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September 28, 1953


The opinion of the court was delivered by: Campbell, District Judge.

Plaintiff styles his complaint as one "in the nature of a mandamus proceeding and for equitable relief." The complaint alleges in substance, that the plaintiff is a resident and citizen of the State of Illinois and of the United States, and a duly qualified and registered voter in the County of Cook and State of Illinois; that on August 17, 1953, plaintiff filed certain petitions with the Honorable Richard J. Daley, County Clerk of Cook County, Illinois; that these petitions entered the plaintiff as a new party candidate under the designation of Judicial Non-Partisan Organization, as candidate for Judge of the Superior Court of Cook County, Illinois, for the full six-year term to be voted on at the judicial election to be held in Cook County on November 3, 1953; that these petitions conformed in all respects to the requirements outlined in the Illinois Election Code, Ill.Rev.Stat., Ch. 46, Sec. 10-2; that the nominating petitions were duly accepted and filed with the said Richard J. Daley, together with a certificate of candidacy of plaintiff, accepting the nomination; and that on August 21, 1953, one Leah M. Wiley filed certain objections to the nominating petitions.

The complaint further alleges that the Sheriff of Cook County failed to notify plaintiff of the time and place the electoral board would meet to hear the objections to his petitions, as provided by Illinois statute; that the Chairman of the electoral board failed to notify the members of the board and the plaintiff of the hearing on the petitions and the objections within the time specified by statute; that a hearing was held before the electoral board on August 27, 1953, tions to plaintiff's petitions, but that the hearing was held improperly because of the absence of Richard J. Daley, one of the members of the board; that the hearing was commenced over plaintiff's objection, and then continued for further hearing to August 31, 1953; that at this further hearing, the full electoral board was present; that plaintiff then objected that the hearing was illegally constituted, since Richard J. Daley had not been present at the first hearing, and, in the alternative, since the board did not convene within the time specified by the Illinois Election Code; that the hearing was nevertheless held by the board, and its decision was announced on September 2, 1953.

The decision of the electoral board is attached to and made part of the complaint. The board found that "the Nominating Petition of the plaintiff does not contain a sufficient number of signatures to equal at least five percent (5%) of the total number of persons who voted at the next preceding General Election in Cook County." On the basis of this finding, the board sustained the objections to plaintiff's nominating petitions, and ordered that plaintiff's name should not be printed on the ballot at the judicial election to be held on November 3, 1953.

The complaint also contains several lengthy descriptions of the Illinois Election Code, with particular emphasis upon Section 10-2 of Chapter 46, which prescribes the manner in which new parties may be formed within the State. The complaint alleges that this section of the Code is unconstitutional.

Plaintiff concludes his complaint with a prayer for declaratory and injunctive relief. He asks this court to declare that he has been denied due process of law, in that his constitutional right to become a candidate for judge of the Superior Court of Cook County has been violated; that Section 10-2 of Chapter 46 of the Illinois Statutes is unreasonable, arbitrary and unconstitutional; and that the electoral board acted without due process of law and without jurisdiction. Plaintiff asks that an interlocutory injunction be issued, restraining the enforcement of the decision of the Cook County Electoral Board, and the printing of the ballots for the judicial election of November 3, 1953, and that a three-judge court be convened to pass upon the constitutionality of Section 10-2, Chapter 46 of the Illinois Election Code.

The matter is now before the court on plaintiff's motion for a temporary restraining order and the convening of a three-judge district court. Section 2281 of the Judicial Code, 28 U.S.C.A. § 2281, provides:

    "An interlocutory or permanent injunction
  restraining the enforcement, operation or execution
  of any State statute by restraining the action of any
  officer of such State in the enforcement or execution
  of such statute or of an order made by an
  administrative board or commission acting under State
  statutes, shall not

  be granted by any district court or judge thereof
  upon the ground of the unconstitutionality of such
  statute unless the application therefor is heard and
  determined by a district court of three judges under
  section 2284 of this title."

This Section was added to the Judicial Code in 1948, and it is substantially similar to former Section 380 of Title 28. This former section has been construed by the Supreme Court on several occasions, and the Court has repeatedly held that Congress did not intend to prescribe the convening of a three-judge court whenever a complainant attacked the validity of a state statute. In short, an application for a three-judge court must be accompanied by a complaint which alleges a substantial federal question.

In Oklahoma Gas & Electric Co. v. Oklahoma Packing Co., 1934, 292 U.S. 386, 54 S.Ct. 732, 734, 78 L.Ed. 1318, the Court stated:

    "The three-judge procedure is an extraordinary one,
  imposing a heavy burden on federal courts, with
  attendant expense and delay. That procedure, designed
  for a specific class of cases, sharply defined,
  should not be lightly extended. * * * The limitations
  of the statute would be defeated were it enough to
  keep three judges assembled that a plaintiff could
  resort to a mere form of words in his complaint
  alleging that the suit is one to restrain action of
  state officers, with no support whatever in fact or

Again, in California Water Service Co. v. City of Redding, 1938, 304 U.S. 252, 58 S.Ct. 865, 866, 82 L.Ed. 1323, the Court made clear that it is "the duty of a district judge, to whom an application for an injunction restraining the enforcement of a state statute or order is made, to scrutinize the bill of complaint to ascertain whether a substantial federal question is presented, as otherwise the provision for the convening of a court of three judges is not applicable." And, the court continued, "The lack of substantiality in a federal question may appear either because it is obviously without merit or because its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject."

With that language in mind, the court turns to the instant complaint. Plaintiff seeks to challenge the constitutionality of Section 10-2 of Chapter 46, Illinois Election Code. That Section prescribes the manner in which new political parties may be formed within Illinois; it provides (in part) as follows:

    "Any * * * petition for the formation of a new
  political party throughout the State, or in any such
  district or political subdivision, as the case may
  be, shall declare as concisely as may be the
  intention of the signers thereof to form such new
  political party in the State, or in such district or
  political subdivision; shall state in not more than
  five (5) words the name of such new political party;
  shall contain a complete list of candidates of such
  party * * * and, if such new political party shall be
  formed for the entire State, shall be signed by not
  less than twenty-five thousand (25,000) qualified
  voters: Provided, that included in the aggregate
  total of twenty-five thousand (25,000) signatures are
  the signatures of two hundred (200) qualified voters
  from each of at least fifty (50) counties within the
  State. If such new political party shall be formed
  for any district or political subdivision less than
  the entire State, such petition shall be signed by
  qualified voters equaling in number not less than
  five (5) per cent nor more than eight (8) per cent of
  the number of voters who voted at the next preceding
  general election in such district or political
  subdivision in which such district or political
  subdivision voted as a unit for the election of
  officers to serve its respective territorial area * *

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