certiorari denied, 344 U.S. 824, 73 S. Ct. 23, the Illinois Supreme Court sustained the validity of the condemnation judgment over the allegation of the parties, including appellants, that the Act is unconstitutional. One of the appellants was plaintiff in Robinette v. Chicago Land Clearance Commission, D.C.N.D.Ill., 115 F.Supp. 669. seeking to restrain enforcement of the Act on the ground that it denies plaintiffs their rights guaranteed by the Fourteenth Amendment. This action was dismissed by Judge Campbell for want of a substantial federal question. In Robinette v. Campbell, 1952, 342 U.S. 940, 72 S. Ct. 563, 96 L. Ed. 699, the Supreme Court denied motions for leave to file petitions for a writ of mandamus to compel Judge Campbell to expunge his order of dismissal and to convene a three judge court to dicide the cause. Thus it is seen that the Supreme Court has refused to entertain an application to review the questions which appellants have attempted to present by this action.
We think it clear that Judge Campbell was entirely justified in ruling that no substantial federal question is presented. This action differs from the Robinette case in only one respect, viz., that here there is complete diversity of citizenship. The question raised is the same, viz., the existence or non-existence of a substantial question as to the constitutionality of the Land Clearance Act. Appellants have had their day in court, and this assertion of unconstitutionality has been decided against them. We agree that they do not now present a substantial federal question.
However, even assuming, arguendo, that appellants are correct in their contention of invalidity of the order, this court has no jurisdiction on appeal. Thus, in Stratton v. Saint Louis, Southwestern Ry. Co., 282 U.S. 10, at pages 15 and 16, 51 S. Ct. 8, at page 10, 75 L. Ed. 135, the Court said in part:
"If a single judge, thus acting without jurisdiction, undertakes to enter an interlocutory injunction or a final decree, either dismissing the bill * * * or granting a permanent injunction, no appeal lies * * * to this Court * * *. Nor does an appeal lie to the Circuit Court of Appeals from an order * * * thus entered * * *, for to sustain a review upon such an appeal would defeat the purpose of the statute by substituting a decree by a single judge and an appeal to the Circuit Court of Appeals for a decree by three judges and a direct appeal to this Court."
A petition for a writ of mandamus is the appropriate remedy. Ex parte Poresky, 1933, 290 U.S. 30, 54 S. Ct. 3, 78 L. Ed. 152; Stratton v. Saint Louis, Southwestern Ry. Co., 282 U.S. 10, 51 S. Ct. 8, 75 L. Ed. 135. Thus, even though appellants' position be correct, their only recourse lies in an ...