Pell and Stevens, Circuit Judges, and Juergens, Senior District Judge.*fn*
This is an appeal from a refusal to initiate procedures for a three-judge court pursuant to 28 U.S.C. §§ 2281 and 2284 and the dismissal of plaintiffs' complaint. The complaint attacks the appeals provisions of the Illinois Forcible Entry and Detainer Act, Ill.Rev.Stat. ch. 57, §§ 19-22,*fn1 as being violative of the Fourteenth Amendment's requirements of due process and equal protection of the laws.
Plaintiffs Otha and Ludesta Starks are "contract buyers" of residential real estate. They were threatened with a writ of restitution following an adverse judgment of possession and the failure to post the required appeal bond within the statutorily specified five-day period. Defendants Henry and Alice Klopfer are the assignees of the contract sellers of the house. Defendant Richard Elrod is the Sheriff of Cook County, Illinois, whom plaintiffs sought to enjoin from evicting them.
More specifically, plaintiffs in 1969 defaulted on their contract for the purchase of a residence located in Chicago. A judgment of possession was entered against them in the state court pursuant to forcible entry and detainer proceedings. A $3,000 appeal bond was set pursuant to § 20 of the Illinois statute, supra. Plaintiffs filed a timely notice of appeal, but did not post the required appeal bond until eight days after judgment. The appeal bond originally approved was vacated by the trial court because of the tardiness of filing.
Plaintiffs appealed the order striking their bond, which appeal was transferred to the Illinois Supreme Court. In the case of Hamilton Corp. v. Alexander, Ill., 53 Ill. 2d 175, 290 N.E.2d 589 (1972), the Illinois Supreme Court dismissed plaintiffs' appeal, holding that the failure to comply with §§ 19 and 20 of chapter 57, Ill.Rev.Stat., was jurisdictional. In the course of its opinion, the court held the two sections of the Act to be valid under both the state and federal Constitutions. Plaintiffs then filed this complaint in the district court seeking an injunction forbidding the execution of the writ of restitution and holding these appellate procedures unconstitutional.*fn2 Significantly, subsequent to the dismissal of the complaint by the district court, the Illinois Supreme Court withdrew its opinion in Alexander v. Hamilton Corp., and that case is now presently under advisement.
To provide the necessary background for the discussion of the merits of the dismissal, we must preliminarily note two other significant changes in Illinois law. In Rosewood Corp. v. Fisher, 46 Ill.2d 249, 263 N.E.2d 833 (1970), the Illinois Supreme Court held that in a forcible entry and detainer action by vendors against contract purchasers seeking possession of real property on the ground of breach of contract -- the very case we have here -- the purchaser may raise equitable defenses. Plaintiffs in their defense of the initial state court action had attempted to raise such defenses and had been precluded from so doing under the then prevailing view that such proceedings were summary in nature and only dealt with right to possession. Thus, if plaintiffs' appeal had not foundered for failure to comply with the provisions for filing an appeal bond, it is clear that they would have had an opportunity to raise the defenses on remand.
More significantly for the present case, however, is the fact that subsequent to the district court's dismissal of the complaint, the Illinois Supreme Court in Jack Spring, Inc. v. Little, 50 Ill.2d 351, 280 N.E.2d 208 (1972), held unconstitutional Ill.Rev.Stat. ch. 57, § 19, insofar as it required furnishing a bond as a prerequisite to prosecuting an appeal under the Forcible Entry and Detainer Act. The court reached that result on the basis of the series of cases holding that once a right of appeal is created it cannot be discriminatorily impaired by statutes adopted or rules promulgated to implement it. Only insofar as the bond was to act as supersedeas was it apparently necessary to file it within the statutory period:
"The right to an appeal is a matter separate and apart from the right to supersedeas during the pendency of the appeal, and in being required to furnish a bond as a condition to staying the judgment, an appellant in an action in Forcible Entry and Detainer is in no different situation than an appellant who seeks a stay of the judgment in any other type of appeal." 280 N.E.2d at 212.
It is significant if the Jack Spring, Inc. opinion is applied to contract purchases (it arose specifically in the case of a tenancy), as it may be, that the most harmful aspects of state law as far as plaintiffs are concerned will have been eliminated. Therein may be the explanation of the fact that the defendants did not file a brief in this court and plaintiffs did not by supplemental citation of authority bring to this court's attention this recent development in Illinois law. Be that as it may, we must still determine whether the district court's dismissal of the complaint was proper.
The standards for dismissing a complaint for a three-judge court were set out in Ex parte Poresky, 290 U.S. 30, 31-32, 54 S. Ct. 3, 4, 78 L. Ed. 152 (1933):
"But the provision requiring the presence of a court of three judges necessarily assumes that the District Court has jurisdiction. In the absence of diversity of citizenship, it is essential to jurisdiction that a substantial federal question should be presented. . . . That provision does not require three judges to pass upon this initial question of jurisdiction.
"The existence of a substantial question of constitutionality must be determined by the allegations of the bill of complaint. . . . The question may be plainly unsubstantial, 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 and leave no room for the inference that the ...