(dissenting).
Agreeing with my brethren that the orders made by Judges Bicks and Dimock are of the sort which are ordinarily appealable,1 I would deny the motion to dismiss and would hear the appeals to decide first whether the single district judges had jurisdiction to act as they did and then proceed, if it is found that they did have jurisdiction, to consider the merits.
The appellees argue here, and my brethren agree with them, that even if these orders are appealable in form, no review of the merits may be made by this court. Since an injunction restraining the enforcement of a state statute on the ground that it violates the federal Con*431stitution may be issued only by a three-judge court, 28 U.S.C. § 2281, the appellees contend that the single district judge had no jurisdiction to entertain the application, and that this lack of jurisdiction may be attacked only by way of mandamus in the Supreme Court. The appellees, who thus find themselves in the odd posture of urging upon this court lack of jurisdiction in the district court in order to preserve for their benefit the very order which they claim was entered without jurisdiction, cite dictum in Stratton v. St. Louis S. W. Ry., 1930, 282 U.S. 10, 51 S.Ct. 8, 75 L.Ed. 135, in support of their position.2
It is clear beyond any doubt that if a district judge, without entering an appealable order, rules that he, sitting alone, will hear a request for an injunction restraining the enforcement of a state statute, the appropriate remedy for a party requesting a three-judge court is by writ of mandamus in the Supreme Court. E. g., Ex parte Bransford, 1940, 310 U.S. 354, 60 S.Ct. 947, 84 L.Ed. 1249; see Robertson & Kirkham, Jurisdiction of the Supreme Court of the United States, 360 (1951 ed.) and authorities there cited. A court of appeals would not then have appellate jurisdiction under 28 U.S.C. §§ 1291, 1292. Nor would it be proper for a court of appeals itself to enter a writ of mandamus since the courts of appeal have no appellate jurisdiction over cases decided by three-judge district courts and could not, therefore, satisfy the requirement of 28 U.S.C. § 1651 that such writs may issue only “in aid of their * * * jurisdictions.” See Roche v. Evaporated Milk Ass’n, 1943, 319 U.S. 21, 25, 63 S.Ct. 938, 87 L.Ed. 1185.
In this case, however, the district court has proceeded to enter orders which meet the standards for appellate review prescribed by 28 U.S.C. §§ 1291, 1292. The appellees urge that nonetheless this court should dismiss the appeals for lack of jurisdiction and leave the appellant with its remedy of mandamus in the Supreme Court. If, in fact, the district judges exceeded their jurisdiction in entering the orders before us on appeal, we would surely be barred from considering the merits underlying their decisions. 28 U.S.C. § 1253 directs that 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” an appeal may be taken from a denial of an interlocutory or permanent injunction directly to the Supreme Court. But I think we have the jurisdiction and the statutory obligation to hear this appeal and first decide whether the orders did exceed the jurisdiction of district judges sitting alone in the district court, and whether the suit was of the kind which should have been presented to a district court of three judges. Diggs v. Pennsylvania Public Utilities Commission, 3 Cir., 1950, 180 F.2d 623, 629.
If we hold that Judge Bicks was required to impanel a three-judge court, we must vacate his order and that of Judge Dimoek for lack of jurisdiction, and we can go no further. Two Guys From Harrison-Allentown, Inc. v. McGinley, 3 *432Cir., 1959, 266 F.2d 427, 433; Board of Supervisors of Louisiana State University, etc. v. Tureaud, 5 Cir., 1953, 207 F.2d 807. But see Chicago, Duluth & Georgian Bay Transit Co. v. Nims, 6 Cir., 1958, 252 F.2d 317; Waddell v. Chicago Land Clearance Commission, 7 Cir., 1953, 206 F.2d 748. If, on the other hand, we hold that the issues before the district judges were not for a three-judge court either because the challenge to the state statute was not of the type comprehended by 28 U.S.C. § 2281 or because the question of “equitable abstention” is analogous to the threshold jurisdictional determination of a substantial federal question, which is to be decided by the single district judge and reviewed by the court of appeals, Bell v. Waterfront Commission, 2 Cir., 1960, 279 F.2d 853, we should proceed to the merits as we would in any other case in which the jurisdiction of a district judge is attacked and is upheld. Cf. Query v. United States, 4 Cir., 1941, 121 F.2d 631, vacated on other grounds, 1942, 316 U.S. 486, 62 S.Ct. 1122, 86 L.Ed. 1616; Capital Service, Inc. v. United States District Court, 9 Cir., 1952, 198 F.2d 18.
Jurisdictional questions are surely not beyond the scope of this court’s authority. We are often called upon to decide whether diversity jurisdiction was properly exercised by a district court, although in deciding that it was not we must vacate the decision below and oust ourselves of jurisdiction to go any further. Underlying the majority’s opinion is the assumption that matters which should be considered only by a three-judge court and by the Supreme Court should not be presented to this court — that supervision over three-judge panels should rest with the Supreme Court only. But even when the issue is whether a case was one as to which original jurisdiction lay exclusively with the Supreme Court, courts of appeal have passed on the jurisdictional issue after a final order was entered and have not required the parties to seek relief by way of mandamus in the Supreme Court. See United States v. State of Washington, 9 Cir., 1956, 233 F.2d 811; Farnsworth v. Sanford, 5 Cir., 1940, 115 F.2d 375, certiorari denied, 1941, 313 U.S. 586, 61 S.Ct. 1109, 85 L.Ed. 1541.
If we were now to decide the jurisdictional question the Supreme Court could, of course, review our determination on certiorari or even by a writ of mandamus. The majority’s view, however, imposes on the federal courts a procedure of piecemeal review whereby a court of appeals is always forced to stay its hand whenever an appellant or appellee argues to it that the decision below should have been made by a three-judge court. No matter how worthless such a claim may be, we would not be able to dispose of it on an appeal from a final order but would have to await a decision on a petition for mandamus in the Supreme Court. Only after the Supreme Court decided the jurisdictional question might we be permitted to consider the merits, and the merits would not be ripe for Supreme Court review until we had passed upon them on remand. I cannot believe that the authority of the Supreme Court over three-judge tribunals was intended to extend so far as to preclude us from deciding the jurisdictional issue when a district judge enters an order that is otherwise appealable under 28 U.S.C. §§ 1291, 1292, and thereby to impose on the parties a procedure calling for separate appellate consideration of the jurisdictional and substantive questions.
It is true that the dictum in the Stratton case, supra, appears to indicate that even after an appealable order is entered by the district court, the only means of vacating it is by mandamus in the Supreme Court. But it seems to me that the Supreme Court in Stratton was concerned with the effects of appellate review of the merits of an unauthorized order entered by a single district judge and did not proscribe ordinary review of matters going to the jurisdiction of the single district judge if his order is otherwise appealable. See Hart & Wechsler, The Federal Courts and the Federal System 853 (1953).
For these reasons T would deny the motion to dismiss.
. See, in addition to the Glen Oaks Utilities case cited in the majority opinion, N. A. A. C. P. v. Bennett, 1959, 360 U.S. 471, 79 S.Ct. 1192, 3 L.Ed.2d 1375, where, on appeal from an order of a three-judge court retaining jurisdiction, the Supreme Court considered the merits without discussing the issue of appeal-ability.
. “If a single judge, thus acting without jurisdiction, undertakes to enter an order granting an interlocutory injunction or a final decree, either dismissing the bill on the merits or granting a permanent injunction, no appeal lies from such an order or decree to this Court, as the statute plainly contemplates such a direct appeal only in the case of an order or decree entered by a court composed of three judges in accordance with the statutory requirement. Nor does an appeal lie to the Circuit Court of Appeals from an order or decree thus entered by a District Judge without authority, for to sustain a review upon such an appeal would defeat the purpose of the statute by substituting a decree by a single judge and an appeal to the Circuit Court of Appeals for a decree by three judges and a direct appeal to this Court.
“Accordingly, where a court of three judges should have been convened, and was not, this Court may issue a writ of mandamus to vacate the order or decree entered by the District Judge and directing him, or such other judge as may entertain the proceeding, to call to his aid two other judges for the hearing and determination of the application for an interlocutory injunction.” 282 U.S. at pages 15-16, 51 S.Ct. at page 10.