Before CLARK, MOORE and FRIENDLY, Circuit Judges.
FRIENDLY, C.J.: These appeals are in two actions brought in the Southern District of New York against the Waterfront Commission of New York Harbor, by Henry F. Bell, one as President and in behalf of the members of Local 1804, International Longshoremen's Association, and the other as President and in behalf of the members of Local 1804-1, International Longshoremen's Association. The complaints sought injunctions against subpoenas duces tecum issued by the Commission requiring Bell to appear as a witness and testify in an investigation being conducted pursuant to Article IV of the Waterfront Commission Compact concerning waterfront practices and conditions generally within the Port of New York District, and to produce the basic financial records, social security reports and minutes of the respective locals from January 1, 1956 to date. The purpose and general nature of the Compact between New York and New Jersey creating the Waterfront Commission of New York Harbor, New York Laws, 1953, Chap. 882, New Jersey Laws, 1953, ch. 202 and 203, approved by Congress in the Act of August 12, 1953, ch. 407, 67 Stat. 541, have been described in Linehan v. Waterfront Commission, 116 F. Supp. 683 (S.D.N.Y. 1953) and Staten Island Loaders, Inc. v. Waterfront Commission, 117 F. Supp. 308 (S.D.N.Y. 1953), both affirmed 347 U.S. 439 (1954), and in DeVeau v. Braisted, Supreme Court of the United States, decided June 6, 1960. Here we need refer only to the provisions of Article IV of § 1 of Part I which empower the Commission:
"8. By its members and its properly designated officers, agents and employees, to administer oaths and issue subpoenas throughout both states to compel the attendance of witnesses and the giving of testimony and the production of other evidence;"
"11. To make investigations, collect and compile information concerning waterfront practices generally within the port of New York district and upon all matters relating to the accomplishment of the objective of this compact;"
"13. To make annual and other reports to the governors and legislatures of both states containing recommendations for the improvement of the conditions of waterfront labor within the port of New York district for the alleviation of the evils described in article I and for the effectuation of the purposes of this compact. Such annual reports shall state the commission's finding and determination as to whether the public necessity still exists for (a) the continued registration of longshoremen, (b) the continued licensing of any occupation or employment required to be licensed hereunder and (c) the continued public operation of the employment information centers provided for in article XII;"
In answer to the requests for injunctions respondent submitted the affidavit of its general counsel. This set forth that a prime purpose of the investigation was to determine whether the two locals, one of which, Local 1804, operating in Manhattan and New Jersey, avowedly does not include persons required to be registered or licensed by the Commission and the other of which, Local 1804-1, admittedly does, and two similar locals in Brooklyn and Staten Island, Locals 1277 and 1277-1, are in reality the same, so that the alleged disqualification of Bell under § 8 of Part III of the Waterfront Commission Act, the constitutionality of which was then sub judice in DeVeau v. Braisted, supra, for having been convicted of impersonating a police officer, would affect both Local 1804 and Local 1804-1 and the alleged disqualification of a vice president of Local 1277 for negligent homicide and robbery would affect Local 1277-1. The affidavit asserted also that the Commission had been engaged in an investigation "to determine the extent of criminal influence in the affairs of the International Longshoremen's Association and its affiliated locals" and wished "to gather all the relevant facts concerning these locals so that the Waterfront Commission might properly determine from the facts obtained whether any legislative recommendations should be made by the Commission" as contemplated by paragraphs 11 and 13 of Article IV of the Compact.
Although the complaints attacked the subpoenas on a multitude of grounds, these can be divided into two general categories. The first category attacked the Waterfront Commission Compact and the action of Congress in approving it as violating the commerce clause of the Constitution, Article I, § 8, by unconstitutional delegation to New York and New Jersey of powers reserved to the Congress, and the due process clause of the Fourteenth Amendment; we shall sometimes refer to this category as the constitutional claims. The second category challenged the Waterfront Commission Act, or certain portions of it, and the subpoenas, as invading a field occupied by the National Labor Relations Act of 1947, as amended, 29 U.S.C. §§ 141-67 and the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 519, 25 U.S.C. §§ 401-531; we shall sometimes call this category the preemption claims.
Judge DIMOCK held that the first category raised questions which, if substantial, could be determined only by a district court of three judges as provided in 28 U.S.C. § 2281 and that he was without jurisdiction in the absence of an application by the plaintiff for such a court; he added, however, that if plaintiff had so applied, he would have denied the application on the ground that the constitutional questions were not substantial. He held that the preemption claims did not require adjudication by a three-judge court and ruled adversely to plaintiff on the merits. Accordingly he denied the applications for injunctions and granted judgment dismissing the complaints, save for permitting these to stand undetermined insofar as they related to the production of social security reports; since the Waterfront Commission has withdrawn its request for these, this aspect of the case has become moot. This Court granted a stay pending an expedited appeal.
When the case was argued before us, it appeared to present at least two serious questions on the merits, namely, whether § 8 of Part III of the Waterfront Commission Act could stand consistently with § 504(a) of the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 519, and, if not, whether the subpoenas were sustainable nevertheless, as well as a number of questions as to the three-judge court requirement of 28 U.S.C. §§ 2281 and 2284, both as this relates to the jurisdiction of a single district judge to enter the judgments under appeal and as it concerns our jurisdiction to review them, 28 U.S.C. §§ 1291, 1292(a)(1) and 1253. The questions on the merits have now been almost wholly removed by the Supreme Court's decision in DeVeau v. Braisted, sustaining § 8 of Part III on all the grounds on which it is here attacked. However, we believe it will be useful to discuss the jurisdictional questions since attacks on the Waterfront Commission Act continue, e.g., Applegate v. Waterfront Commission, stay denied June 8, 1960, and similar questions arise in other cases in this Circuit.
I. The Constitutional Claims .
28 U.S.C. § 2281 provides that an injunction "restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes, shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title." The Linehan and Staten Island Loaders cases, supra, as well as O'Rourke v. Waterfront Commissioner, 118 F. Supp. 236 (S.D.N.Y. 1954), Bradley v. Waterfront Commission, 130 F. Supp. 303 (S.D.N.Y. 1955), and Wreiole v. Waterfront Commission, 132 F. Supp. 166 (S.D.N.Y. 1955), have assumed that an action to enjoin the Waterfront Commission Acts of New York and New Jersey as conflicting with the Federal Constitution is within § 2281. We follow this although we should not have thought it clear beyond argument, as an orginal question, either that a member or employee of the Waterfront Commission is "any officer of such State"*fn1 or that the Commission is engaged in enforcing "a statute of general application," Ex parte Collins, 277 U.S. 565, 568 (1928), or "of statewide concern," Rorick v. Board of Commissioners, 307 U.S. 208, 212 (1939), to which alone § 2281 applies.
If, in fact, the complaints had set forth a substantial claim of "unconstitutionality" as used in § 2281, requiring adjudication by a court of three judges, the district judge would not have been warranted in dismissing simply because plaintiff had not applied for such a court. Section 2284 directs that in any action "required by Act of Congress" to be so heard and determined, the district judge "on the filing of the application" shall immediately notify the chief judge of the circuit who shall then designate two other judges to serve as members of the court. The "application" referred to is "the application for injunction or other relief" described in the preceding sentence of § 2284(1), not an application for the convening of a court of three judges. This construction finds support in the statement of the Eighth Circuit that "there is no requirement in § 2284 that the applicant for the injunction must determine the need for a three-judge court and make request therefor" and "that the district judge to whom an application for an injunction is presented must exercise the responsibility not only of determining whether it is in fact a three-judge case or a single judge matter but also of taking the necessary action on this basis for enabling the case to be disposed of on its merits." Aaron v. Cooper, 261 F.2d 97, 105 (8th Cir. 1958).*fn2
We turn therefore to the alternate ground assigned by the district judge, namely, that the constitutional claims were "so insubstantial as not to warrant submission to a three-judge court." Ex parte Poresky, 290 U.S. 30 (1933), held that under § 266 of the Judicial Code, the predecessor of § 2281, a single judge could dismiss a complaint not asserting a substantial federal question since "the provision requiring the presence of a court of three judges necessarily assumes that the District Court has jurisdiction" which, in the absence of diversity of citizenship, would not exist unless such a question was presented; the statute "does not require three judges to pass upon this initial question of jurisdiction." Later the Act of April 6, 1942, c. 210, § 3, 56 Stat. 198, provided that "In any action in a district court wherein the action of three judges is required for the hearing and determination of an application for interlocutory injunction and the final hearing," certain functions might be performed by any one of the three judges, provided, however, that "such single judge shall not appoint, or order a reference to a master, or hear and determine any application for, or vacation of, an interlocutory injunction, or dismiss the action, or enter a summary or final judgment on all or any part of the action"; the substance of this now appears in 28 U.S.C. § 2284(5). A bar association had stated the amendment would overrule Ex parte Poresky, H.R. Rep. No. 1677, 77th Cong., 2d Sess. 5 (1942), and some commentators thought it had done so. See Berueffy, The Three-Judge Federal Court, 15 Rocky Mt. L. Rev. 64 (1942); Bowen, Note, 28 Minn. L. Rev. 131 (1944). However, the district courts, apparently without considering the 1942 amendment, continued to follow Ex parte Poresky, see 62 Harv. L. Rev. 1398, 1400 (1949). They were right in doing so.For § 3 of the 1942 Act applied only "in any action in a district court wherein the action of three judges is required," and Ex parte Poresky held there was no such requirement when the complaint did not assert a substantial federal claim. Moreover, as suggested in Hart & Wechsler, The Federal Courts and the Federal System, 852, the context makes it plain that the prohibition against dismissal by a single judge refers only to the situation "after a three-judge court has been properly called." The power of a single judge to dismiss in limine for want of a substantial constitutional question has been sustained, as to state action challenged under § 2281, in Jacobs v. Tawes, 250 F.2d 611 (4th Cir. 1957) and Carrigan v. Sunland-Tujunga Telephone Co ., 263 F.2d 568 (9th Cir.), cert. denied 359 U.S. 975 (1959), and, as to Federal legislation challenged under § 2282, in Wicks v. Southern Pacific Co ., 231 F.2d 130 (9th Cir.), cert. denied, 351 U.S. 946 (1956), White v. Gates, 253 F.2d 868 (D.C. Cir. 1958), cert. denied, 356 U.S. 973 (1958) and Eastern States Petroleum Corp. v. Rogers, 265 F.2d 593 (D.C. Cir.), appeal dismissed, 361 U.S. 805 (1959). Any other view would do violence both to the language of the statute and to common sense.
All the decisions last cited assume and some state that the courts ack of a substantial federal question, a complaint that would require a three-judge court if the constitutional claim were substantial. Such decisions necessarily hold that the appeal is not from "an order denying an injunction in any civil action, suit or proceeding required by any act of Congress to be heard and determined by a district court of three judges"; for if it were, § ...