Appellants, Negroes living in Jackson, Mississippi, brought this civil rights action, 28 U. S. C. § 1343 (3), in the United States District Court for the Southern District of Mississippi, on behalf of themselves and others similarly situated, seeking temporary and permanent injunctions to enforce their constitutional rights to nonsegregated service in interstate and intrastate transportation, alleging that such rights had been denied them under color of state statutes, municipal ordinances, and state custom and usage.
Appellants lack standing to enjoin criminal prosecutions under Mississippi's breach-of-peace statutes, since they do not allege that they have been prosecuted or threatened with prosecution under them. They cannot
We have settled beyond question that no State may require racial segregation of interstate or intrastate transportation facilities. Morgan v. Virginia, 328 U.S. 373; Gayle v. Browder, 352 U.S. 903; Boynton v. Virginia, 364 U.S. 454. The question is no longer open; it is foreclosed as a litigable issue. Section 2281 does not require a three-judge court when the claim that a statute is unconstitutional is wholly insubstantial, legally speaking nonexistent. Ex parte Poresky, 290 U.S. 30; Bell v. Water-front Comm'n, 279 F.2d 853, 857-858. We hold that three judges are similarly not required when, as here, prior decisions make frivolous any claim that a state statute on its face is not unconstitutional. Willis v. Walker, 136 F.Supp. 181; Bush v. Orleans Parish School Board, 138 F.Supp. 336; Kelley v. Board of Education, 139 F.Supp. 578. We denied leave to file petitions for mandamus in Bush, 351 U.S. 948, and from a similar ruling in Booker v. Tennessee Board of Education, 351 U.S. 948. The reasons for convening an extraordinary court are inapplicable in such cases, for the policy behind the three-judge requirement—that a single judge ought not to be empowered to invalidate a state statute under a federal claim—does not apply. The three-judge requirement is a technical one to be narrowly construed, Phillips v. United States, 312 U.S. 246, 251. The statute comes into play only when an injunction is sought "upon the ground of the unconstitutionality" of a statute. There is no such ground when the constitutional issue presented is essentially fictitious.
Vacated and remanded.