Majority
The appeals are dismissed and the District Court is directed to dismiss the bill in each case. See United States v. Anchor Coal Co., 279 U. S. 812 . Mr. Justice Black and Mr. Justice Murphy are of the opinion that probable jurisdiction should be noted. Mr. Justice Rutledge is of the opinion that the question of jurisdiction should be postponed to the hearing of the cases on the merits and has set forth his views in an opinion {infra) which he has filed.
Reported below: 68 F. Supp. 624 , 744.
These appeals seek to invalidate Georgia’s county unit system for selecting candidates for election to public office. No. 531 relates to the office of Representative in Congress, No. 532 to that of Governor. In each instance the basic substantive claim is that the system operates to deprive the appellants and other voters of the equal protection of the laws in respect to their rights of suffrage, contrary to
The District Court in each case denied applications for interlocutory injunctions. At the same time it formally declined to pass finally upon motions to dismiss the causes, although stating “We consider them, however, on the general question of the grant of interlocutory relief.”[2] The court then went on to deny the applications upon grounds which, if sustained, would conclude the entire controversy in each case in all but formal entry of an. order for dismissal.[3] The principal ground of decision in both cases was reliance upon Colegrove v. Green, 328 U. S. 549 , decided June 10, 1946, rehearing denied this day, 329 U. S. 825 , as precluding equitable relief. In No. 532 it was said this was required “whether it be that the subject matter is not of equitable cognizance, or merely that equity should withhold its hand.”
In each case, however, the court refused to rest on this ground alone. In No. 531 it went on to rule, apparently, that the county unit system is imposed by party action, not by state action; and that the system was not being
1 The jurisdiction of this Court is invoked under §§ 238 and 266 of the Judicial Code as amended, 28 U. S. C. §§ 345 , 380. In No. 532 it is not questioned that the attack is upon the validity of a state statute. In No. 531 one ground of appellee’s motion to dismiss the appeal is that the appellant’s suit attacks, not a state statute, but the rules and action of a political party. Cf. Ex parte Collins, 277 U. S. 565 , 569. The two decisions were rendered by three-judge District Courts, constituted identically, pursuant to § 266 of the Judicial Code.
2 The quoted language is from the opinion in No. 532. A similar statement appears in the opinion in No. 531.
3 In view of this fact an affirmance of the judgments here would preclude the District Court from taking any other action than to dismiss the causes, upon their'being remanded to it.
It may be that the orders now in appeal have become moot in part because actions in execution of the challenged Georgia laws which appellants sought to have restrained have now taken place.[4] But in No. 532 in one respect at least injunctive relief prayed for still could be given, if appellants should be found, on hearing, entitled to have it.[5] And in each case declaratory relief, appropriate in many instances where aid by way of injunction cannot be afforded,[6] is sought.
Obviously the appeals present questions related closely to the issues in Colegrove v. Green, but in my opinion not
4 Thus, in No. 532, party officials have certified the results of the primary elections to the Secretary of State and he in turn has sent out the forms for ballots to county ordinaries on the basis of those certifications. The applications sought to restrain these acts.
5 By amendment, to avoid the effect of the actions taken as set forth in note 4, appellant sought to restrain the Secretary of State from certifying the returns from the general election to the General Assembly.
6 It was to avoid the limitations resulting from the fact that injunc-tive or other immediately effective equitable relief could not be given that relief by way of declaratory judgment was authorized by Congress. This Court has not yet determined that declaratory relief cannot be given beyond the boundaries fixed by the preexisting jurisdiction in equity, compare Nashville, C. & St. L. R. Co. v. Wallace, 288 U. S. 249 , 262, with Giles v. Harris, 189 U. S. 475 , 486, although three *678 members of the Court announced their view apparently to that effect in Colegrove v. Green, 328 U. S. 549 , 551-552. The outer boundaries of jurisdiction under the declaratory procedure remain largely undetermined. Cf. Judicial Code §274d, 28 U. S. C. §400 ; Borchard, Declaratory Judgments (2d ed. 1941) 365-367, 766-788, 868-874.
7 Three of the justices so ruling thought the relief should be denied for want of jurisdiction. 328 U. S. 549 , 550, opinion of Mr. Justice FRANKFURTER.
8 The discretionary exercise or nonexercise of equitable or declaratory judgment jurisdiction, see Great Lakes Dredge & Dock Co. v. Huffman, 319 U. S. 293 , 300; Di Giovanni v. Camden Fire Ins. Assn., 296 U. S. 64 , 70, in one case is not precedent in another case where the facts differ. Hale v. Allinson, 188 U. S. 56 , 77-78, quoted in Di Giovanni v. Camden Fire Ins. Assn., supra, at 71 .
9 See note 3.