delivered the opinion of the Court.
This is an appeal under § 266 of the Judicial Code from a decree of the District Court for Western Oklahoma, three judges sitting, which dismissed the cause for want of equity jurisdiction.
On appeal the state supreme court affirmed the order.
Upon affirmance by the- state supreme court of the Commission’s earlier order, Wilson & Company brought suit in the state district court, joining as defendants the Oklahoma Gas & Electric Company and the sureties on the supersedeas bonds, to recover the amount paid for gas in excess of the rate prescribed by the earlier order of the Commission. That suit was defended upon the' ground, among others, of the constitutional invalidity of the order. Judgment was given for Wilson & Company, from which an appeal was taken and is now pending in the state supreme court.
Following this judgment the present suit was brought upon a bill of complaint which set up the invalidity of the order, alleged that the action of the state supreme court in affirming it was legislative not judicial, see Oklahoma Gas & Electric Co. v. Wilson & Co., Inc., 54 F. (2d) 596, and prayed an injunction restraining appellees from taking any steps to enforce it. The court below construed this as asking both that the state officers be enjoined from *389 enforcing the order and that Wilson & Company be restrained from prosecuting its pending suit in the state courts to recover the excess payments for gas. Upon the trial, the court below made its finding, not assailed here, that no penalties could be imposed for non-compliance with the challenged order, as it had been suspended by supersedeas in the proceedings to review it before the Supreme Court of Oklahoma, and while they were pending it had become inoperative by reason of the order of the Commission establishing the new rate. It found that “ there is no suggestion in the record of any intention on the part of any of the officials of Oklahoma to undertake to impose any statutory penalties for failure to' comply with the order.” The court concluded that there was no basis for relief by injunction against state officials, and that the only issue left in the case was the right asserted by appellees to enjoin prosecution of the suit of Wilson & Company in the state courts, and that as the alleged invalidity of the Commission’s order had been interposed as a defense in that suit and had been passed upon by the state court, there was no occasion for relief by a federal court of equity.
The appellants insist here, as they did below, that the district court of Oklahoma is without jurisdiction to pass upon the issue of the invalidity of the order, since by § 20, Art. 9 of the state constitution, exclusive jurisdiction to review or set aside an order of the Commission is conferred on the state supreme court. See
Pioneer Tel. & Tel. Co.
v.
State,
*390 By § 266 of the Judicial Code, suits, in which an interlocutory injunction is sought and pressed, to restrain any state officer from enforcing or executing ,a state statute or an order of a state commission, on the ground of its unconstitutionality, are required to be tried before a court of three judges. The section provides that “ a direct appeal to the Supreme Court may be taken from a final decree granting or denying a permanent injunction in such suit.” Our jurisdiction to hear the present appeal is challenged and as this is the only provision authorizing the appeal to this Court, it is necessary at the outset to determine whether this is “ such suit.”
The procedure prescribed by § 266 may be invoked only if the suit is one to restrain the action of state officers.
Ex parte Public National Bank,
*391
The allegations against appellee officers, it is true, present on their face every prerequisite to three judge action. But when it became apparent, as it did upon the final hearing, that there was never any basis for relief of any sort against the state officers, and that the only matter in controversy was the right of Wilson & Company to recover the alleged excess payments for gas, there was no longer any occasion for proceeding under § 266. The issue is not one of the federal jurisdiction of the district court, see
Healy
v.
Ratta, ante,
p. 263;
Ex parte Poresky,
The three judge procedure is an extraordinary one, imposing a heavy burden on federal courts, with attendant expense and delay. That procedure, designed for a specific class of cases, sharply defined, should not be lightly extended.
Ex parte Collins, supra,
at 569. 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 alleging that the suit is one to restrain action of state officers, with no support whatever in fact or law. Compare
Pacific Elec. Ry. Co.
v.
Los Angeles,
Although without jurisdiction to hear the merits of the appeal, this Court, in the exercise of its appellate jurisdiction, has- authority to give such directions as may be appropriate to enforce the limitations of § 266, and to conform the procedure to its requirements. And we may frame our order in ,a way that will save to the appellants their proper remedies.
Gully
v.
Interstate Natural Gas Co., ante,
p. 16; see
Gulf, C. & S. F. Ry. Co.
v.
Dennis,
By mistakenly appealing directly to this Court appellants have lost their opportunity to have the decree below reviewed on its merits, as the time for appeal to the Circuit Court of Appeals has expired. Compare
Healy
v.
Ratta,
Costs will be awarded against the appellants. See Mansfield, Coldwater & Lake Michigan Ry. Co. v. Swan, 111 U.S, 379, 387.
Decree vacated.