(dissenting and concurring):
This case presents the jurisdictional issue of whether or not a single judge district court may grant summary judgment on the merits in an action seeking to enjoin the enforcement of a statewide administrative order pursuant to 28 U.S.C. § 2281. Following the teaching of the Supreme Court, I must hold that such decision rests exclusively in a statutory three-judge district court constituted pursuant to 28 U.S.C. § 2284, and I therefore dissent.
I concur, however, in the majority opinion which affirms the district court in that part of the action which seeks to enjoin the enforcement of the anti-counseling section of the Selective Service Act.
On May 9, 1968, appellants filed their complaint in the district court alleging in substance:
1. They are members of an unincorporated association at the University of California at Berkeley known as Campus Draft Opposition, a recognized and registered campus organization composed of a large number of students and faculty.
2. Prior thereto, the appellee Regents had adopted the following resolution:
A.
“University facilities shall not be used for the purpose of organizing or carrying out unlawful activity.
B.
“The advocacy and content of speech at University facilities cannot and shall not be restricted beyond the purview of the First and Fourteenth Amendments to the Constitution.”
3. The purpose of the Campus Draft Opposition is to provide support for young men who, for reasons of conscience, believe that the actions of the United States in Vietnam are unjust and immoral and who therefore cannot participate in the Armed Forces.
4. On February 26, 1968, appellants applied for use of the Greek Theatre on the Berkeley Campus for the purpose of presenting a “Vietnam Commencement” on May 17, 1968. The purpose of the program was to honor those young men who had taken a position favored by the association concerning services in the Armed Forces.
5. On March 4, 1968, the University Administration approved the use of the facility-subject to the conditions that (a) its use comply with established standard requirements, (b) the association make it clear that the event was not sponsored *501or approved by the University, and (c) the planned use was not illegal.
6. In order to obtain an opinion in regard to the third condition (no illegal use), the matter was referred to the General Counsel of the University. He concluded that the “Vietnam Commencement” event would result in a violation of 50 U.S.C. App. § 462(a), the anti-counseling section of the Selective Service Act, and therefore would not be consistent with Part A of the Regents’ Resolution.
7. Appellants resubmitted their application, stating that there was no intent to act outside the law, and set forth that it would stress the fact that the program was not sponsored by the University, the ceremony would deliberately avoid mimicking any official ceremony, there would be no academic procession or presenting of “honorary degrees,” there would be no fund raising, and all janitorial and police services would be in accordance with university regulations.
8. The featured speaker was to be Dr. Robert M. Hutchins, former President of the University of Chicago and now Director of the Center For the Study of Democratic Institutions.
9. The General Counsel was again asked for his opinion. The request was accompanied by a written opinion of five professors of law at the Law School, which concluded that appellants’ planned activities in the Greek Theatre would not be in violation of the law.
10. Again, the General Counsel determined that in his opinion the “very nature of the proposed event, with these central aspects of honoring and pledging assistance [to draft eligible men who have signed a pledge of refusal to serve in the Armed Forces], is such as to counsel, aid or abet draft eligible men to refuse induction.” The Administration, therefore, denied the request for the assembly.
11. The administrative denial was appealed to the Regents. On April 19, 1968, the Regents adopted the following order, fourteen in favor, three opposed and two not voting:
“After giving full consideration to the appeal and material submitted in support of it (Viet Nam Commencement) and the opinion of the general counsel that violations of law will occur in the course of the event if held as proposed, and it appearing that because of the history and format of the proposed ‘commencement’ it would be widely regarded as being a University ceremony if held on the campus, it is the determination of the Regents that permission should not be granted for the holding of the proposed ‘Viet Nam Commencement.’
“For these reasons, The Regents hereby deny the appeal of the Campus Draft Opposition.”
12. The Greek Theatre is a large outdoor amphitheater seating 10,000 persons. The facility is not reserved exclusively for university-sponsored events but is frequently used for political speeches and rallies, and had recently been used for a i-ally supporting “Black Power.”
13. The facilities of the University of. California are frequently and regularly used by registered campus organizations for meetings expressing political points of view on the war in Vietnam as well as numerous other political subjects.' The Campus Draft Opposition has itself used campus facilities on numerous occasions for promulgation of its program after complying with all applicable administrative requirements for such activities on the Berkeley campus.
14. A ceremony honoring persons who state they will decline to serve in the Armed Forces does not violate 50 U.S.C.App. § 462(a) nor any other law.
15. The denial of the use of the Greek Theatre for the reasons given abridges the appellants’ federal rights to freedom of speech, association and assembly, as well as their rights under the equal protection clause of the Fourteenth Amendment.
*502Appellants then prayed for an injunction to restrain appellee from prohibiting the meeting of May 17, 1968, an order declaring that Part A of the Regents’ Resolution is an unconstitutional prior restraint of free expression and assembly, and for monetary damages.
In support of and in opposition to a motion for a preliminary injunction, both sides filed affidavits and documentary evidence, and on May 16, 1968, a single judge district court denied appellants’ request for a preliminary injunction. I set aside a detailed discussion whether such a matter must be determined by a statutory three-judge court. A single judge does not have jurisdiction to deny after a hearing a request for an interlocutory or preliminary injunction to restrain the enforcement of a state statute on the ground of unconstitutionality. Ex parte Metropolitan Water Co., 220 U.S. 539, 31 S.Ct. 600, 55 L.Ed. 575 (1911). Where a party seeks an injunction in a case which must be heard by a statutory three-judge district court, and the orderly course of pleading would include the filing of an application for the convening of such a court, the single district judge to whom the case is assigned has the duty to initiate the necessary procedure for setting up such a court, even though a request is not made therefor. Borden Co. v. Liddy, 309 F.2d 871 (8th Cir. 1962), cert. denied, 372 U.S. 953, 83 S.Ct. 951, 9 L.Ed.2d 977 (1963), and Bell v. Waterfront Comm’n of New York Harbor, 279 F.2d 853 (2d Cir. 1960).
On July 19, 1968, plaintiffs, pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, filed an amendment to their complaint, contending:
(1) They plan to continue the activities of the Campus Draft Opposition during the academic year commencing in September of 1968 and as long as the compulsory draft under the Selective Service System continues to affect students, employees and faculty at the University of California.
(2) The defendants would continue to rely on 50 U.S.C. App. § 462(a) to deny plaintiffs their full rights of freedom of, expression and assembly.
(3) Part A of the Regents’ Resolution is an unconstitutional prior restraint of freedom of speech and assembly on its face and as applied.
Appellants also requested that a three-judge district court be convened pursuant to 28 U.S.C. § 2284 to enjoin the enforcement of the federal statute and Part A of the Regents’ Resolution.
Appellee, thereupon, filed a motion to dismiss the action for failure to state a claim upon which relief can be granted, and to deny the request to convene a three-judge district court.
On September 25, 1968, the district court, relying on affidavits filed in the matter, dismissed the action on its merits and denied the request to convene a three-judge court. As stated in the majority opinion of this court, the dismissal was in effect a summary judgment under Rule 56 of the Federal Rules of Civil Procedure. The district court found as facts: (a) the denial of permission to use the Greek Theatre was based on the alternative and independent ground that the planned program would be widely regarded as being a University ceremony if held on campus; (b) there was no present justiciable controversy involving the federal statute or the Regents’ Resolution; (c) there was no substantial federal question presented in regard to either the statute or the resolution; (d) the Regents’ Resolution was not a statewide statute of general application reviewable by a three-judge court under 28 U.S.C. § 2281; (e) the defendants were not responsible for enforcing the federal statute and thus the case was not proper for a three-judge court pursuant to 28 U.S.C. § 2282; (f) the complaint failed to state a claim upon which relief could be granted; (g) the denial of permission was a reasonable and lawful exercise of defendant’s au*503thority in governing the University of California; and (h) any incidental restrictions upon the exercise of First Amendment freedoms were fully justified by the valid and compelling interests of defendant giving rise to the denial of permission.
The single district court judge did not have jurisdiction to dismiss the complaint on its merits. Idlewild Liquor Corp. v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962), states, “When an application for a statutory three-judge court is addressed to a district court, the court’s inquiry is appropriately limited to determining whether the constitutional question raised is substantial, whether the complaint at least formally alleges a basis for equitable relief, and whether the case presented otherwise comes within the requirements of the three-judge statute.” 370 U.S., supra at 715, 82 S.Ct. at 1296.
The limited power of the single judge is specifically set forth in Stratton v. St. Louis S. W. Ry., 282 U.S. 10, at 15, 51 S.Ct. 8, 10, 75 L.Ed. 135 (1930):
“If an application for an interlocutory injunction is made and pressed to restrain the enforcement of a state statute, or of an administrative order made pursuant to a state statute, upon the ground that such enforcement would be in violation of the Federal Constitution, a single judge has no jurisdiction to entertain a motion to dismiss the bill on the merits. He is as much without power to dismiss the bill on the merits, as he would be to grant either an interlocutory or a permanent injunction. His authority is strictly limited to granting, upon proper cause being shown, a temporary restraining order to be effective only pending the determination of the application for an interlocutory injunction. Upon making such an order, it is his duty immediately to call two other judges, as the statute directs, to assist him in hearing and determining that application. Ex parte Northern Pacific Railway Company, 280 U.S. 142, 144 [50 S.Ct. 70, 74 L.Ed. 233].” [Emphasis added.]
The University of California consists of nine state university campuses throughout California. It is administered pursuant to Article IX, Section 9, of the Constitution of the State of California by the appellee Regents of the University of California “with full powers of organization and government, subject only to such legislative control as may be necessary to insure compliance with the terms of the endowments of the university and the security of its funds.”
A description of the functions and powers of the Regents is given in Ishimatsu v. Regents of University of California, 266 Cal.App.2d 854, 863-874, 72 Cal.Rptr. 756, 762-763 (1968), as follows:
“The authority arid powers granted to the University are extensive. * * * The regents have been variously described as ‘an institution of the state,’ ‘a public corporation,’ and ‘a governmental agency,’ (Estate of Royer, supra, 123 Cal. 614, 619, 620, 56 P. 461); a ‘public trust,’ and ‘a governmental institution,’ (City Street Imp. Co. v. Regents etc., 153 Cal. 776, 777, 779, 96 P. 801 [18 L.R.A.,N.S., 451]); ‘a constitutional department or function of the state government,’ (Williams v. Wheeler, 23 Cal.App. 619, 622, 138 P. 937); ‘a governmental function.’ (Davie v. Board of Regents, etc., 66 Cal.App. 693, 696, 227 P. 243); ‘a state institution’ (Estate of Purington, 199 Cal. 661, 666, 250 P. 657); and ‘a branch of the state itself,’ (Pennington v. Bonelli, 15 Cal.App.2d 316, 321, 59 P.2d 448). (See also 30 Ops. Atty.Gen. 162, 166; Newmarker v. Regents of Univ. of Calif., 160 Cal.App.2d 640, 324 P.2d 558.)
“The Attorney General, in commenting on the autonomy granted the regents, stated: ‘ * * * It is a constitutional corporation or department and constitutes a branch of the state government equal and coordinate with the legislature, the judiciary and *504the executive. [Citations.] * * * The Regents, not the legislature, have the general rule-making or policy-making power in regard to the University. * * * It is clear, however, that the power of the Regents to operate, control and administer the university is virtually exclusive.’ (30 Ops.Atty.Gen., 162, 166.)” [Footnotes omitted.]
Appellee is therefore a statewide administrative agency, and its resolutions, policies and orders are within the operative effect of 28 U.S.C. § 2281. Gilmore v. Lynch, 400 F.2d 228 (9th Cir. 1968); Marshall v. Sawyer, 301 F.2d 639 (9th Cir. 1962); Hatfield v. Bailleaux, 290 F.2d 632 (9th Cir. 1961).
While a single judge may not dismiss on its merits a case under § 2281, he may dismiss if the complaint on its face does not present a substantial federal question. Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946). The Supreme Court, in Ex Parte Poresky, 290 U.S. 30, 32, 54 S.Ct. 3, 4, 78 L.Ed. 152 (1933), set forth the rule that: “The question may be plainly unsubstantial, either because it is ‘obviously without merit’ or because ‘its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the question sought to be raised can be the subject of controversy.’ ” This criterion was followed in California Water Service Co. v. City of Redding, 304 U.S. 252, 58 S.Ct. 865, 82 L.Ed. 1323 (1938).
The facts alleged in the original and amended complaints present a question that is not “obviously without merit,” and there are “no decisions of the Supreme Court which have foreclosed the subject.”
The complaint alleges that the challenged Regents’ Resolution was and is used by the defendants as a prior restraint to prohibit a peaceful public assembly and to restrain plaintiffs’ First Amendment rights. This is clear from the fact that the use of the Greek Theatre was approved by the Administration subject to the opinion of the General Counsel. The General Counsel ruled that the assembly would violate the resolution, and it was on that basis that the use of the Greek Theatre was denied.
The district court found that the use was denied on the alternate and independent ground that “because of the history and format of the proposed ‘Commencement,’ it would be widely regarded as being a University ceremony if held on the campus.” That finding is impermissible under Idlewild Liquor Corp. and Stratton, supra. Appellants contend that the stated reason is a sham. It is a question of fact and must await a trial on the merits before a three-judge court.
Furthermore, the alleged “alternate and independent ground” for denial is seriously challenged by appellants as an unconstitutional prior restraint of speech and peaceful assembly because of its vagueness and overbreadth. Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960), holds that, “* * * even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.” 364 U.S., supra at 488, 81 S.Ct. at 252.
The use of the Regents’ Resolution to act as a prior restraint upon speech and peaceful assembly is condemned in Carroll v. Commissioners of Princess Anne, 393 U.S. 175, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968). Sanctions against appellants may take the form of criminal prosecutions for violations of valid laws, but may not take the form of prior censorship, absent a showing in an adversary proceeding of a clear and present danger of riot and disorder. The appellants alleged that the assembly would be held with proper police supervision, and that allegation was uncontested before the single district court judge.
The Regents’ Resolution, as applied to the facts of this case, is further subject to the serious constitutional infirmities *505set forth by the Supreme Court in Shuttlesworth v. Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969), and Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969). In Brandenburg, the court stated “ * * * the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” 395 U.S. at 447, 89 S.Ct. at 1829. As condemned in Shuttlesworth, the Regents’ Resolution “ * * * was administered so as, in the words of Chief Justice Hughes, ‘to deny or unwarrantedly abridge the right of assembly and the opportunities for the communication of thought * * * immemorially associated with resort to public places.’ ” 394 U.S. at 159, 89 S.Ct. at 943.
The majority contends that the pleadings and affidavits are insufficient to state a claim for injunctive relief and, therefore, the requirement that the plaintiffs must at least formally allege the basis for equitable relief has not been met. In making that determination based in part upon the affidavits, the majority has decided the matter on its merits, a decision which the courts of appeals are without jurisdiction to render under 28 U.S.C. § 2281. That jurisdiction is reserved for three-judge district courts and the Supreme Court under 28 U.S.C. § 1253. “In the Stratton case it was held that a court of appeals was precluded from reviewing on the merits a case which should have originally been determined by a court of three judges.” Idlewild Liquor Corp., supra, at 715-716, 82 S.Ct. at 1296.
The ease is not moot. When there is a prior restraint of First Amendment rights and the censor persists in its policies, the issues continue. Although the date of the assembly which was the focal point of the litigation has long since passed, the appellants still live, the Vietnam war still continues, the Regents’ Resolution is still in effect, there is still a compulsory draft under the Selective Service System, and appellants assert that they will continue in their activities. “The underlying question persists and is agitated by the continuing activities and program of petitioners: whether, by what processes, and to what extent the authorities * * * may restrict petitioners in their rallies and public meetings.” Carroll v. Princess Anne, supra, at 179, 89 S.Ct. at 350.
The majority holds that on the record as a whole there is no threat of irreparable harm and no chilling effect on First Amendment rights. That determination must be for some court other than this one. Furthermore, what remedy lies to prohibit the censor except by injunction? The Supreme Court has uniformly held that an injunction is the effective remedy. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943); Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939). And, “[i]t makes no difference that the instant case was not a criminal prosecution and not based on a refusal to comply with a licensing requirement.” N.A.A.C.P. v. Button, 371 U.S. 415, 432, 83 S.Ct. 328, 338, 9 L.Ed.2d 405 (1963).
The majority asserts that the complaint was properly dismissed because although appellants allege that they will continue in their efforts in regard to the war in Vietnam and the Selective Service System, they fail to allege that any event similar to the Vietnam Commencement is planned for the future. As stated in Conley v. Gibson, 355 U.S. 41, 47-48, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957):
“The decisive answer to this is that the Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is ‘a short and plain statement of the claim’ that will give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests. The illustrative *506forms appended to the Rules plainly demonstrate this. Such simplified ‘notice pleading’ is made possible by the liberal opportunity for discovery and the other pretrial procedures established by the Rules to disclose more precisely the basis of both claim and defense and to define more narrowly the disputed facts and issues. Following the simple guide of Rule 8(f) that ‘all pleadings shall be so construed as to do substantial justice,’ we have no doubt that petitioners’ complaint adequately set forth a claim and gave the respondents fair notice of its basis. The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits. Cf. Maty v. Grasselli Chemical Co., 303 U.S. 197 [58 S.Ct. 507, 82 L.Ed. 745].”
Furthermore, in considering whether injunctive relief should be granted, a federal district court should consider the matter as of the time its jurisdiction is invoked rather than some hypothetical future date. Dombrowski v. Pfister, 380 U.S. 479, 490, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). The complaint was filed and jurisdiction invoked prior to the date of the planned assembly.
For the reasons set forth therein, I concur in the decision of the majority which determines that part of the complaint challenging the constitutionality of 50 U.S.C. App. § 462(a). In the present posture of the pleadings, the district court did not have jurisdiction. The Regents are the only defendants, and it is clear that they have no authority to enforce a federal penal statute. When a plaintiff has failed to sue an indispensable party, a single judge may dismiss the complaint without attempting to convene a three-judge court. Osage Tribe of Indians v. Ickes, 45 F.Supp. 179 (D.D.C.1942), aff’d, 133 F.2d 47 (D.C.Cir. 1943), cert. denied, 319 U.S. 750, 63 S.Ct. 1158, 87 L.Ed. 1704 (1943).
I would reverse with directions “to the District Court for expeditious action consistent with the views here expressed.” Idlewild Liquor Corp., supra, at 716, 82 S.Ct. at 1296.