United Public Workers of America v. Mitchell/Concurrence Frankfurter

by Felix Frankfurter

Mr. Justice FRANKFURTER, concurring.

The terms of the Act of August 24, 1937, 50 Stat. 751, 752, 28 U.S.C. § 380a, 28 U.S.C.A. § 380a, in the light of its history, have convinced me that this case should be dismissed for want of jurisdiction.

In that Act, Congress put a limit to the time within which a case may be docketed here after an appeal below is allowed. Such a limitation by Congress is in the exercise of its power to regulate the appellate jurisdiction of this Court. It is not within our power to enlarge a limit fixed by Congress unless Congress itself gave the Court such dispensing power.

In allowing a direct appeal to this Court from a district court 'under such rules as may be prescribed,' Congress did not mean to give this Court power to defeat the considerations of speed in the disposition of controversies involving the constitutionality of federal le islation which led to the specific provision that a case be docketed 'within sixty days from the time such appeal is allowed'. No rule of this Court could disregard the limitations for perfecting an appeal made by Congress. Nor does Rule 47, 28 U.S.C.A. following section 354, which was the rule responsive to the Act of August 24, 1937, purport to do so. It merely reasserts the statutory requirement that in a case like this 'The record shall be made up and the case docketed in this court within sixty days from the time the appeal is allowed.' The introductory part of Rule 47, whereby the Rules of this Court regulating appellate procedure in other cases are adopted 'as far as may be,' has ample scope for operation without qualifying the necessity for speedy perfection of an appeal in cases involving constitutionality, so that the validity of acts of Congress may not remain in doubt through protracted litigation. This was a deep concern of Congress and its reason for imposing the sixty-day limitation for perfecting appeals in this class of cases.

But under compulsion of the Court's assumption of jurisdiction, I reach the merits and join in Mr. Justice REED'S opinion.