Before Hastings, Circuit Judge, and Hoffman and Will, District
The opinion of the court was delivered by: Will, District Judge.
A preliminary inquiry was made by the district court to
determine the sufficiency of the complaint and whether or not it
was appropriate to convene a three-judge court. The complaint was
found to raise several substantial constitutional issues and to
allege a formal basis for equitable relief.*fn3 It was further
determined that plaintiffs' claims regarding the challenged state
statutes presented questions which under the provisions of
28 U.S.C. § 2281, were solely within the competency of a three-judge
court. The plaintiffs' allegations in regard to the municipal
ordinances, however, were found to be properly triable before a
single judge. Accordingly, the claims relating to the municipal
ordinances were severed from those regarding the state statutes
and only the latter were certified to this Court.*fn4
A determination of the propriety or impropriety of the
application of these statutes to the plaintiffs' conduct was held
in abeyance, and a hearing was held by this Court, dealing with
only the plaintiffs' challenges to the constitutionality of the
Illinois "Mob Action," "Resisting or Obstructing a Peace
Officer," and "Intimidation" statutes. An opinion disposing of
these issues was filed by the Court on March 4, 1968.*fn5
Sub-sections (a)(2) of the "Mob Action" statute*fn6 and (a)(3) of
the "Intimidation" statute*fn7 were found to be vague and overly
broad. The remaining sub-sections of these statutes and the
"Resisting or Obstructing a Peace Officer" statute*fn8 were found to
be consistent with principles of substantive and procedural due
process. A judgment order was then entered declaring the
indicated sub-sections of the "Mob Action" and "Intimidation"
statutes unconstitutional, null, and void under the due process
clause of the Fourteenth Amendment to the Constitution of the
United States. The remainder of each of these statutes and the
"Resisting" statute were declared valid.
Since this judgment, prosecutions against certain plaintiffs
under sub-section (a)(2) of the "Mob Action" statute have been
dismissed by the defendants. There were no pending prosecutions
under sub-section (a)(3) of the "Intimidation" statute.
Therefore, the questions presently before this Court relate only
to the propriety or impropriety of the application of certain
valid state statutes to the plaintiffs' activities. Also pending
before the Court is a motion by all the defendants to dismiss the
action on the ground that principles of comity, as well as the
provisions of Title 28, § 2283, require abstention.
Section 2281, Title 28 of the United States Code, simply
requires that a claim of constitutional invalidity directed at a
state statute be heard and determined by a three-judge court if
injunctive relief is sought. It does not indicate whether other
claims must be heard and determined by a three-judge
court when joined with a claim requiring a three-judge court.
It is apparent, however, that a three-judge court would not be
necessary to hear and determine plaintiffs' application for
injunctive relief if it had rested solely on the ground that
defendants are misusing the statutes to violate plaintiffs'
constitutional rights. See Phillips v. United States,
312 U.S. 246, 61 S.Ct. 480, 85 L.Ed. 800 (1941); Ex Parte Bransford,
310 U.S. 354, 359-361, 60 S.Ct. 947, 84 L.Ed. 1249 (1940). The
Supreme Court noted in Phillips:
Some constitutional or statutory provision is the
ultimate source of all actions by state officials.
But an attack on lawless exercise of authority in a
particular case is not an attack upon the
constitutionality of a statute conferring the
authority even though a misreading of the statute is
invoked as justification. At least not within the
Congressional scheme of [the predecessor of § 2281].
312 U.S. at 252, 61 S.Ct. at 484.
Nevertheless, the claims presently before this Court are,
presumably, pendent to the claims upon which this Court's
jurisdiction was properly invoked. Hence, there remains the
question whether this court, having disposed of plaintiffs' claim
that the challenged statutes are constitutionally invalid, has
and must exercise jurisdiction over the other claims in the
The Supreme Court has considered the jurisdiction of a
three-judge court in several cases where claims of a statute's
constitutional invalidity were joined with other claims. In the
most recent case, Florida Lime and Avocado Growers, Inc. v.
Jacobsen, 362 U.S. 73, 80 S.Ct. 568, 4 L.Ed.2d 568 (1960), the
Court held that a three-judge court is necessary when injunctive
relief is sought on grounds of the unconstitutionality of a
statute, even though the statute is also challenged on other
grounds. The Court further held that the three-judge court has
jurisdiction over all claims raised against the statute. Id. at
84-85, 80 S.Ct. 568.
The Court's holding in Florida Lime and Avocado Growers, Inc.
v. Jacobsen, is consistent with its earlier decisions in Railroad
Commission of State of California v. Pacific Gas and Electric
Co., 302 U.S. 388, 58 S.Ct. 334, 82 L.Ed. 319 (1938) and
Louisville and Nashville Railroad Co. v. Garrett, 231 U.S. 298,
34 S.Ct. 48, 58 L.Ed. 229 (1913). Both those cases involved rate
orders of state administrative bodies that were being challenged
on various state and federal grounds, including that of
constitutional invalidity. The Court held in both cases that the
three-judge court had jurisdiction "to determine all the
questions in the case, local as well as federal." 231 U.S. at
303, 34 S.Ct. at 50, 302 U.S. at 391, 58 S.Ct. at 337.
In these three cases all the issues concerned the validity of
the statute or administrative order, each presenting a different
challenge. Consequently, they do not control the three-judge
court's jurisdiction of claims not challenging the validity of a
statute or administrative order.
Yet, on one occasion the Court has held that a three-judge
court's jurisdiction extended to questions other than the
validity of a statute or administrative order. See Sterling v.
Constantin, 287 U.S. 378, 53 S.Ct. 190, 77 L.Ed. 375 (1932). In
the Sterling case, the plaintiffs sought an injunction
restraining state officials from enforcing executive orders of
the Governor of Texas declaring martial law and regulating oil
production. The grounds of attack were: that the orders violated
the federal constitution, that they violated the state
constitution, that they were not authorized by ...