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Report No. 58

Position in the U.S.A.

In the U.S.A. a serious problem arose1 by reason of injunctions issued by (federal) district courts, enjoining the enforcement of State unconstitutional statues. Opposition to this practice gave rise, in 1908, to an abortive congressional attempt to oust the jurisdiction of district courts to enjoin State statutes on the ground of unconstitutionality.2 In 1910, Congress established the extraordinary "three judge court", with a direct appeal procedure, for such suits.3

The Act of 1910 was motivated less by hostility to the granting of injunctive relief than by concern over the precipitate manner in which a federal judge sitting alone could frustrate carefully planned State policies. Congress seemed desirous of impressing upon federal judges the serious and drastic nature of the injunctive remedy.3

What Senator Bacon, one of the sponsors of the Act observe4 in 1908 is of interest for our purpose also. He said. "If these (federal) courts are to exercise the power of stopping the operation of the laws of a State and of punishing the officers of a State, then at least let it be done on notice and not hastily, and let there be the judgement of three judges to decide such questions, and not permit such dangerous power to one man."

1. Generally, See "The Three Judge District Court", (1963) 77 Harvard Law Review 299.

2. 42 Cong Rec 4849 (1908).

3. Note-"Three Judge Court Reassessed" (1963) 72 Yale Law Journal 1646.

4. 42 Cong Rec 4853, referred to in Note, "Three Judge Court Reassessed". (1963) 72 Yale Law Journal 1646.

5.21. The present law on the subject in the U.S.A. is as follows:-

Before a federal district court can grant an injunction against the enforcement of a States of federal1 statute2 on the ground that the statute is unconstitutional, the case must be heard and determined by a three judge district court.2

The relevant section of the Judiciary and Judicial Procedure Act3 provides as follows:-

"Injunction against enforcement of State statute, three judge court required-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 Slate 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."

1. See (1964) 28 US Code 2281.

2. Also, in the case of the states, "an order made by an administrative board or commission acting under state statutes (1964) 28 USC 2281.

3. The composition and procedure of three judge district courts is described at length in (1964) 28 USC 2284.

5.22. As regards federal statutes, another section of the Judiciary and Judicial Procedure Act states1 as follows:

"Injunction against enforcement of federal statutes: three-judge court required- An interlocutory or permanent injunction, restraining the enforcement, operation or execution of any Act of Congress for repugnance to the Constitution of the United States shall not be granted by any district court or judge thereof unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title."

1. See (1964) 28 USC 2282.



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