237 F. Supp. 963 | D.N.M. | 1965
The plaintiff seeks to enjoin the enforcement of an order of the State Corporation Commission of New Mexico holding that plaintiff is in the business of transporting crude oil by motor vehicle for hire both in intrastate and interstate commerce and ordering it to cease and desist therefrom until it acquires lawful authority to engage in such activity. A three-judge district court was convened pursuant to 28 U.S.C. § 2281 and extensive testimony taken. At the conclusion of the hearing the court invited counsel to comment on the need for a three-judge court. The briefs of all parties insist that such a court is required.
Notwithstanding the position of the litigants, we believe that under Kesler v. Department of Public Safety of Utah, 369 U.S. 153, 82 S.Ct. 807, 7 L.Ed.2d 641 and like cases, we are charged with the responsibility of determining whether this is a proper case for convening a three-judge district court. The answer is not easy.
Under § 2281 a three-judge court is necessary when an injunction is sought on the ground of federal unconstitutionality of a state statute.
In the case at bar the plaintiff does not argue that the New Mexico statutes in question
In our opinion the issue of whether the evidence sustains the findings of the Commission raises only a question of erroneous action which does not effect general state policy. We do not have a substantial claim of unconstitutionality requiring a three-judge court. The case must be left for disposition by the single judge to whom it was originally assigned.
Accordingly, it is ordered that the three-judge court shall take no further action herein and that the cause shall be concluded by the Honorable Howard C. Bratton, Judge of the United States District Court for the District of New Mexico.
. The dissenting opinion in the Kesler case says (369 U.S. 175, 82 S.Ct. 820): “When to convene a three-judge court has always been a troublesome problem of federal jurisdiction and a review of the cases involving that question illustrates the difficulties the lower federal courts have had in applying the principles formulated by this Court.” See also 1A Moore, Federal Practice, ¶0.205, pp. 2231-2242 (2d ed.); Wright, Federal Courts, § 50, p. 162.
. Florida Lime and Avocado Growers v. Jacobsen, 362 U.S. 73, 80, 80 S.Ct. 568, 4 L.Ed.2d 568; Query v. United States, 316 U.S. 486, 488, 489, 62 S.Ct. 1122, 86 L.Ed. 1616.
. California Water Serv. Co. v. City of Redding, 304 U.S. 252, 254, 58 S.Ct. 865, 82 L.Ed. 1323; Ex parte Poresky, 290 U.S. 30, 31, 54 S.Ct. 3, 78 L.Ed. 152, rehearing denied 301 U.S. 712, 57 S.Ct. 787, 81 L.Ed. 1334.
. Marshall v. Sawyer, 9 Cir., 301 F.2d 639, 645, citing Ex parte Williams, 277 U.S. 267, 48 S.Ct. 523, 72 L.Ed. 877, and Gully v. Interstate Natural Gas Co., 292 U.S. 16, 54 S.Ct. 565, 78 L.Ed. 1088.
. The New Mexico Motor Carrier Act, § 64-27-1 et seq., N.M.S.A.1953 Comp.
. Andrew G. Nelson, Inc. v. Jessup, S.D.Ind., 134 F.Supp. 218, 221.