the exceptional cases where that order is necessary to preserve the status quo. It must be confessed, however, that the practice of the courts does not always accord with the theory. It is not uncommon to turn the temporary restraining order into an order that is in all respects the equivalent of an ex parte injunction order. Thus the good. nature of judges and pertinacity of counsel often change the established practice, and not always with the effect of furthering the ends of justice.

SAME-SAME-JUDGES WHO MAY ISSUE

INJUNCTIONS

156. Injunctions may be issued by Supreme Court justices or district judges, and in exceptional cases by circuit judges.

Section 264 of the Judicial Code provides what judges may issue injunctions. It reads:

"Writs of injunction may be granted by any justice of the Supreme Court in cases where they might be granted by the Supreme Court; and by any judge of a district court in cases where they might be granted by such court. But no justice of the Supreme Court shall hear or allow any application for an injunction or restraining order in any cause pending in the circuit to which he is allotted, elsewhere than within such circuit, or at such place outside of the same as the parties may stipulate in writing, except when it cannot be heard by the district judge of the district. In case of the absence from the district of the district judge, or of his disability, any circuit judge of the circuit in which the district is situated may grant an injunction or restraining order in any case pending in the district court, where the same might be granted by the district judge."

Under this the Supreme Court judges issue injunctions only in exceptional cases.20

SAME-SAME-INJUNCTIONS TO STATE COURTS

157. The federal courts may issue injunctions to the parties in state courts:

(a) In limited liability proceedings.

(b) In bankruptcy proceedings.

(c) Whenever it becomes necessary to protect their own jurisdiction previously acquired, or

(d) When an injunction is necessary to relief in a case in which it has had prior jurisdiction.

Criminal proceedings in a state court will not be en

joined.

Section 265 of the Judicial Code provides as follows: "The writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a state, except in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy."

Notwithstanding the general language of this provision, a federal court will refrain from issuing injunctions to state courts only when the state court has first acquired jurisdiction.30

But it will issue injunctions to the state courts, or rather to the parties, wherever it is necessary to protect its own jurisdiction previously acquired, or when necessary to relief in a case of which it has had prior jurisdiction.31

29 Searles v. Jacksonville, P. & M. R. Co., 2 Woods, 621, Fed. Cas. No. 12,586. See "Courts," Dec. Dig. (Key-No.) § 262; Cent. Dig. § 797.

30 In re Watts, 190 U. S. 1, 23 Sup. Ct. 718, 47 L. Ed. 933; MORAN v. STURGES, 154 U. S. 256, 14 Sup. Ct. 1019, 38 L. Ed. 981; Kansas City Gas Co. v. Kansas City (D. C.) 198 Fed. 500. See "Courts," Dec. Dig. (Key-No.) §§ 260, 282, 508; Cent. Dig. §§ 1418– 1430.

31 Dietzsch v. Huidekoper, 103 U. S. 494, 26 L. Ed. 497. See "Courts," Dec. Dig. (Key-No.) § 508; Cent. Dig. §§ 1418–1430.

The prohibition against injunctions to the state courts applies not simply to the courts or their officers, but to the parties as well. A federal court will not enjoin the parties from a proceeding in a state court any more than it will enjoin the court officers.82

Criminal proceedings in a state court will not be enjoined.33

This statute was first pased in 1793. The limited liability act of 1851 is not affected by it, and the federal courts will issue injunctions to state courts under that act to prevent vessel owners from being proceeded against in the state courts.34

The right to issue injunction proceedings in bankruptcy cases is expressly reserved by this act; in fact, it is allowable to enjoin proceedings in state courts which contravene the provisions of the bankrupt act even by such summary process as by rule to show cause.

35

SAME-SAME-INJUNCTIONS TO STATE OFFICIALS OR BOARDS

158. Injunctions to state officials or boards intended to question the constitutionality of state statutes can only be issued by a court of three judges, a majority of whom must concur, and after five days' no

32 Wagner v. Drake (D. C.) 31 Fed. 849; Dial v. Reynolds, 96 U. S. 340, 24 L. Ed. 644. See "Courts," Dec. Dig. (Key-No.) § 508; Cent. Dig. §§ 1418-1430.

33 Harkrader v. Wadley, 172 U. S. 148, 19 Sup. Ct. 119, 43 L. Ed. 399. See "Courts," Dec. Dig. (Key-No.) § 508; Cent. Dig. §§ 1418

1430.

34 Providence & N. Y. S. S. Co. v. Hill Mfg. Co., 109 U. S. 578, 3 Sup. Ct. 379, 27 L. Ed. 1038; MORAN v. STURGES, 154 U. S. 256, 14 Sup. Ct. 1019, 38 L. Ed. 981; In re Whitelaw (D. C.) 71 Fed. 733. See "Courts," Dec. Dig. (Key-No.) § 508; Cent. Dig. §§ 1393, 14181430.

35 White v. Schloerb, 178 U. S. 542, 20 Sup. Ct. 1007, 44 L. Ed. 1183. See "Bankruptcy," Dec. Dig. (Key-No.) § 217; Cent. Dig. §§ 323, 330, 340; "Courts," Cent. Dig. § 1424.

tice. A temporary restraining order may issue, and the case is expedited in every way possible, both in the inferior and appellate court.

Section 266 of the Judicial Code is an addition to preexisting law. As amended March 4, 1913 (37 Stat. 1013, c. 160), it reads:

"No interlocutory injunction suspending or restraining the enforcement, operation, or execution of any statute of a state by restraining the action of any officer of such state in the enforcement or execution of such statute, or in the enforcement or execution of an order made by an administrative board or commission acting under and pursuant to the statutes of such state, shall be issued or granted by any justice of the Supreme Court, or by any district court of the United States, or by any judge thereof, or by any circuit judge acting as district judge, upon the ground of the unconstitutionality of such statute, unless the application for the same shall be presented to a justice of the Supreme Court of the United States, or to a circuit or district judge, and shall be heard and determined by three judges, of whom at least one shall be a justice of the Supreme Court or a circuit judge, and the other two may be either circuit or district judges, and unless a majority of said three judges shall concur in granting such application. Whenever such application as aforesaid is presented to a justice of the Supreme Court, or to a judge, he shall immediately call to his assistance to hear and determine the application two other judges: Provided, however, that one of such three judges shall be a justice of the Supreme Court, or a circuit judge. Said application shall not be heard or determined before at least five days notice of the hearing has been given to the governor and to the attorney general of the state, and to such other persons as may be defendants in the suit: Provided, that if of opinion that irreparable loss or damage would result to the complainant unless a temporary restraining order is granted, any justice of the

Supreme Court, or any circuit or district judge, may grant such temporary restraining order at any time before such hearing and determination of the application for an interlocutory injunction, but such temporary restraining order shall remain in force only until the hearing and determination of the application for an interlocutory injunction upon notice as aforesaid. The hearing upon such application for an interlocutory injunction shall be given precedence and shall be in every way expedited and be assigned for a hearing at the earliest practicable day after the expiration of the notice hereinbefore provided for. An appeal may be taken direct to the Supreme Court of the United States from the order granting or denying, after notice and hearing, an interlocutory injunction in such case. It is further provided that if before the final hearing of such application a suit shall have been brought in a court of the state having jurisdiction thereof under the laws of such state, to enforce such statute or order, accompanied by a stay in such state court of proceedings under such statute or order pending the determination of such suit by such state court, all proceedings in any court of the United States to restrain the execution of such statute or order shall be stayed pending the final determination of such suit in the courts of the state. Such stay may be vacated upon proof made after hearing, and notice of ten days served upon the attorney general of the state, that the suit in the state courts is not being prosecuted with diligence and good faith." This act applies only to state statutes and state officers, not to municipal ordinances or municipal officers.3°

36 Cumberland Telephone & Telegraph Co. v. Memphis (D. C.) 198 Fed. 955. See "Courts," Dec. Dig. (Key-No.) §§ 102, 508.

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