Ayrshire Collieries Corp v. United States, 331 U.S. 132 (1947)

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Ayrshire Collieries Corp v. United States

No. 467

Argued April 7, 8, 1947
Decided April 28, 1947
331 U.S. 132

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES

FOR THE SOUTHERN DISTRICT OF INDIANA

Syllabus

1. Under the provision of the Urgent Deficiencies Act of October 22, 1913, 28 U.S.C. § 47, requiring that an application to enjoin or set aside any order of the Interstate Commerce Commission be "heard and determined" by three judges, a judgment based upon a determination by only two judges is void -- even though all three judges were present at the hearing and one of them was prevented by illness from participating in the determination of the case. Pp. 135-139.

2. The fact that a prayer for an interlocutory injunction was not pressed and that the decision was only on an application for a permanent injunction makes no difference, since the statutory requirement that three judges hear and determine an application applies to suits for permanent, as well as interlocutory, injunctions. Judicial Code § 266 distinguished. Pp. 139-144.

Judgment vacated and appeal dismissed.

Two judges of a three-judge court, during the absence of the third, denied a permanent injunction against enforcement of an order of the Interstate Commerce Commission. On appeal to this Court, the judgment is vacated, and the appeal is dismissed. P. 144.