(dissenting).
A three-judge court was assembled in this case to determine the constitutionality of the state statute that was involved and not for any other purpose. When it performed that function it should have referred all other issues in the case to the proper Judge of the District Court of the United States for the Western District of Missouri for appropriate proceedings, and such action would have been in accordance with the rule announced by the court, as follows: “We think the proper procedure in such a situation as here presented requires that the three-judge court which has discharged its essential function of adjudicating upon constitutionality, should, upon presentation of the facts by the parties, remit such ancillary litigation to the District Judge for proceedings ‘to be taken independently of Section 266 of the Judicial Code.’ ” I fully approve of this rule and think it should be followed in this case.
The court has cited United Motors Service, Inc., v. Tropic-Aire, Inc., 8 Cir., 57 F. 2d 479, as authority for the principle that dismissal of the issue presented by the counterclaim was within the jurisdiction of the court. That was a patent case where a 'District Judge was sustained in holding that, in dissolving a temporary injunction against patent infringement, the court had discretion to retain the case and determine damages under the injunction bond in an ancillary proceeding or leave the parties to an action at law. The principle there announced has no applicability to the jurisdiction of a three-judge court.
In my opinion, the three-judge court in this case was without jurisdiction to dismiss defendant’s counter-claim.