Opinion of the Court. 362 U.S. appealed to this Court under § 266 from the interlocutory order of the three-judge court. As indicated, this Court held that the final order of the single judge in Lemke I was properly appealed to the Court of Appeals under § 238 because of the additional nonconstitutional basis for District Court jurisdiction. But in Lemke II this Court took jurisdiction over all issues presented in the direct appeal under § 266 from the interlocutory order of the three-judge court. See also Shafer v. Farmers Grain Co., 268 U. S. 189, a case virtually identical with Lemke II, in which this Court also took jurisdiction over all questions in a § 266 direct appeal from an interlocutory injunction granted by a three-judge court. The problem was greatly simplified in 1925 when § 266 was amended to require three-judge courts for the granting of both interlocutory and permanent injunctions on grounds of federal unconstitutionality, and § 238, while substantially amended to reduce the scope of our general appellate jurisdiction, so far as here pertinent, merely incorporated the provision for direct appeals to this Court from injunctions granted or denied under § 266. We do not find in these amendments any intention to curtail either the jurisdiction of three-judge courts or our jurisdiction on direct appeal from their orders. Indeed, the cases since 1925 have continued to maintain the view that if the constitutional claim against the state statute is substantial, a three-judge court is required to be convened and has jurisdiction, as do we on direct appeal, over all grounds of attack against the statute. E. g., Sterling v. Constantin, 287 U. S. 378, 393-394; Railroad Comm'n of California v. Pacific Gas & Electric Co., 302 U. S. 388, 391; Public Service Comm'n v. Brashear Freight Lines, 312 U. S. 621, 625, n. 5. To hold that only one judge may hear and decide an action to enjoin the enforcement of a state statute on both constitutional and nonconstitutional grounds would be 73 Opinion of the Court. to ignore the explicit language and manifest purpose of § 2281, which is to provide for a three-judge court whenever an injunction sought against a state statute may be granted on federal constitutional grounds. Where a complaint seeks to enjoin a state statute on substantial grounds of federal unconstitutionality, then even though nonconstitutional grounds of attack are also alleged, we think the case is one that is "required by . . . Act of Congress to be heard and determined by a district court of three judges." 28 U. S. C. § 1253. (Emphasis added.) We, therefore, hold that we have jurisdiction of this direct appeal. We turn now to the merits. The Court is of the view that the District Court was in error in holding that, because appellants had not contested the validity of § 792 nor sought abatement of appellees' condemnation of their avocados, there was no "existing dispute as to present legal rights," but only "a mere prospect of interference posed by the bare existence of the law in question [§ 792]," and in accordingly dismissing the action for want of jurisdiction. As earlier stated, the complaint alleges that, since the issuance of the Secretary's Florida Avocado Order No. 69 in 1954, appellants have made more than a score of shipments in interstate commerce of Florida avocados to and for sale in California, and appellees, or their agents, have in effect consistently condemned those avocados for failure to contain 8% or more of oil by weight, thus requiring appellants to prevent destruction and complete loss of their shipments-to reship the avocados to and sell them in other States, all in violation of the Commerce and Equal Protection Clauses of the United States Constitution as well as the Marketing Agreement Act of 1937. It is therefore evident that there is an existing dispute between the parties as to present legal rights amounting to a justiciable controversy which appellants are entitled to have determined on the FRANKFURTER, J., dissenting. 362 U.S. merits. In these circumstances, the fact that appellants did not contest the validity of § 792 nor seek abatement of appellees' condemnation of the avocados in the California state courts-which, because of the time period necessarily involved, would have resulted in the complete spoilage and loss of the product-does not constitute an impediment to their right to seek an injunction in the federal court against enforcement of § 792 on the ground that it violates both the Constitution of the United States and the Federal Agricultural Marketing Agreement Act of 1937. The judgment is therefore reversed and the cause is remanded to the District Court for further proceedings not inconsistent with this opinion. Reversed and remanded. MR. JUSTICE DOUGLAS joins in the part of the opinion that passes on the merits, the Court having held, contrary to his view, that the case is properly here on direct appeal from a three-judge court. MR. JUSTICE FRANKFURTER, whom MR. JUSTICE DOUGLAS joins, dissenting. The statute providing for three-judge Federal District Courts, with direct appeal to this Court, in cases seeking interlocutory injunctions against the operation of state statutes on constitutional grounds, was enacted in 1910. 36 Stat. 557. It was amended in 1925 to apply to applications for final as well as interlocutory injunctive relief. 43 Stat. 938. Since that time this Court has taken jurisdiction by way of direct appeal in several cases like the present one, where a state statute was sought to be enjoined both on federal constitutional and non-constitutional grounds. See Herkness v. Irion, 278 U. S. 92; Sterling v. Constantin, 287 U. S. 378, 393 (limited in Phil 73 333 FRANKFURTER, J., dissenting. lips v. United States, 312 U. S. 246); Spielman Motor Sales Co. v. Dodge, 295 U. S. 89; Parker v. Brown, 317 U. S. 341.1 In none of these cases, however, was our jurisdiction challenged by the litigants because non-constitutional as well as constitutional relief was sought, nor did the Court notice the existence of a question as to our jurisdiction on that score. We should therefore feel free to apply Mr. Chief Justice Marshall's approach in a similar situation to unconsidered assumptions of jurisdiction: "No question was made, in that case, as to the jurisdiction. It passed sub silentio, and the court does not consider 1 Prior to the 1925 extension of this three-judge-court statute to cover applications for final injunctions, there were also cases like the present one, where non-constitutional as well as constitutional claims were made, in which the Court accepted jurisdiction. See Louisville & Nashville R. Co. v. Garrett, 231 U. S. 298; Lemke v. Homer Farmers Elevator Co., 258 U. S. 65 (Lemke II); Cavanaugh v. Looney, 248 U. S. 453; Shafer v. Farmers Grain Co., 268 U. S. 189. Of these cases, only Louisville & Nashville R. Co. v. Garrett gave any attention whatsoever to jurisdictional considerations, and in that case there was no direct challenge to this Court's jurisdiction of the whole case under the three-judge statute on the ground that nonconstitutional as well as constitutional claims were made. But there is an even more fundamental reason for discounting these pre-1925 cases as authority regarding the jurisdictional problem in the present case. As Garrett and these other cases were decided prior to the 1925 Jurisdictional Act, which drastically shrunk this Court's jurisdiction on appeal, they arose at a time when the scope of direct appellate jurisdiction here over decisions of ordinary one-judge District Courts was much broader than it now is, and in fact applied under § 238 of the Judicial Code to all constitutional cases, including cases like the present one involving federal statutory grounds for relief in addition to constitutional grounds. See Spreckels Sugar Refining Co. v. McClain, 192 U. S. 397, 407-408; Macfadden v. United States, 213 U. S. 288. Thus the results in these pre-1925 cases, permitting the same scope of direct appeal to this Court in three-judge cases as § 238 then permitted in one-judge cases, were not as obviously out of harmony with the scheme of the federal judicial system in their day as I believe is the decision which the Court makes today. 541680 O-60-10 FRANKFURTER, J., dissenting. 2 362 U.S. itself as bound by that case." United States v. More, 3 Cranch 159, 172. See also Mr. Chief Justice Marshall in Durousseau v. United States, 6 Cranch 307, and Mr. Justice Brandeis dissenting in King Mfg. Co. v. Augusta, 277 U. S. 100, 135, n. 21: "It is well settled that the exercise of jurisdiction under such circumstances [where counsel did not question our jurisdiction] is not to be deemed a precedent when the question is finally brought before us for determination." I therefore approach the question of our jurisdiction in the present case as open, calling for a thorough canvass of the relevant jurisdictional factors. The Court does not undertake such a canvass, but relies instead upon the cases cited and upon what it deems explicit statutory language and plainly manifested congressional intent. Consideration of what are to me the relevant factors leads me to dissent from the Court's conclusion that we have direct appellate jurisdiction in this case. Appellants' complaint seeks injunction against the operation of § 792 of the California Agricultural Code on the grounds that it is in conflict with the Federal Agricultural Marketing Agreement Act of 1937, 7 U. S. C. § 601 et seq., and the Commerce and Equal Protection Clauses of the United States Constitution. The complaint requested the convening of a three-judge District Court to adjudicate these claims. A three-judge court was convened and, after hearing, it entered a judgment dismissing the action on the ground that no justiciable controversy existed. 169 F. Supp. 774. A direct appeal was taken to this Court pursuant to 28 U. S. C. § 1253. The Court now holds that three judges were required to adjudicate appel 2 The Court's Rules 15, par. 1 (c) (1) and 23, par. 1 (c) emphasize the doctrine that a sub silentio exercise of jurisdiction is not controlling as precedent: "Only the questions set forth in the jurisdictional statement [or petition] or fairly comprised therein will be considered by the court." |