(dissenting):
The order in this case requires a result that the defendant cannot possibly achieve and still comply with the Florida law which limits his authority. I would vacate the order and remand the case to the district judge to decide precisely what the defendant in this suit can do to alleviate the constitutional violations found to exist and then to fashion an order with which this defendant can comply without violating any Florida laws. If a court order is to be entered which requires action of this defendant which will violate Florida laws, on the ground that to comply with the law is unconstitutional, then a three-judge court should be convened. If a court order is to require action of other state officers and agencies, they should be made parties.
The district court and the majority opinion have overlooked a very basic reality about this case. The State of Florida is not a defendant. The Parole and Probation Commission is not a defendant. The Governor is not a defendant. Nor are any of the “other agencies of the State of Florida” parties to this suit, agencies which the majority opinion says “are also in a position of ameliorating the overcrowding situation which is the sole basis for the preliminary injunction appealed from.” True as it may be that “the way is wide open for the State of Florida to meet the requirements of the injunctive order,” as the majority states, the State of Florida is not enjoined. There is nothing in this record to indicate that the defendant Wainwright, who is the only party who can be held in contempt for noncompliance, has any way to legally meet the broad scope of the order. He is bound by Florida law, with the compelling force of criminal sanction, to accept all prisoners brought to him. See Fla.Stat. §§ 839.21; 944.16; 945.09. Moreover, he is severely restricted on what he can do to discharge the prisoners. See Fla.Stat. § 944.29. Although he has ability to provide some additional prisoner capacity, that ability is limited. This suit was brought as a prison health case. Certain relief may be appropriate against Wainwright. But when the action turned into a prison overcrowding case, it stretched beyond the legal limitations of this defendant’s authority.
Here the only practical way that defendant Wainwright can comply with the ordered relief is to forego his statutory responsibility of accepting and keeping lawfully committed prisoners. Those statutes, if complied with by defendant, absent any action by persons not parties to this lawsuit, will work to deprive plaintiffs of constitutional rights. The statute becomes unconstitutional in operation. A statute does not have to be directly challenged as unconstitutional on its face where the impact of a court order achieves the precise result requiring a three-judge court. See Query v. United States, 316 U.S. 486, 489, 62 S.Ct. 1122, 86 L.Ed. 1616 (1942); C. Wright, Law of Federal Courts § 50, at 190 (2nd ed. 1970). As Judge Gewin stated in commenting on Baker v. Estelle, 491 F.2d 417 (5th Cir. 1973):
Thus, the import of our disposition of the claims presented by Baker is that the complaint’s failure to explicitly challenge the constitutionality of a specific regulation will not vitiate the need to convene a three judge court, where the relief sought, if granted, would inexorably condemn those promulgated rules and regulations not specifically challenged. Adoption of the contrary view would have been tantamount to sanctioning the resort to semantical and legal artifices, a practice which should be steadfastly abjured.
Newman v. Alabama, 503 F.2d 1320, 1326-1327 (5th Cir. 1974). The statewide effect required for three-judge court jurisdiction is present because the entire Florida prison system is affected by the Court’s order. See, e. g., Phillips v. United States, 312 U.S. 246, 251, 61 S.Ct. 480, 85 L.Ed. 800 (1941); Sands v. Wainwright, 491 F.2d 417, 421-422 (5th Cir. 1973), cert. denied, sub nom. Guajardo v. Estelle, 416 U.S. 992, 94 S.Ct. 2403, 40 L.Ed.2d 771 (1974).
*1254The result reached under this single judge court order as it is now framed creates the kind of event § 2281 was designed to protect against. “[T]he central concern of Congress in 1910 [when enacting the three judge court statute] was to prevent one federal judge from granting an interlocutory injunction against state legislation on grounds of federal unconstitutionality.” Florida Lime and Avocado Growers, Inc. v. Jacobsen, 362 U.S. 73, 80, 80 S.Ct. 568, 573, 4 L.Ed.2d 568 (1960). See generally, D. Currie, The Three-Judge District Court in Constitutional Litigation, 32 U.Chi.L. Rev. 1, 3-12 (1964). The order in this case presents that type of situation for here the impact of the order goes to Wainwright’s inability to operate and maintain the Florida prison system constitutionally under present state legislation. The concession of unconstitutionality upon which the majority partially relies to avoid a three-judge court is not supported by the record. First, a concession by Wain wright could not be a concession by the State. Second, and more important, a concession that the prisons are overcrowded does not concede overcrowding to the point of an Eighth Amendment violation.
This is simply a different situation than in Newman v. Alabama, supra, upon which the majority relies, where the action was brought against the State of Alabama and various individuals, including the State Attorney General, the Warden at Mt. Meigs, the Alabama Board of Corrections, its Commissioner, Chairman and four members of the Board, as well as the hospital administrator and staff of the Medical and Diagnostic Center at Mt. Meigs. There the attack went to the deprivation of adequate medical care and the named defendants were precisely the people who could alleviate the problem. Likewise Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974), also relied upon by the majority, involved a different situation than in this case. In Gates the suit was against the Superintendent of the Mississippi Penitentia'ry, the members of the Mississippi Penitentiary Board and the Governor of the State, all parties who might properly effectuate the ordered relief.
There is little question that the record reflects conditions in Florida prisons which cry out for correction. But courts of law should attend carefully to the order of equitable relief only against those who are capable of complying with the order to correct the unconstitutional conditions. See, e. g., 27 Am.Jur.2d Equity §§ 105-109, at 626-633 (1966).
Wain wright should not be required to suffer the consequences of an order with which he has no legal capacity to comply, absent an injunction by a three-judge court against the operation of the statutes which would make his compliance illegal. The case should be remanded to permit the district court to grant only such relief against this defendant as he can provide without nullification of state statutes, to convene a three-judge court if that is deemed appropriate under the circumstances, and to permit, if proper, the joinder of other defendants whose activity is to be modified if the result sought by the district court order is to be achieved.