the constitutionality of that Act or the power therein asserted. Indeed, they rely upon it to assert their alleged cause of action.If their interpretation of the 1906 Act is wrong, then, presumably, their attack upon the 1921 Act fails. In any event, this is the very heart of their case; and as we have already indicated, the United States must be made a party to its trial and decision.
In summary it may be said that there are three questions entangled in the arguments thus far considered: (1) Is the United States an indispensable party; (2) what is the meaning of the 1906 Act; (3) in light of that meaning was the 1921 Act unconstitutional? In disposing of the motion to dismiss, we are required to decide only the first of the three; or, at least, to inquire into the second only far enough to answer the first. In the trial and decision of the second and third questions, on their merits, the United States is, in our opinion, required to be present and heard as an indispensable party. Whether or not the latter questions can even be tried, depends upon whether the United States consents to be sued.
The Government has challenged the power of this court, as presently constituted,
to pass upon the motion to dismiss; its theory being that as no constitutional issue is presented by the motion, the court lacks jurisdiction, and that a single trial judge, acting alone, should have passed upon it.
We have no doubt that a single judge could have passed upon the motion of defendant Ickes.
While it is improper for such a judge to dismiss a complaint on the merits where an interlocutory injunction is sought upon constitutional grounds,
it is, nevertheless, not only appropriate for him carefully to scrutinize the complaint to ascertain whether a substantial claim of unconstitutionality has been presented,
but it is his duty to do so,
in order to determine whether the case is one requiring disposition by a special court of three judges.
The lack of a substantial question of constitutional law may appear either because it is obvious from a reading of the statute or because it so clearly results from previous decisions of the Supreme Court as to foreclose the subject.
As we have pointed out, in the present case, an examination of the statutes, and of the cases which interpret them, reveals that the United States is an indispensable party to the present suit and no question of constitutionality is involved in arriving at that conclusion.
Consequently, it was the duty of the single judge to decide that the United States was an indispensable party. Having done so it was his duty to dismiss the complaint.
But power in the single trial judge is not necessarily inconsistent with similar power in the special court once it has been convened.
After all it, too, is a district court, presumably vested with all necessary and proper powers. No limitation appears in the statute upon the power of the special court to act with reference to such preliminary questions.
In several cases such courts have acted upon preliminary questions.
And, no doubt, the unnecessary participation of two additional judges would not invalidate the court's action in any event,
or cut off any right or privilege of appeal.
But if it is not necessary for our decision that we should determine or declare the limits of power of the special court, we should avoid doing so; leaving performance of that duty to the Supreme Court, if and when it becomes necessary. Assuming that this court has power to act, it does not necessarily follow that it should act.
As we read the decisions of the Supreme Court the determining consideration for us is one of propriety rather than of power. In a number of situations, and in a number of cases, it has been held that courts should voluntarily refrain from using or asserting power.
Where the use or assertion of power might be destructive of a well defined purpose of law or of a declared public policy such voluntarily imposed judicial restraint may be commendable.
There seems to be no doubt of the propriety of action by the special three judge court -- following the proper reference of a case to it -- as to all questions involved in the litigation necessary for disposition of the prayer for injunction.
Presumably, it is proper, also, for the special court to act upon preliminary matters, where they are inextricably tangled with others which it is required to decide.
The Supreme Court has said, however, that (1) the three judge procedure is an extraordinary one, imposing a heavy burden on federal courts, with attendant expense and delay; a procedure, designed for a specific class of cases, sharply defined, which should not be lightly extended;
(2) 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, with no support therefor in fact or law;
(3) if the right of direct appeal were extended to all cases in which such allegations appear, the restrictions placed upon appellate review in the Supreme Court, by the jurisdictional Act of February 13, 1925, would be measurably impaired;
(4) "when it becomes apparent that the plaintiff has no case for three judges, though they may have been properly convened, their action is no longer prescribed * * *;"
(5) and in such a case the statute contemplates that a court of three judges shall not continue to act.
In view of these instructions, and without more, the impropriety of action by us in the present case seems obvious. The clear intent of the Supreme Court is further emphasized by its action, in a similar case, reversing and remanding the case to the District Court for further proceedings to be taken independently of the statute.
It is true that, in a sense, the question presented here is one of first impression and that the present case can be distinguished from some, at least, of the cited decisions of the Supreme Court, on the ground that the complaint poses a controversy which, considered on the merits of its allegations alone, brings the case unquestionably within the terms of the statute.
However, the complaint also shows upon its face that the United States is an indispensable party; hence, as we have indicated, the complaint must be dismissed.
Moreover, even if we look beyond the motion of defendant Ickes and note the presence of an issue between plaintiffs and defendant Fraley which might otherwise have made proper, action by a three judge court,
that is not sufficient, under the circumstances previously described, and in the absence of the United States as a party, to continue the present court in existence.
The result is to make action by a three judge court just as inappropriate as in the cited decisions of the Supreme Court.
It may be argued, persuasively, that convenience and the desirability of expedition in disposing of a case such as that here presented points to action by the special court instead of reference back to a single judge.
On the other hand, compliance with the instructions of the Supreme Court seems calculated, in the long run, to result in greater good than will the satisfaction of convenience in a particular case. Repeated, though unreproved, indulgence in impropriety cannot form the basis for proper practice.
And if, on the other hand, a single judge should err on the side of caution in not requesting the convening of a special court, there is process available to test the propriety of his action.
Presumably the same remedy is available where a three judge court errs in refusing to act upon a case properly presented to it for determination.
Our decision is, therefore, that this court, as presently constituted, should refrain from passing on the motion. The case is remitted to Mr. Justice LETTS, sitting as a single judge, for appropriate action.