Appellants insist that the judgment of the District Court is wrong under our holding in Milliken v. Bradley, 418 U.S. 717, 94 S. Ct. 3112, 41 L. Ed. 2d 1069 (1974), while appellees insist that it is consistent with that case. But this case comes here as an appeal from an order of a three-judge District Court enjoining the enforcement of a state statute, a question not even present in Milliken. The three-judge District Court by its order of April 16, 1975, enjoined appellants from relying upon provisions of a Delaware statute which by their terms had expired six years earlier. Because in doing so I believe the District Court decided an issue that is demonstrably moot, I would reverse its judgment on this point. Since the additional question of whether the Milliken issues briefed by the parties are properly before us under any conceivable theory is one which veritably bristles with jurisdictional problems, I would note probable jurisdiction and set the case for argument on these points. The Court's summary affirmance, in my opinion, not only wrongfully upholds an erroneous injunction issued by the District Court, but because of the difficult jurisdictional questions present in this case leaves totally beclouded and uncertain what is decided by that summary affirmance.
* The challenged Delaware statute, known as the Educational Advancement Act, was enacted by the legislature in June 1968 'to provide the framework for an effective and orderly reorganization of the existing school districts of this State through the retention of certain existing school districts and the combination of other existing school districts.' 14 Del.C. ยง 1001.
Appellant Delaware State Board of Education and its members were placed under an explicit timetable by this statute. By September 1, 1968, it was to develop specific criteria for implementing a reorganization plan in accordance with requirements contained in the statute; by October 24, 1968, it was required to develop a plan conforming to these criteria, to submit the plan to local boards of education, and to receive and pass on their objections to the proposed plan. 14 Del.C. ยง 1004(a) and (b). Section 1005 provided that on July 1, 1969, 'all proposed school districts contained in the plan as adopted [under ยง 1004] shall be constituted and established as reorganized school districts.'
Section 1004(c) contained an exclusion which was the basis of appellees' constitutional attack on the statute. It provided that, in contrast to the wide discretion conferred upon the state board with respect to other school districts in the State, the city of Wilmington should constitute a single school district. The District Court sustained appellees' claim that this provision invidiously discriminated against Negroes, finding that although there had been no intent to do so on the part of the legislature the effect of the statute was to lock in Negro school children within the Wilmington school district in a way that might not have resulted if that district had been subject to the state board's discretionary power to consolidate as were the remaining districts in the State under the 1968 legislation. The District Court summarized this portion of EEA in the following language:
'The key reorganization provisions of the Act provided an exemption of approximately one year from the long-standing requirement in Delaware law that consolidation of contiguous school districts must be approved by a referendum in each of the districts affected. 14 Del.C. ยงยง 1001-05. In other words, for a limited time, the State Board of Education was authorized to consolidate school districts according to the dictates of sound educational administration and certain statutory criteria. The Wilmington School District was explicitly excluded from the reorganization powers of the State Board by ยง 1004(c)(4): 'The proposed school district for the City of Wilmington shall be the City of Wilmington with the territory within its limits.' Wilmington was also excluded implicitly from any consolidation plan by ยง 1004(c)(2), which limited the maximum pupil enrollment in any proposed school district to 12,000.' 393 F.Supp., at 438 (emphasis added).
The difficulty with the District Court's holding, quite apart from its constitutional merits, is that the statute authorized action by appellant state school board only until July 1, 1969. As the District Court explicitly found, the reorganization powers from which Wilmington was excluded lapsed on that date. After that date, neither the city of Wilmington nor Negro school children attending schools in the city could suffer any discrimination as a result of the state board's enforcement of the statute: the state school board no longer had unilateral power to effect consolidation. That step can be accomplished only by approval of the voters in the affected school districts by referendum. Under 14 Del.C. ยง 1027, while a voter-approved consolidation plan can be rejected by the state board in its discretion, a voter-rejected consolidation plan can not be resurrected by the state board.
Thus by July 1, 1969, the state board had been relegated, Cinderella-like, to the status which it occupied prior to the 1968 legislation. The provision of ยง 1004(c), limiting the authority of the state board with respect to the school district consisting of the city of Wilmington, was relevant, if at all, at the time this case was heard by the three-judge court, only as an historical fact. Whatever may be the proper weight to be accorded this historical fact in the assessment by a single-judge district court of the factors made relevant inMilliken, it was functus officio as a part of an operative statute.
A three-judge District Court cannot enjoin the operation of a statute which has expired by the time the Court's decree is entered. Indeed, so strongly has this Court felt about the necessity for a 'live controversy' that it has vacated the judgment of the District Court where the statute was repealed after the ruling of that court but before decision here. Diffenderfer v. Central Baptist Church, 404 U.S. 412, 92 S. Ct. 574, 30 L. Ed. 2d 567 (1972). A fortiori, a prayer for restraint against a state officer's enforcement of a statute which expired prior to litigation presents a dead issue. The grant of judicial power in Art. III of the United States Constitution limits federal courts to cases or controversies, and a dispute about the constitutionality of a statute which is no longer in effect is moot in the classical sense.
II
Presumably the Court's summary and unexplained affirmance of the judgment of the District Court upholds its issuance of an injunction against the enforcement of sections of a law which by their own terms have expired. By reason of the summary nature of the Court's action, however, neither the parties nor the District Court can know what additional effect the affirmance here may have. Although the parties have briefed the Milliken issues, I believe that there are all but insurmountable jurisdictional difficulties to the Court's reaching them, whether it were to affirm or to reverse the injunctive portion of the District Court's judgment. I would at the very least note probable jurisdiction and hear argument on them in order to make a principled determination as to whether we have authority on this appeal to deal with those issues at all.
A.
On the assumption that the District Court was correct in issuing the injunction against the enforcement of the Delaware statute, an assumption with which I disagree for reasons previously stated, there is the most serious question as to whether the Court could reach the Milliken issues even if it wished to do so. This case is here on direct appeal only because 28 U.S.C. ยง 1253 authorizes such appeal 'from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.'
This language stands in sharp contrast to the language of 28 U.S.C. ยง 1252, dealing with direct appeals from District Court's judgments invalidating Acts of Congress, the relevant language of which is:
'Any party may appeal to the Supreme Court from an interlocutory or final judgment, decree or order of any court of the United States . . . holding an Act of Congress unconstitutional in any civil action, suit or proceeding. . . .'
Construing this language in United States v. Raines, 362 U.S. 17, 80 S. Ct. 519, 4 L. Ed. 2d 524 (1960), the Court stated that it seemed 'to indicate a desire of Congress that the whole case come up . . ..' 362 U.S. 17, 27 n. 7, 80 S. Ct. 519, 4 L. Ed. 2d 524.
By contrast, the much narrower language of ยง 1253 allows appeal here not from a final judgment or decree but only from 'an order granting or denying . . . an interlocutory or permanent injunction . . ..' It is established by the consistent holdings of this Court that this section, together with 28 U.S.C. ยง 2281, are to be narrowly, rather than broadly, construed. Gonzalez v. Employees Credit Union, 419 U.S. 90, 98, 95 S. Ct. 289, 42 L. Ed. 2d 249 (1974); Phillips v. United States, 312 U.S. 246, 248, 61 S. Ct. 480, 85 L. Ed. 800 (1941).
The Court's opinion in Florida Lime Growers v. Jacobsen, 362 U.S. 73, 76, 80 S. Ct. 568, 4 L. Ed. 2d 568 (1960), is highly instructive on this point. There the issue was whether, in an appeal pursuant to ยง 1253, this Court and the District Court had jurisdiction to entertain nonconstitutional attacks on the challenged statute as well as constitutional attacks. The Court held that they did. Mr. Justice Frankfurter and Mr. Justice Douglas in dissent contended they did not. I should think that if at the time of the decision in Florida Lime Growers it was a fairly debatable question whether this Court and the District Court could entertain nonconstitutional challenges to the very statute against which the injunction was sought, there could be little doubt that neither our jurisdiction nor the jurisdiction of the District Court would extend still further to embrace issues which were independent of and far more extensive than the assumed 'present' invalidity of the challenged statute.
B
Serious as these jurisdictional doubts seem to me, those which flow from the opposite assumptionโthat the District Court erred in enjoining the enforcement of the provisions of a statute which by their terms had expiredโare even more troubling. The prayer seekinginjunctive relief against the enforcement of the Delaware statute was filed in the District Court in this case in 1971. At that time, the provisions of ยง 1004(c) ultimately struck down by the District Court had been functus officio since 1969. I would think that our recent treatment of nonjusticiability in a three-judge court context applies equally to the defect of mootness at the time injunctive relief is sought:
'[T]hat the complaint was nonjusticiable [is] not merely short of the ultimate merits; it [is] also, like an absence of statutory subject-matter jurisdiction, a ground upon which a single judge could decline to convene a three-judge court, or upon which the three-judge court could have dissolved itself, leaving final disposition of the complaint to a single judge.
'The three-judge court is not required where the district court itself lacks jurisdiction of the complaint . . .. See Ex parte Poresky, 290 U.S. 30, 31, 54 S. Ct. 3, 78 L. Ed. 152.' Gonzalez v. Employees Credit Union, 419 U.S. 90, 100, 95 S. Ct. 289, 42 L. Ed. 2d 249 (1974).
At the time injunctive relief against the statute was first sought, the action was not one 'required' under ยง 1253 to the heard by a three-judge court because the claim even at that stage was moot. In such a situation, our appellate jurisdiction is confined solely to corrective action in connection with the District Court's mistaken issuance of an injunctive decree:
'As the case was not one within [ยง 2281], the merits cannot be brought to this Court by a direct appeal. [Citations omitted.] But, although the merits cannot be reviewed here in such a case, this Court by virtue of its appellate jurisdiction in cases of decrees purporting to be entered pursuant to [ยง 2281], necessarily has jurisdiction to determine whether the court below has acted within the authority conferred by that section and to make such corrective orders as may be appropriate to the enforcement of the limitations which that section imposes.' Gully v. Interstate Nat. Gas Co., 292 U.S. 16, 18, 54 S. Ct. 565, 78 L. Ed. 1088 (1934). See also Phillips v. United States, 312 U.S. 246, 248, 61 S. Ct. 480, 85 L. Ed. 800 (1941); Bailey v. Patterson, 369 U.S. 31, 34, 82 S. Ct. 549, 7 L. Ed. 2d 512 (1962); Gonzalez v. Employees Credit Union, 419 U.S. 90, 95 n. 12, 95 S. Ct. 289, 42 L. Ed. 2d 249 (1974).
On the assumption that the District Court wrongly enjoined the enforcement of the statute which was moot at the time the injunction was first sought, the only proper exercise of the jurisdiction conferred upon us by 28 U.S.C. ยง 1253 is to reverse the injunctive decree issued by the District Court on the grounds that the relief sought did not necessitate the convening of a three-judge District Court, and remand the case so that it may proceed before a single-judge court.
I think the decision of the Court of Appeals for the Sixth Circuit in a situation virtually identical to that now presented here, and presented to that court in an earlier stage of the Milliken litigation, is of some weight in deciding the question of our jurisdiction here. That court held, Bradley v. Milliken, 468 F.2d 902 (C.A.6), cert. denied, 409 U.S. 844, 93 S. Ct. 45, 34 L. Ed. 2d 83 (1972), that an order finding an interdistrict violation and requiring submission of plans, but not imposing any remedy, was not appealable from the District Court to the Court of Appeals. Since the jurisdiction conferred upon the courts of appeals by 28 U.S.C. ยง 1291 and ยง 1292(a) is far more generous in scope than that conferred upon us by 28 U.S.C. ยง 1253, if the Court of Appeals was right in Milliken it is highly doubtful that we have any authority to go beyond review of the District Court's injunctive decree here.
The resolution of each of these issues which I have treated in this dissent is probably not free from doubt, and I could understand a reasoned disposition of the case here which differed from the views which I have expressed. But this is one of those cases in which an opinion of the Court seems to me to be necessary, not merely to resolve an issue concededly present, but to denominate for the benefit of the parties and the District Court what issues the Court conceives to be resolved by its summary affirmance. My dissent from that sort of affirmance here is based on my conviction that it is extraordinarily slipshod judicial procedure as well as my conviction that it is incorrect.