were 'elected illegally', and so his conviction was unconstitutional.
Thus, while seeking consequentially to invalidate a state statute, his object here is to strip the legislators, who enacted the law, of their authority and to oust them, in retrospect, from office and title to office. This again is being indirectly done since title to public office may be tested only in Pennsylvania courts by procedures in quo warranto. Shoemaker v. Thomas, 328 Pa. 19, 195 A. 103; Mahoney Township Authority v. Draper, 356 Pa. 573, 52 A.2d 653; Spencer v. Snedeker, 361 Pa. 234, 64 A.2d 771.
Even such unstable assertions are met by an abundance of law which guides this Court. There is well-settled law that where one who is in possession of public office under color and authority derived either from election or appointment, however irregular or informal, and where such a one discharges his duties in behalf of the public or in public interests, the acts of such a one are valid and binding whether his status is de jure or de facto. This has been recognized as early as 1812 when in the Bank of America v. McCall, 4 Binn. 371, 4 Pa. 371, where a prisoner was indicted for murder in a court acting under authority of a government de facto, the indictment was legal and binding. See also Commonwealth v. Brownmiller, 141 Pa.Super. 107, 14 A.2d 907; Coyle v. Commonwealth, 104 Pa. 117; Warner v. Borough of Coatesville, 231 Pa. 141, 80 A. 576; Commonwealth ex rel. Palermo v. City of Pittsburgh, 339 Pa. 173, 13 A.2d 24; Borough of Pleasant Hills v. Jefferson Township, 359 Pa. 509, 59 A.2d 697; Town of Largo v. Richmond, 109 F.2d 740, 742 (5th Cir.).
Finally, it is incumbent upon this Court to pass upon the question however remote the attack upon the invalidity or constitutionality of the state statute involved so as to determine whether or not a three-judge statutory court should be convoked; for if a federal question is substantially raised by the relator, it would be incumbent upon this Court to have a statutory court convoked. Again by indirection, the relator seeks to restrain officers of the State of Pennsylvania in the 'enforcement or execution of the Act of 1939' by which he was arrested, indicted, convicted and sentenced.
Congress has provided
that no injunction, either interlocutory or permanent, may be granted by any district court upon the ground of unconstitutionality of such statute, unless the application therefor is heard and determined by a district court of three judges. A determination by three judges is not provided for where the validity of a statute is merely drawn in question, but only for a case where there is an application for interlocutory or permanent injunction to restrain the enforcement of a statute. Smith v. Wilson, 273 U.S. 388, 47 S. Ct. 385, 71 L. Ed. 699. Farmers Gin. Co. v. Hayes, D.C., 54 F.Supp. 43.
This provision does not require three judges to pass upon the initial question of jurisdiction. The existence of a substantial question of constitutionality must be determined from the allegations of the complaint.
It is incumbent upon the trial judge to determine in the first instance whether a case is one requiring disposition by a federal court convened in accordance with the statute. Ex parte Williams, 277 U.S. 267, 48 S. Ct. 523, 72 L. Ed. 877; J. B. Shermerhorn, Inc. v. Holloman County Treasurer et al., 74 F.2d 265, 266 (Tenth Cir. 1935). And where no cause of action is or can be shown on the facts alleged in a complaint so that no legally cognizable claim is stated, the complaint must be dismissed because it presents no substantial federal question. Carrigan v. Sunland-Tujunga Telephone Company et al., 263 F.2d 568 (Ninth Cir. 1959). Here the complaint with its circuitous approaches is completely lacking in substance.
In any event, a three-judge court has no relation to habeas corpus proceedings. Straton v. St. Louis R. Co., 282 U.S. 10, 51 S. Ct. 8, 75 L. Ed. 135; Moore v. Dempsey, 261 U.S. 86, 91, 43 S. Ct. 265, 67 L. Ed. 543; U.S. et rel. Murphy v. Warden of Clinton Prison, 29 F.Supp. 486, 489 (D.C.N.D.N.Y., 1939).
The writ of habeas corpus is extraordinary in character and should be used as an extraordinary remedy, and not for testing the ingenuity of individuals who seek to circumvent the consequence of their own wrongful actions, nor for testing the adventure of persons gambling for an opportunity for freedom on mere speculation or frivolity. Furthermore, the relator has not attempted to resolve any question of substance which he may not have resolved in the state courts. For all of these reasons the petition for a writ of habeas corpus is denied.