dissenting.
The statute providing for three-judge Federal District Courts, with direct appeal to this Court, in cases seeking interlocutory injunctions against the operation of state statutes on constitutional grounds, was enacted in 1910. 36 Stat. 557. It was amended in 1925 to apply to applications for final as well as interlocutory injunctive relief. 43 Stat. 938. Since that time this Court has taken jurisdiction by way of direct appeal in several cases like the present one, where a state statute was sought to be enjoined both on federal constitutional and non-constitutional grounds. See Herkness v. Irion, 278 U. S. 92; Sterling v. Constantin, 287 U. S. 378, 393 (limited in Phil*87lips v. United States, 312 U. S. 246); Spielman Motor Sales Co. v. Dodge, 295 U. S. 89; Parker v. Brown, 317 U. S. 341.1 In none of these cases, however, was our jurisdiction challenged by the litigants because non-constitutional as well as constitutional relief was sought, nor did the Court notice the existence of a question as to our jurisdiction on that score. We should therefore feel free to apply Mr. Chief Justice Marshall’s approach in a similar situation to unconsidered assumptions of jurisdiction: “No question was made, in that case, as to the jurisdiction. It passed sub silentio, and the court does not consider *88itself as bound by that case.” United States v. More, 3 Cranch 159, 172. See also Mr. Chief Justice Marshall in Durousseau v. United States, 6 Cranch 307, and Mr. Justice Brandeis dissenting in King Mfg. Co. v. Augusta, 277 U. S. 100, 135, n. 21: “It is well settled that the exercise of jurisdiction under such circumstances [where counsel did not question our jurisdiction] is not to be deemed a precedent when the question is finally brought before us for determination.” 2 I therefore approach the question of our jurisdiction in the present case as open, calling for a thorough canvass of the relevant jurisdictional factors. The Court does not undertake such a canvass, but relies instead upon the cases cited and upon what it deems explicit statutory language and plainly manifested congressional intent. Consideration of what are to me the relevant factors leads me to dissent from the Court’s conclusion that we have direct appellate jurisdiction in this case.
Appellants’ complaint seeks injunction against the operation of § 792 of the California Agricultural Code on the grounds that it is in conflict with the Federal Agricultural Marketing Agreement Act of 1937, 7 U. S. C. § 601 et seq., and the Commerce and Equal Protection Clauses of the United States Constitution. The complaint requested the convening of a three-judge District Court to adjudicate these claims. A three-judge court was convened and, after hearing, it entered a judgment dismissing the action on the ground that no justiciable controversy existed. 169 F. Supp. 774. A direct appeal was taken to this Court pursuant to 28 U. S. C. § 1253. The Court now holds that three judges were required to adjudicate appel*89lants’ claims below and that we therefore have jurisdiction to decide this appeal on its merits.
The statute governing our direct appellate jurisdiction from decisions of three-judge District Courts is 28 U. S. C. § 1253:
“Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction 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.”
Whether the present case was a “proceeding required . . . to be heard and determined by a district court of three judges,” and therefore within our direct appellate jurisdiction, depends upon the meaning to be given to 28 U. S. C. §2281:
“An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes, shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title.”
I start with the proposition, as I understand the Court to do, that whether a case is one directly appealable here under 28 U. S. C. § 1253 depends upon the complaint, and not upon the result in the District Court. If three judges are required to hear the claims which are made, then we have direct appellate jurisdiction to review their decision, even though it be on non-constitutional grounds. If three *90judges are not required in view of the complaint, and the case is determinable by a single judge, we have no jurisdiction by way of direct appeal under § 1253, even though the decision be a constitutional one.
In this case the complaint did not attack the California statute solely on the ground of its conflict with the Commerce and Equal Protection Clauses of the Constitution. It also attacked it because of its asserted conflict with the Federal Agricultural Marketing Agreement Act of 1937, a claim which in the first instance requires construction of both the Federal Act and the California statute, and which for purposes relevant to our issue is not a constitutional claim. Ex parte Buder, 271 U. S. 461. The question thus presented is whether three judges are to be required, with a consequent direct appeal to this Court, merely because a constitutional claim is made, although it is joined with claims that may dispose of the case on essentially statutory and perchance local statutory grounds. The Court decides that three judges are required in such a case. I would hold that there are required to be three judges and a direct appeal to this Court only when the exclusive ground of attack upon a state statute is direct and immediate collision with the Constitution, thus seeking a constitutional decision in order that relief be granted.
Neither my position nor the Court’s is entirely satisfactory. My view would leave it open for a single district judge to enjoin a state statute on the ground of its unconstitutionality if the complaint also contains non-constitutional grounds for relief. As the Court points out, such a result would conflict with the superficial literal sense of 28 U. S. C. § 2281 that an “injunction restraining the enforcement ... of any State statute . . . shall not be granted by any district court . . . upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of *91three judges . . . The effect of the Court’s decision, on the other hand, is to require the convening of a three-judge court, with the corollary right of direct appeal of its decision to this Court, in cases where, as a consequence of the presence of a substantial non-constitutional ground for relief, the constitutionality of a state statute will play no part in the decision, either in the District Court or in this Court. There can be expected to be many such cases. For an example of one of them see Herkness v. Irion, 278 U. S. 92. It can fairly be stated, and with this I understand the Court fully to agree, that in devising the three-judge District Court scheme relating to state legislation Congress was concernéd with providing appropriate safeguards against the invalidation of state legislation on constitutional grounds. I am therefore put to a choice between holding this three-judge procedure applicable to a large class of non-constitutional cases, where the unusual demands which that procedure makes upon the federal judicial system were never thought justifiable by Congress, and departing from the strictly literal sense of § 2281 in order to restrict the scope of this three-judge procedure with a view to preventing its operation outside of its proper constitutional sphere. I am led to choose the latter by considerations which are to me controlling, namely, considerations bearing on the efficient operation of the federal judicial system. For I do not find myself compelled to disregard these considerations either by ironclad statutory language or by any unambiguous evidence of congressional purpose to the contrary.
What jurisdictional result in a case like this is most likely to comport best with the operation of the federal judicial system is to be determined with regard to two general and conflicting considerations, both of which are directly relevant to a construction of the provisions respecting three-judge District Courts in the context of the present situation. On the one hand is the policy *92which gave rise to the creation of the three-judge requirement in these cases: protection against the improvident invalidation of state regulatory legislation was sought to be achieved by resting the fate of such legislation in the first instance in the hands of three judges, one of whom must be a circuit judge (or, originally, a Justice of this Court), rather than in a single district judge. See Pogue, State Determination of State Law, 41 Harv. L. Rev. 623; Hutcheson, A Case for Three Judges, 47 Harv. L. Rev. 795. And direct appeal to this Court was provided, instead of the usual route from District Court to Court of Appeals, not only to avoid the incongruity of three judges reviewing three judges, but also to hasten ultimate determination of the validity of the legislation and to avoid the delay and waste of time during which the operation of legislation eventually held to be valid might be restrained on constitutional grounds by injunction.
Were only these considerations claiming judgment in construing inert language it would plainly follow, as the Court has concluded, that three judges are required to hear the complaint in this case, for constitutional claims are made and it is not precluded that injunctive relief may be granted on an obvious conflict with specific constitutional provisions. But so to rule here is in my view to fail to give due regard to countervailing considerations of far-reaching consequences to the federal judicial system, affecting the functioning of district and circuit courts, as well as of this Court. Specifically, the convening of a three-judge trial court makes for dislocation of the normal structure and functioning of the lower federal courts, particularly in the vast non-metropolitan regions ; and direct review of District Court judgments by this Court not only expands this Court’s obligatory jurisdiction but contradicts the dominant principle of having this Court review decisions only after they have gone through *93two judicial sieves, or, in the case of federal regulatory legislation, through the administrative tribunal and a Court of Appeals. Also, where issues of local law have to be adjudicated before reaching questions under the United States Constitution, the desirability of having the appropriate Court of Appeals adjudicate such local issues becomes operative.
I deem regard for these demands which the three-judge requirement makes upon the federal judiciary to be the jurisdictional consideration of principal importance in a case such as this where a claim is seriously urged which necessarily involves, certainly in the first instance, construction of local or federal statutes, thus making potentially available a non-constitutional ground on which the case may be disposed of. It is more important that the ordinary operation of our judicial system not be needlessly disrupted by such a case than it is to insure that every case which may turn out to be constitutional be heard by three judges. I am led therefore to construe strictly the statutes providing the three-judge procedure relevant to this case so as to permit their invocation only when the claim is solely constitutional, thus tending to insure that the three-judge procedure will not be extended to non-constitutional cases not within its proper sphere.
My adherence to such confining construction of the necessity both for convening three judges and for this Court to be the first appellate tribunal is consistent with the approach this Court has taken when it has in the past refused to apply this legislation. See Moore v. Fidelity & Deposit Co., 272 U. S. 317; Smith v. Wilson, 273 U. S. 388; Ex parte Collins, 277 U. S. 565; Oklahoma Gas Co. v. Packing Co., 292 U. S. 386; Ex parte Williams, 277 U. S. 267; Ex parte Public National Bank, 278 U. S. 101; Rorick v. Board of Commissioners, 307 U. S. 208; Ex parte Bransford, 310 U. S. 354; Wilentz v. Sovereign Camp, 306 U. S. 573; Phillips v. United States, 312 U. S. *94246; Stainback v. Mo Hock Ke Lok Po, 336 U. S. 368. As we stressed in Phillips v. United States, supra, these cases approach this three-judge statute as a procedural technicality and not as the embodiment of a more or less broadly phrased social policy the enforcement of which requires a generous regard for some underlying social purpose. In Stainback v. Mo Hock Ke Lok Po, supra, we continued to refer to “the long-established rule of strict construction” of this provision for three judges, 336 U. S., at 378, and refused to find it applicable to the Territory of Hawaii. These cases recognize what the Court today in my view does not — that in giving scope to the three-judge requirement due regard should be given to the consequences to the effective functioning of the federal judiciary as a totality, especially to the fact that an expansive construction of the three-judge requirement increases the scope of this Court's direct review and thereby is at cross purposes with the Act of February 13, 1925, 43 Stat. 936, the primary aim of which was to keep our appellate docket within narrow confines. See Moore v. Fidelity & Deposit Co., 272 U. S. 317, 321.
As against the result to which I am led by these important considerations bearing on the proper functioning of the federal judicial system, which I do not understand the Court to dispute, I cannot be persuaded, as apparently the Court is, by arguments stemming from “the explicit language,” the literal sense, of 28 U. S. C. § 2281. Jurisdictional provisions are not to be read in isolation with mutilating literalness, but as harmonizing parts of the comprehensive, reticulated judicial system. For an instance of this Court’s express refusal to give the surface literal meaning to a jurisdictional provision on the ground that to do so would not be consistent with the “sense of .the thing” and would confer upon this Court a jurisdiction beyond what “naturally and properly belongs to it,” *95see American Security & Trust Co. v. Commissioners, 224 U. S. 491, 495. And see Ex parte Collins, 277 U. S. 565, 568, where “[d] espite the generality of the language” of this three-judge provision, it was held that a suit was not one to restrain the operation of a state statute when “the defendants are local officers and the suit involves matters of interest only to the particular municipality or district involved.” Reliance upon literalism in construing a jurisdictional statute constitutes slavish adherence to words, as though they were symbols having single, absolute meanings, and reflects indifference to the significance of jurisdictional legislation as a vehicle for judicial administration.
Nor am I persuaded that I must decide contrary to what are to me the considerations of proper judicial administration by what seems chiefly to have persuaded the Court, namely, that § 2281 “plainly . . . indicate [s] a congressional intention to require an application for an injunction to be heard and determined by a court of three judges in any case in which the injunction may be granted on grounds of federal unconstitutionality.” (Pp. 76-77 of the Court’s opinion.) I can find no such plain congressional intention with regard to the problem presented by the present case. When the three-judge statute was first passed by Congress in 1910 it applied only to applications for interlocutory injunctions. Jurisdiction remained in a single judge to hear an application for a final injunction against the operation of a state statute on grounds of unconstitutionality, and a single judge had the power to grant such an injunction. Thus it is impossible to attribute to Congress at that time an intention that any case involving an injunction of a state statute on constitutional grounds be heard and determined by three judges. The concern was only with improvident interlocutory relief. And in 1925, when the three-judge statute was extended to include applications for final as well as inter*96locutory relief, the only evident concern of Congress was, as the Court agrees, “to end the anomalous situation in which a single judge might reconsider and decide questions already passed upon by three judges on the application for an interlocutory injunction.” Stratton v. St. Louis Southwestern R. Co., 282 U. S. 10, 14. It is, of course, common knowledge that Congress’ central concern in enacting the Jurisdictional Act of 1925 was to restrict the obligatory appellate jurisdiction of this Court. Thus, although the result of the 1910 and 1925 Acts is language which on its face appears to prohibit one judge from ever enjoining a state statute on constitutional grounds, I do not think it fair to say that there was ever a deliberate accompanying purpose in Congress to achieve such a sweeping inflexible result. In the absence of any manifestations of such a purpose, I do not see why we should attribute to Congress, as the Court does, an intention to achieve a result which to me is plainly out of harmony with the best operation of the federal judicial system.3
And if we are to look to our prior decisions for guidance with regard to the proper approach to statutes conferring upon this Court direct appellate jurisdiction over decisions in constitutional cases, I find much more relevant than the decisions relied upon by the Court, which reached the Court’s result without consideration of the jurisdictional problems now presented, our decisions in Ex parte Buder, 271 U. S. 461, and in Lemke v. Farmers Grain Co., 258 U. S. 50 (Lemke I). Buder arose under the *97three-judge statute involved in the present case, and Lemke I arose under § 238 of the old Judicial Code which, no less literally than the statute in the present case, gave this Court direct appellate jurisdiction in cases in which a state law was “claimed to be in contravention of the Constitution of the United States.” In both of these cases the jurisdictional problem was expressly considered, and the jurisdictional legislation was read so as not to require this Court’s direct appellate jurisdiction in cases where non-constitutional claims were made, even though constitutional factors were also implicated and decision might ultimately have turned on constitutional grounds.
Legislating is for Congress. Applying what Congress has enacted requires oftener than not construction. That is a judicial function. This is particularly true of judiciary legislation which is mainly concerned with the distribution of judicial power through deployment of the judicial force and the effective exercise of appellate review. It is also true to state that Congress seldom concerns itself with this Court’s decisions construing judiciary legislation unless some dramatic result arouses its interest. We do not have to go further for an illustration of this generalization than to notice the indifference of Congress, in the sense that no legislative changes have been proposed one way or the other, with regard to the Act involved in this case, or the Criminal Appeals Act of 1907. Because these things are true I am convinced that it would in no wise show a disregard for any legislative purpose in the enactment of the three-judge device, or for any kind of legislative attitude toward the series of cases in which this Court has since then applied that legislation, if now upon full consideration we were to construe this legislation in light of the demands of the federal system as a totality to restrict it to what was plainly the central concern of Congress, to wit, to those cases where state legislation is *98challenged simpliciter as directly offensive to some specific provision of the Constitution and where the claim is not entangled with other claims, usually turning upon the construction of local or federal statutes, which necessarily must be passed upon before the constitutional question is reached. I therefore dissent from the decision of the Court that we have jurisdiction in this case.
Prior to the 1925 extension of this three-judge-eourt statute to cover applications for final injunctions, there were also cases like the present one, where non-constitutional as well as constitutional claims were made, in which the Court accepted jurisdiction. See Louisville & Nashville R. Co. v. Garrett, 231 U. S. 298; Lemke v. Homer Farmers Elevator Co., 258 U. S. 65 (Lemke II); Cavanaugh v. Looney, 248 U. S. 453; Shafer v. Farmers Grain Co., 268 U. S. 189. Of these cases, only Louisville & Nashville R. Co. v. Garrett gave any attention whatsoever to jurisdictional considerations, and in that case there was no direct challenge to this Court's jurisdiction of the whole case under the three-judge statute on the ground that non-constitutional as well as constitutional claims were made. But there is an even more fundamental reason for discounting these pre-1925 cases as authority regarding the jurisdictional problem in the present case. As Garrett and these other eases were decided prior to the 1925 Jurisdictional Act, which drastically shrunk this Court’s jurisdiction on appeal, they arose at a time when the scope of direct appellate jurisdiction here over decisions of ordinary one-judge District Courts was much broader than it now is, and in fact applied under § 238 of the Judicial Code to all constitutional cases, including cases like the present one involving federal statutory grounds for relief in addition to constitutional grounds. See Spreckels Sugar Refining Co. v. McClain, 192 U. S. 397, 407-408; Macfadden v. United States, 213 U. S. 288. Thus the results in these pre-1925 cases, permitting the same scope of direct appeal to this Court in three-judge cases as § 238 then permitted in one-judge cases, were not as obviously out of harmony with the scheme of the federal judicial system in their day as I believe is the decision which the Court makes today.
The Court’s Rules 16, par. 1 (e)(1) and 23, par. 1 (c) emphasize the doctrine that a sub silentio exercise of jurisdiction is not controlling as precedent: “Only the questions set forth in the jurisdictional statement [or petition] or fairly comprised therein will be considered by the court.”
It is interesting to note that while the Judicial Code also contains a provision requiring three judges to hear cases seeking injunctions against federal statutes on constitutional grounds (28 U. S. C. §2282), Congress has left no room for doubt that in litigation attacking federal statutes if in fact (where the United States or one of its agents is a party) a federal statute is declared unconstitutional, the case is to be directly reviewed here. 28 U. S. C. § 1252 so provides.