The opinion of the court was delivered by: BIGGS
The petitioner, Daniel Kirk, a citizen of Pennsylvania, has filed a petition in the United States District Court for the Eastern District of Pennsylvania, at C.A. No. 36,239, alleging that he has been deprived of rights secured to him by Section 4 of Article IV and by the Ninth Amendment of the Constitution of the United States, because he was denied the opportunity to vote on a plan of reorganization set up by an Act of the Pennsylvania Legislature, viz: by Public Law 561 (Act of September 12, 1961, P.L. 1283; 24 P.S. §§ 2-202, 2-283). He seeks to enjoin the enforcement of the Act. Kirk then filed an amended petition, but the purpose and tenor of the amendment is not clear to the undersigned. The petitioner has asked for the designation of a three-judge court in the suit at C.A. No. 36,239.
On July 30, 1964, petitioner filed a second petition, viz., at C.A. No. 36,294, in the same court, repeating in substance, if not in haec verba, the allegations of the petition at C.A. No. 36,239.
Petitioner earlier had filed a petition at C.A. No. 32,323 in the United States District Court for the Eastern District of Pennsylvania which was disposed of by a three-judge court, designated by the undersigned pursuant to §§ 2281 and 2284, Title 28 U.S.C., on the ground that the petition failed to state a claim upon which relief could be granted. See Kirk v. Boehm, D.C., 216 F.Supp. 952, 953 (1963). The decision was affirmed by the Supreme Court, 376 U.S. 512, 84 S. Ct. 967, 11 L. Ed. 2d 968 (1964); rehearing denied 377 U.S. 920, 84 S. Ct. 1178, 12 L. Ed. 2d 188 (1964).
The present petitions allege that the subject matter contained therein is identical to the subject matter of the petition filed at C.A. No. 32,323.
In the light of the foregoing, I have concluded that the designation of a three-judge court pursuant to the provisions of §§ 2281 and 2284, Title 28 U.S.C., would be unnecessary and improper. I therefore refuse to designate such a court.
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