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conferred upon the state board with respect to other school districts in the State, the city of Wilmington should constitute a single school district. The District Court sustained appellees' claim that this provision invidiously discriminated against Negroes, finding that although there had been no intent to do so on the part of the legislature, the effect of the statute was to lock in Negro schoolchildren within the Wilmington school district in a way that might not have resulted if that district had been subject to the state board's discretionary power to consolidate as were the remaining districts in the State under the 1968 legislation. The District Court summarized this portion of the EAA in the following language:

"The key reorganization provisions of the Act provided an exemption of approximately one year from the long-standing requirement in Delaware law that consolidation of contiguous school districts must be approved by a referendum in each of the districts affected. 14 Del. C. §§ 1001-05. In other words, for a limited time, the State Board of Education was authorized to consolidate school districts according to the dictates of sound educational administration and certain statutory criteria. The Wilmington School District was explicitly excluded from the reorganization powers of the State Board by § 1004 (c) (4): "The proposed school district for the City of Wilmington shall be the City of Wilmington with the territory within its limits.' Wilmington was also excluded implicitly from any consolidation plan by § 1004 (c)(2), which limited shall be no fewer than 20 nor more than 25 reorganized school districts.

"(4) The proposed school district for the City of Wilmington shall be the City of Wilmington with the territory within its limits."

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the maximum pupil enrollment in any proposed school district to 12,000." 393 F. Supp., at 438-439 (emphasis added).

The difficulty with the District Court's holding, quite apart from its constitutional merits, is that the statute authorized action by appellant state school board only until July 1, 1969. As the District Court explicitly found, the reorganization powers from which Wilmington was excluded lapsed on that date. After that date, neither the city of Wilmington nor Negro schoolchildren attending schools in the city could suffer any discrimination as a result of the state board's enforcement of the statute: the state school board no longer had unilateral power to effect consolidation. That step can be accomplished only by approval of the voters in the affected school districts by referendum. Under Del. Code Ann., Tit. 14, § 1027 (1975), while a voter-approved consolidation plan can apparently be rejected by the state board in its discretion, a voter-rejected consolidation plan cannot be resurrected by the state board."

Thus by July 1, 1969, the state board had been relegated, Cinderella-like, to the status which it occupied prior to the 1968 legislation. The provision of § 1004 (c), limiting the authority of the state board with

"Appellees had originally claimed that § 1027 implicitly excluded Wilmington from its operation, 379 F. Supp. 1218, 1219 n. (Del. 1974), and therefore contributed along with § 1004 (c) to the alleged unconstitutional confinement. But the District Court in its present decision found that under § 1027 "consolidation of Wilmington with neighboring school districts is still possible by ... referendum." 393 F. Supp. 428, 442 n. 29 (Del. 1975). Section 1026, which sets out a similar mechanism for altering reorganized school district boundaries, does expressly exclude Wilmington. Appellees have not pursued their initial charge that this section also unconstitutionally confined black students, and the District Court did not mention § 1026 in its second opinion. Appellees have not asserted either claim on this appeal, and our inquiry can go only to § 1004 (c).

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respect to the school district consisting of the city of Wilmington, was relevant, if at all, at the time this case was heard by the three-judge court, only as a historical fact. Whatever may be the proper weight to be accorded this historical fact in the assessment by a single-judge district court of the factors made relevant in Milliken, it was functus officio as a part of an operative statute.

A three-judge district court cannot enjoin the operation of a statute which has expired by the time the court's decree is entered. Indeed, so strongly has this Court felt about the necessity for a "live controversy" that it has vacated the judgment of the District Court where the statute was repealed after the ruling of that court but before decision here. Diffenderfer v. Central Baptist Church, 404 U. S. 412 (1972). A fortiori, a prayer for restraint against a state officer's enforcement of a statute which expired prior to litigation presents a dead issue. The grant of judicial power in Art. III of the United States Constitution limits federal courts to cases or controversies, and a dispute about the constitutionality of a statute which is no longer in effect is moot in the classical sense.

II

Presumably the Court's summary and unexplained affirmance of the judgment of the District Court upholds its issuance of an injunction against the enforcement of sections of a law which by their own terms have expired. By reason of the summary nature of the Court's action, however, neither the parties nor the District Court can know what additional effect the affirmance here may have. Although the parties have briefed the Milliken issues, I believe that there are all but insurmountable jurisdictional difficulties to the Court's reach

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ing them, whether it were to affirm or to reverse the injunctive portion of the District Court's judgment. I would at the very least note probable jurisdiction and hear argument on them in order to make a principled determination as to whether we have authority on this appeal to deal with those issues at all.

A

On the assumption that the District Court was correct in issuing the injunction against the enforcement of the Delaware statute, an assumption with which I disagree for reasons previously stated, there is the most serious question as to whether the Court could reach the Milliken issues even if it wished to do so. This case is here on direct appeal only because 28 U. S. C. § 1253 authorizes such appeal "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."

This language stands in sharp contrast to the language of 28 U. S. C. § 1252, dealing with direct appeals from district court judgments invalidating Acts of Congress, the relevant language of which is:

"Any party may appeal to the Supreme Court from an interlocutory or final judgment, decree or order of any court of the United States . . . holding an Act of Congress unconstitutional in any civil action, suit or proceeding...."

Construing this language in United States v. Raines, 362 U. S. 17 (1960), the Court stated that it seemed "to indicate a desire of Congress that the whole case come up... Id., at 27 n. 7.6

The Court in Raines contrasted the scope of § 1252 with the scope of 18 U. S. C. § 3731, the Criminal Appeals Act. That

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By contrast, the much narrower language of § 1253 allows appeal here not from a final judgment or decree but only from "an order granting or denying . . . an interlocutory or permanent injunction...." It is established by the consistent holdings of this Court that this section, together with 28 U. S. C. § 2281, is to be narrowly, rather than broadly, construed. Gonzalez v. Employees Credit Union, 419 U. S. 90, 98 (1974); Phillips v. United States, 312 U. S. 246, 248 (1941).

The Court's opinion in Florida Lime Growers v. Jacobsen, 362 U. S. 73, 76 (1960), is highly instructive on this point. There the issue was whether, in an appeal pursuant to § 1253, this Court and the District Court had jurisdiction to entertain nonconstitutional attacks on the challenged statute as well as constitutional attacks. The Court held that they did. Mr. Justice Frankfurter and Mr. Justice Douglas in dissent contended they did not. I should think that if at the time of the decision in Florida Lime Growers it was a fairly debatable question whether this Court and the District Court could entertain nonconstitutional challenges to the very statute against which the injunction was sought, there could be little doubt that neither our jurisdiction nor the jurisdiction of the District Court would extend still further to embrace issues which were independent of and far more extensive than the assumed "present" invalidity of the challenged statute.

Act allowed the Government a right of appeal from particular types of decisions of a district court prior to trial in a criminal case, and the Court in construing it in United States v. Borden Co., 308 U. S. 188, 193 (1939), stated that "[t]he Government's appeal does not open the whole case." The language of § 1253, with which we deal, is much more akin to that of the Criminal Appeals Act than it is to that of § 1252. See also United States v. Keitel, 211 U. S. 370, 397-399 (1908).