*1 the con- affect will wrong. of his Circumstances ceeds the conduct knowledge them clusion, including charge unjust It party charged. would allow- his without gross amount of sales infringer with necessary were and labor that him for the materials ing that he sold, not follow things but does to produce to what do he for the chance paid what be allowed should no That is right position had do. knew he he findings as we understand Wrigley Company of this 253 Fed. stages Rep. suit. in the successive (2d) 731, 535, 537, 538. 5 F. 739. Rep. 275 Fed. if only 831. Even relief (2d) 830, 20 F. gross in- can is a from Company get
Wrigley deduction finally deter- liability’ amount of its come when Company will have to tax on mined, pay Larson them, in a it receives profits when case Wrigley to have one found been conscious and of what has been just think it we that'the further wrongdoing, deliberate not be allowed. should deduction allowance Decree as to taxes reversed. of federal MANUFACTURING COMPANY KING v. CITY OF
COUNCIL AUGUSTA et al. Argued March May 14, 1928. Decided
No. 392. *2 in error. plaintiff Cumming Bryan
Mr. Mr. Archibald Black- whom Callaway, with E. H. Mr. brief, for on defendants the. shear, City Attorney, error. opinion delivered Van
Mr. Justice Devanter the Court. Georgia in a court brought state
This is a ’suit City of an ordinance restrain the enforcement supplied' from a power rates for water Augusta fixing city. plaintiff maintained The canal owned and operates adja- a mill company which manufacturing is a supplied with water therefrom. power cent to the canal the ordinance is that it is re- objection- urged against to the contract clause of the Constitution of the pugnant States, invalid, and therefore it impairs United contract obligation prior whereby city under- took to for the supply power plaintiff’s water mill in per- at a lower rate than that fixed in petuity the ordinance. The court first instance held the ordinance valid and dismissed the suit. This accordingly was affirmed Supreme Court of Ga. and the case is here on writ of error allowed the Chief Justice of that court. on
.Counsel both sides treat the case as one which (cid:127)rightly may brought error, to this Court on writ of but some Court members doubt that it is such a case. Therefore question given will be immediate consideration. jurisdiction of this óf review writ error
judgments or decrees of de- state’courts last resort is fined 237(a) of the Code, Judicial forth set the amendatory act of February 13, 1925, c. 43 Stat. 936. -As there defined this extends to two classes of cases—
(1) “where is drawn in treaty or States, the United and the decision is against validity;”
(2) in question “where is drawn the óf a statute of on the any ground being repugnant State the Constitution, States, tó treaties or'laws of the United and the validity.” decision is favor of its
Plainly the is not present case the first within., pro- vision. Is it the second? depends within This on the “ ” -in sense which the words statute State are any used therein.' If are they used as narrowly comprehend- ing only an enactment of the state the legislature, case excluded; are they is but if used as broadly(cid:127) comprehend- ing any legislation proceeding law-making from the of the agencies State, the case is included... ” “ usage In is a term which re- has both a signification. and broad This is reflected in stricted following from Bouvier’s excerpt Dictionary, Law. Rawle’s Revision: 1 “ A established the act of the legis law Statute. power. lative An act of the legislature. The written legislature, solemnly expressed according the. will the forms necessary it the constitute law the state. t<¡) law the written designate is used to “This word unwritten law. contradistinction to the ap- generally is term statute civilians, “Among every provi- sort; of every and plied regulations to laws anything or ordains, permits prohibits sion of law which from what considering statute, without designated source it arises.” use does not of the United States The Constitution “ “ law,” often term statute,” employ but it does
term leg- exertion equivalent, to describe as an regarded presented a bill declared that Thus- it is power. islative favor- receiving prescribed if Congress, house either “ I, 7; Art. law,” become a consideration, § shall able ” “ proper and necessary make all laws Congress may powers, enumerated various executipn into carrying ” “ any post “ex pass no State shall 18; that Art. cl. I, § contracts,” obligation impairing law jacto law ór “ or enforce shall make State 1; that no I, § Art. cl. immunities any abridging privileges law” Amendment, Fourteenth States, of the United citizens of the and treaties Constitution, “laws” 1; that and land law supreme be the United States shall any- thereby, bound shall be every State judges ” to the laws of in the Constitution thing and that cl. notwithstanding, 6,' Art. contrary among extend, shall of the United States judicial power arising under equity others,, to all law States, United treaties Constitution, laws 3,'§ Art. *4 in what to determine each State
It of course rests with be may legislative power its agencies form and what constitution, in its' little or much may legislate exerted. It vote, laws direct the electorate make may permit entrust, func- law-making with wide legislature may legislative may delegate tions and subordi- and state councils agencies, such as nate corm- in form one missions. But whether this be exerted power another, another, or the enactments agency one put forth, provisions, laws, whether called constitutional legislative acts of the orders, ordinances or are in essence State; they and have no force otherwise. express its will As their respects Constitution If they United States all are on the same contra- plane. vene the that places restraints which instrument on the legislative power they invalid, of a are no State matter what their form or what agency put forth; for, as this said, Court has which these protection restraints afford in “whatever the form which the applies, legislative whether exerted; is, by constitution, it be power legislature, an act of the or an act of in- any subordinate strumentality exercising delegated State legislative .authority, like an ordinance of a municipality or an order Company Farrell, commission.” Standard Scale jurisdictional provision we are considering is de- of such signed protection. to be aid It proceeds on the theory through inadvertence or design those who are legislative with the of a power may entrusted State exer- the same a' manner forbidden by cise the Constitution States, and that the of the United state courts may uphold legislation such when it should be held invalid. Unlike action, legislation other state consists of rules having con- intended to tinuing force and observed applied regardless of future; and this the state agency from proceeds. which it
Were the an open one, these considerations would impelling afford reasons for holding juris- that the provision dictional uses words statute of ” larger their sense and is not intended to make a. distinction between legislature acts state and other exertions of the law-making power, State’s but rather to include every legislative character to which the act *5 State gives its sanction. But the is not an open one; it has been heretofore resolved keeping with just view indicated.
The jurisdictional provision originally of part § of the act of September 24, 1789, 73, 85, c. Stat. 20, which authorized this Court to review on of error \55rit judgments and decrees of state courts of last resort cases— “ (1) where is drawn in question the treaty or of, statute or an authority under, exercised the United ” States, and the decision is against validity; their “ (2) where is drawn in question the validity of stat- ute or an of, authority exercised under, any State, on the ground of their being repugnant Constitution, treaties or laws of the United States, and the decision is favor such their validity; (3) where in question is drawn construction any clause of the Constitution, or of a treaty, or statute of, or commission held under, the United States, and the against title, decision is right, privilege or commission under, specially up set or claimed by either party such Constitution, clause of treaty, said statute or commission.” By 5, act of February c. Stat.
section was reenacted —the first and provisions second change without and the third read as follows: (3) any title, where right, or privilege immunity is claimed under the Constitution, or any treaty or of, or held, commission or authority exercised under, States, and the decision United against title, right, privilege, immunity specially up claimed either set. party under such Constitution, treaty, statute, commis- sion, or authority.” three provisions third as so amended —were —the
carried into 709 of the Revised of 1873 and into Statutes § 237 of the^ Judicial Code of 1911. By the act of Sep- 6,1916, tember c. Stat. provision third vl06
eliminated so far as a concerned; review writ of error is the act of February 13, 1925, supra, the first *6 second provisions by omitting were amended from both “ ” the words or an authority exercised under with and that change were 237(a). reenacted in § . In order in provision second material one .that —the change case—and the may accurately made therein in mind quote we now in provision original both its and its amended form— “ in question where is drawn validity [Act 1789] exercised, a of, authority statute or an under, any State on ground being of their repugnant! to the Constitu- tion, treaties, or laws of the United States, and the States, and the in decision is favor of its validity.” “ in question Where is drawn [Act 1925] any á State on the ground of its being repug- Constitution, nant to the treaties or laws of the.United in States, and the decision is favor of validity.” its “ ” be seen that the phrase any It will statute of State in has been from the time of provision original its and enactment, phrase was that this retained the reen- change of 1925 qualification. So, actment without its meaning before the reenactment is meaning now. coming
Before to decided which we deem relevant it is well to' refer to some which, although cited as in Charleston, Weston point, not so. appear us to be and Home Insurance Augusta, Pet. Company .The examples. are first is a case where a tax ordinance of Charleston was sustained the statf objection court over the it was conflict with the Constitution of the United jurisdic States. Court’s This tion invoked, and was it sustained, p. 463, on th ground city’s that' the action adopting the ordinanc ” was the authority exercise of an under the Stab w; Whether the ordinance was a statute of the State riot The other considered. case also municip involved . against ordinance which the court upheld state had contention that it was clause conflict with contract of the Constitution. jurisdiction, p. 121, This Court took on grounds (a) that the exer- of an cised under the (b) State was in and right claimed under the Constitution was There denied. no negation of other grounds. Williams Bruffy, the first case phrase which the a statute juris in the dictional provision was There considered construed. a debt arising contract Vir owing a citizen of ginia to citizens of Pennsylvania sequestrated had been during the Civil War under an enactment of the Confeder ate States and from the collected debtor that Govern ment. After the war the brought creditors against a suit *7 the debtor’s administrator in a state in Virginia court to collect the debt. The defendant interposed pleas setting sequestration the up and collection under the confederate Judgment enactment. went for the defendant on these over pleas plaintiffs’ objection the that the confederate was enactment invalid under the Constitution; and the Supreme Court of Appeals sustained that The ruling. to this brought case was Court on of error, juris writ its on being grounds diction invoked the that the case was (a) one where the of both a statute of the State and under the State question was drawn in to the Constitution repugnant as sustained,' was a (b) right, privilege and immunity where claimed under jurisdiction the Constitution was denied. The was con but tested, expressly was sustained on in grounds both opinion by Mr. Field, considered Justice speaking for In sustaining entire Court. ground first he said pp. 182-183: “ The aver pleas that a confederation by was formed Virginia States, and other called the Confederate States of America, and that a law this confederation,
1Q8 was plaintiffs due to the the debt Virginia, enforced United States Now, Constitution sequestrated. by one alliance, or confederation any treaty, prohibits enactment organization whose with another. State as in this therefore, regarded be cannot, pleaded is whatever It that having any existence. legal follows must efficacy Virginia possessed enactment Any that State. given attributed sanction to to the to which originating, from whatever source enactment (cid:127) State, force of a statute gives law relating to cited the clause within the con- a narrow of this Court. It would be as have such enactments to limit the term to struction leg- various of consideration stages gone through con- acts authorized many There bemay islature. it, convention framed stitution to the consideration have not been submitted which By efficacy yet its have all the of laws. legislature, having any as recognized can only authority which be. existence, legal is, Virginia, the State act confederation was a law the unauthorized enforced drawn Its the Commonwealth. Constitution repugnant that it was ground decision the court below and the States; of the United validity.” favor 594, is much like the case Surget, just Ford v. in a state court Mississippi sued plaintiff cited. *8 himto the defendant belonging for which recover cotton the Civil War during that State destroyed had an enactment of the Confederate States. obedience to the up set that enactment By special pleas defendant the and trespass; of the insisted plaintiff justification contrary that enactment was to by demurrers the the The judg demurrers were overruled and Constitution. defendant, Supreme the which the given ment was brought this Court affirmed. case was to Court contested, although writ'of error. The jurisdiction, sustained in of Mr. Justice Harlan. He opinion an . quoted from approval with the above extract Williams v. Bruffy, added, 603:. p. general of the court overruling orders state the every sense, demurrers essential accepted, must/be of of adjudication iñvfavor the an act ^congress, recognized confederate and enforced as law act, and which to the rule' laid Mississippi, according therefore, down in that case, be, regarded by must us as a statute within State, pro- of that the the declaring jurisdiction visions of the act the appellate power this It we have court. results that to review final judgment Supreme Mississippi.” Court Griffith,
Stevens is a case where the Supreme Court of Tennessee had effect to an enact given ment of States. This the Confederate Court said, there . reciting after in Williams v. ruling Bruffy, 51: p. in this the Confederate
“So, enactment, case money which the confiscation of the can had, be Tennessee, as a only treated whose sanction nn of that it was enforced as a law State.” > Orleans Sugar New Waterworks Co. v. Louisiana Re- Co., 125 U. is a fining case wherein this Court was asked on writ error to review a judgment of the Su- preme giving Louisiana effect to an ordinance New Orleans against impaired contention that obligation opinion of a contract. The was Mr. stating be within Gray. that, Justice After to the con- Constitution, impairment tract clause must be “by State,” law Court “has no judgment of the highest review court of ground obligation of a contract impaired,, legislative has been unless some act been re- upheld judgment sought has and after quoting with approval statement viewed/-. *9 whatever enactment, from Bruffy “Any v. in Williams — law, force gives a to which State originating, source clause meaning of the State, within a of the is statute said, he Court,” jurisdiction to the relating cited 31: p. “ municipal corporation by-law a or ordinance So delegated legislative power exercise of may be such sub- corporation political a legislature all the force of law within State, having division municipality, may properly limits law, within the this article as a considered States.” of the United the Constitution v.Co. Storage Chicago, In North American this Court from a which came to Circuit Court of the presented whether States, United was. action within municipal ordinance state the clause ” Amendment prohibiting any the Fourteenth State equal protection. due denying process from said, 313: p. “ In this in question case ordinance is to be re- garded as in effect a statute of the adopted granted power legislature, state and hence it an act of the State within the Fourteenth Amendment.” which put construction on phrase jurisdictional provision the decisions Williams Bruffy, Ford Surget Stevens did stop not with those cases, but has Griffith been approvingly applied followed and in later cases.
In Atlantic Coast Line R. R. Goldsboro, Co. v. 548, this Court was asked to review of error a writ judgment Supreme Court of North Carolina giving to a effect municipal ordinance over the objection that it was invalid under the Constitution of the United States. Mr. Justice Pitney, speaking for the sus- court, entire tained its point on that said, p. 555: “A by-law ordinance, enacted virtue of *10 for power that purpose delegated by legislature the of the a State, meaning state law within the of the Federal Constitution. [Citing cases.] any enactment,
“And from whatever source originating, a gives to which State the force of is a the law, statute of the meaning within clause of pertinent § Stat.; Rev. Judicial confers Code, jurisdic- which § tion on Bruffy, this court. Williams 96 U. S. v.
183.” Rock,
Reinman v. Little came here from U. of on Supreme the Court Arkansas writ of error. The sole question was the validity municipal a involved ordinance, which the state court had sustained against objection the that conflict it was in with the Constitution of the United States. Mr. Justice Pitney again speaking for the entire said, court 176: p. “ The decision of the state court of last con- resort is the upon clusive that the ordinance point under con- scope sideration is within the of the powers conferred legislature upon the state the city Little Rock. council It treated, must therefore be for- the purposes of our jurisdiction, legislation as act of proceeding from law-making.power State; municipal ordinance authority delegated by under passed legislature is á meaning law within the of the Federal state Constitu- enactment, from tion; whatever origin- source the force ating, gives law, to which State is a statute of Judicial meaning Code, of the State within § jurisdiction upon this which confers court. Atlantic Goldsboro, 232 Line S. 548, 555, v. Coast cited.” King,
Zucht was brought here on writ of solely ground the state error court had up- against ordinance held a contention that States. United invalid under the Constitution the initial Court dealt with This follows, 176: p. Federal “The of the ordinances objections properly in question by Constitution was drawn Á within city below. a law of the State taken ordinance is amended, Code as 237 of the Judicial which error where the provides review writ a law highest is sustained court Atlantic in which a decision the suit could be had. Goldsboro, Coast Line R. R. 548, 555.” Co. Bruffy in Williams Further applying ruling held an order a state com- has repeatedly legislative mission of delegated made the exercise *11 in the of the authority is a statute of the sense State jurisdictional from provision. Excerpts some brought cases —all here state courts writs from error-r—will of decision. suffice to show the course order, Such an its nature and made being legislative in within by instrumentality State, an of the a state law is and United States Constitution Erie Lake Congress jurisdiction.” laws our regulating Commission, Western R. Utilities & R. Co. v. Public 422, U. S. 424. “ The rates prescribing of the order it directly challenged on and was grounds, constitutional The pre held valid court the State. highest scribing of act. The is legislative rates is commission an instrumentality exercising delegated order force would powers. Its is same as legislature. If, alleged, as the pre like enactment is are the order Plaintiff confiscatory, scribed rates void. here on error is entitled to the case writ error bring this Court. The question and to decided have Waterworks motion to dismiss be denied.” will Bluefield Commission, Improvement & Service Co. Public North- 683, S. followed and 679, specifically applied U. Ry. Department Works, ern Co. v. Public Pacific 39, S.U. 42. “ The cause here writ of error. upon Considering circumstances disclosed the record have no we jurisdiction unless it that- in the affirmatively appears court below there duly drawn authority
of a statute or an exercised under the State repugnance because of to the Constitution, treaties or laws 237, of the United Code, § States. as amended Sept. Jud. rulings 1916. Under repeated here, jurisdictional the order of the Commission purposes must be treated though Legislature.” Act of the Water Live Oak Commission, Users Ass’n R. v. R. U. S. Sink-, Dock Commissioner and the ing trustees, Fund under the Act 1871 [they exercised legislative delegated power], is such as to make the plan equivalent and refusal to a statute of the State, and, assuming that it is conflict with the grant cove- nants of deeds, relators’ ais law of the impairing a contract obligation under I, Article of the Federal Constitution. [Citing New Orleans Waterworks Co. v. Sugar Louisiana Co., Refining 125 U. S. Williams 18; Bruffy, 96 other We have cases.] jurisdiction of the writ of error under 237§ of the Judicial Code.” Appelby v. Delaney,
A like view of order, legislative nature, in of a state commission haS been taken in other related Grand cases. Trunk Western Ry. Commission, v.Co. Railroad 400, 403; Louisville and Garrett, Nashville R. R. Co. v. S., 298, 318; Arkadelphia Milling Co. v. St. Louis Southwestern Ry. Co., 249 U. Oklahoma Russell, Natural Gas Co. In no case phrase has the a statute of any State in jurisdictional provision been construed otherwise than as shown review. foregoing With use else- indicative its use in connections especially where — concerned. now are not sense—we a different February 1925, which the act of that It is said was enacted with jurisdictional provision amended obligatory jurisdiction contracting the the purpose purpose such a recognize that there was We Court. this act it. But the dealt given should be to that effect re- including those jurisdictional provisions, with several coming Circuit from the to this Court to cases lating Courts, Ap- the Court of the District Appeals, Courts Columbia and the Court Claims. of the District of peals change to cut down and purpose that It shows and to leave' it as particular respects our here with a particu- in others. We are concerned before jurisdiction, cutting lar as to which there was no down original in the whereby The terms it was defined change. retained, were and thus it was left as before. provision in question We that the ordinance is a accordingly hold jurisdic statute of State within case is here rightly tional and therefore this provision, on error.* So we turn to the merits. writ of and terms of the ordinance are not in dis- adoption questioned is it that the became pute. city obligated Nor ordinance water from its supply power before long to questioned mill. But it is plaintiff’s canal for engagement designated price there was rate Both for the city courts below found perpetuity. finding respect, That is entitled but point. is not this this Court eases like this, for it rests with conclusive; said to have been obligations impaired are where contract contrary to the constitutional legislation subsequent determine whether there was contract restriction, St. Paul Com- Light Gas from it. obligations arose what * Cambridge, Sprout Bend and Nectow v. South Followed in post, pp. 163, 183. day, decided *13 York, Paul,
pany 142, 147; Appleby v. St. v. New 379-380. It is admitted that there was here no that a arose formal contract. But it is insisted contract from correspondence repre conversations and between plaintiff city, sentatives of the and officers of the for a or rate engagement designated price included have been It perpetuity. proofs considered. would serve no to review them purpose opinion We think fall they showing any engagement short re other than that it was be the specting rate, to estab in general. lished rate for users The rate had fixed been when the plaintiff right ordinance obtained to have water to its power supplied mill, was, but as we there con proofs, engagement strue the no that that rate should con indefinitely. city may tinue be under a duty sup ply the at reasonable power rate Millers v. Augusta, [See 772], Ga. but that is not this case. The objection confined plaintiff’s impairment asserted contract. prior
Judgment affirmed. (cid:127) (with whom Mr. Brandéis Me. Justice Justice concurs), dissenting. Holmes
I think that the writ of error should be dismissed. The below judgment entered after the effective date of the Act of February 13, 1925, c. 43 Stat. 936, 937, 942. That Act strutík from 237 of the Code the words Judicial or an exercised under State.”1 The sec- as the right tion so amended limits of review writ of error to cases the highest court of a State has where denied or statute of treaty States, United has affirmed the validity of a statute of a State, challenged repugnant to the Constitution, treaties, laws
1 The Act of 1925 also struck out the words or an authority exer cised under the United States.” *14 .
United States. Other cases can be only reviewed if this in the Court, discretion, grants exercise of its a writ of challenge Here the was to the validity of an certiorari. of a I if city. Congress ordinance cannot believe that had intended to maintain judgments our to review sustaining error, such ordinances on writ of it would not in language have found clearer express which to purpose. before is interpretation, us not of the “ in laws,” Constitution,
word used but the narrower “ in statute,” Judiciary term Act of employed 20, 25,1 § c. Stat. 85. And our task is to not construe, “ single statute,” phrase word but the statute of “ regulations Laws or adopted by State.” municipality in either called, speech, by- are common ordinances or 2 In “ laws, connections, not statutes.” some rules estab- -Thus, to as by lished an institution are referred statutes. university or its adopted the rules founder are some- university. no times as statutes of the But one spoken call them of the State under whose law the would statutes any one, Nor would university incorporated. refer- 2 cities employed in the charters of American These are the terms adóption 'of the both before and since Constitution. and towns apparently by They continuously employed all text-writers have been “ a mu government. Local laws of municipal corporations proper prescrib duly authorities, nicipal corporation, enacted conduct, relating permanent rules of ing general, uniform and municipality, are, generally in this country, corporate affairs of the ‘ ’ ’ ,was bye-laws original By-laws or''- designated as ordinances. 1; McQuillin, Municipal Ordinances, 2 MeQuiUin, designation.” § “ legislative The result of action Municipal Corporations, 632. § usually assembly is a local law denominated municipal or council Municipal Corporations, also Abbott, See 2 ordinance.” § 270; Munro, Municipal Corporations, p. Municipal ed., Dillon, Municipal Govern Administration, p. Reed, Government writers found where such have has been ment, p. No instance ordinances, municipal referring to statutes used.the word to the ring regulations laws adopted municipal other corporations, of them speak statutes State.” Has the phrase as used in originally § 25 Judiciary 73, 85, Act of September 4, 1789, 20, Stat. c. and as reenacted of the Act of February 5, 1867, § Statutes, c. Stat. the Revised finally § 237 the Judicial in the Act of Code, and 1925, acquired a different, conventional, meaning so that it must be held include municipal ordinances?
Our jurisdiction judgment to review a of a state court sustaining ordinance alleged to be in- repugnant Constitution, to the Federal first *15 City Charleston, Weston Council voked Pet. Judiciary 463-464. Section. 25 of the Act of which amendment, then in was force authorized re a- without “ by any view writ of error in ques case where drawn tion the of a statute or validity of, exercised authority any under ground being on the of their repugnant States, to the treaties or constitution, laws United in favor- of their validity, decision is such where or in question is drawn the construction of clause of the or or constitution, treaty, of, statute or commission States, held under United against the decision- is (the the title, right, privilege exemption specially set up claimed either under such clause of the party, said Constitution, treaty, juris statute or commission.” The having been"questioned, diction of the nature because of. Chief; Mr. Justice Marshall took occasion proceeding, specify clause of 25. which he conceived the - to rest: jurisdiction .
“In this the city casé ordinance of Charleston is the. exercise the State of Car- South an,‘authority,under ‘ the has which been drawn in question olina/ on the ground being repugnant to the constitution/ ‘ and the decision is favor of its ’.” jurisdiction
The exercised, then declared was without question, cases involving municipal ordinances came before the next during half In century.3 subject reconsidered in Home In- carefully surance City Co. v. Augusta, Council After stating the possible bases of 709§ of the Revised Statutes, Court said: there Here was drawn in question the authority exer- cised by the city council under the State in passing the ordinance imposing the tax complained of. The question raised was as to its to the repugnancy Constitution of the United States; and the decision inwas favor of the valid- ity of the A right so exercised. was also . claimed under the Constitution of the United States. The decision was adverse to the claim. case is, The therefore, within two of the categories we have stated. jurisdictional objection cannot be maintained.” The Court hardly would have omitted to say that review
might also have been had virtue of the clause if opinion it had been of that a municipal ordinance could properly so described. categories second mentioned Home In-
surance
City
Co. v.
Council
Augusta, was eliminated,
so far as the right
to review writ of error was concerned,
September
the Act of
6, 1916, c. 448, 2,§
39 Stat. 726.
In
the showing
merely
where
that a title,- right,
*16
immunity guaranteed
privilege
by the Constitution had
denied,
been claimed and
that Act provided that
there
could be no review except by certiorari. But as it left un-
changed the
regarding
clause
of
an authority,
on which Mr. Chief
Marshall
Justice
had based the power
of this Court to
judgments
review
sustaining-municipal
ordinances,
jurisdiction
our
over such judgments remained
”
When,
1925,
unaffected.
authority
clause was
3 Waring
110;
v.
Mayor,
8 Wall.
v. Parham, 8 Wall.
Woodruff
123;
479;
16
Mobile,
Osborne v.
Wall.
Cannon v. New Orleans, 20
Compare
577.
Wall.
v.
119 Code and our struck from 237 of the Judicial § section; to under was limited writ of error statute, Congress of cannot have involving been for jurisdictional purposes, unaware the difference, of ordinance. municipal' between-a statute of a State and For to difference num- had been called attention jurisdictional erous acts —the most decisions several recent of wide interest. public being 309, June c. 36 18, 1910, 539, 557, Act of Stat. in the 266,
§ § 17 of which embodied Judicial Code as was “ interlocutory injunction no suspending declared that restraining enforcement, operation, or execution of any by restraining statute of a State the action of any officer of the enforcement such or execution of hearing such should issue except upon before three An there judges provided. unbroken line of de- has cisions, beginning 1911, held that a a statute ordinance is not within the of meaning that sec- & tion. Sperry City Tacoma, Hutchinson Co. v. 190 of Telephone & Telegraph Cumberland Co. v. City Fed. 682; Birmingham Memphis, Water Works Co. 955; 198 Fed. City Birmingham, 497, v. Fed. affirmed, 213 Fed. Seattle, City City Calhoun v. Des Fed. 450; 226; , City Moines Moines Des Gas Fed. Co. Telephone Dallas Co., Dallas Fed. See also Orleans, Land Development City Co. New (2d) F. 898, merits, (2d) F. reversed on The prin- decisions, cipal ground namely, of these that the natural ’ is a meaning state statute or law directly ‘^statute Legislature of the passed by state,' and the iSte natural ’ ‘ officer such is an officer state whose throughout state, extends not and is limited (198 Fed. district,” a small 957) is, of course, § 237 of Judicial equally applicable Code. It can- not Congress. have been unknown to The construction already had established when been Act March c. 37 Stat. amended 266 so as to make *17 120 enjoin the orders of a to suits to state clearly applicable Act after the words amending inserted
commission.4 “ of such statute,” or execution in the enforcement or execution of an order “ in the enforcement words or commission acting board made an administrative of such State.” Con- to the statutes under and pursuant amendment reference to gress did not.include fact that it did not sig- ordinances. municipal nificant.5 4See the debate in at the Cong. preceding-session, 48 Senate The House
Rec. 8120-8123.
Committee on
Judiciary
was of
opinion
broadened,
that the statute should be
prevent
so as to
(i.
single judge)
this kind of
a
e.,
interference
'with
officials
performing
provisions
are
their duties under
who
of a statute
legislature
enacted
of a
Report,
Cong.,
House
State.”
62d
1584, p.
Sess.,
Clayton,
3d
2. Mr.
in charge
No.
who was
of the bill
House,
purpose
put
said that' its
to
the order of a State
upon
equality
commission
State;
railroad
with a statute of a
give
words,
other
the same force and effect to the order of a State
d
fixing
railroa commission
existing
rates as is accorded under
law to
Cong.
a State statute.” 49
Rec.
passed expressly
Court has not
on the
This
construction to be
given
respect.
266 in this
February
Until amended
the Act of
§
13, 1925,
require
presence
judges
266 did not
of three
at the
hearing;
appeal,
final
and on
to this Court from the final
.the
decree
propriety
single judge
granting
denying
the action
.injunction
temporary
strictly
Carter,
was not
in issue.
Shaffer
if
power
U. S.
44. But
this Court had doubted the
of a Dis
Judge
cases,
hardly
trict
to act in such
it would
have mentioned with
judge
granted
out comment the fact that such a
had
or denied a
number,
injunction.
temporary
This it has
done
of cases. See
517, 519;
United Railroads v. San
249 U. S.
Southern Iowa
Francisco,
Chariton,
541;
Co. v.
Galveston
U. S.
Electric Co.
Electrfic
v.
Galveston,
Ry.
Paducah
Co.,
v. Paducah
267, 271;
Cloud,
St. Cloud Public Service Co. v.
St.
S.U.
355. Since the effective' date of the Act of
this Court has
¡of
decided;
Appeals,
on certiorari Circuit
Courts
number
n
application,
injunctio
temporary
against
in which an
for a
the en
ordinance had been
before,
forcement
heard
and the
by,
single
final
a-
judge.
decree rendered
district
See Hammond
*18
thq difference,
Prior to the Act of
for
1925,
purposes
review,
of
and a law enacted
appellate
between
legislative body,
a subordinate
had been called
attention of Congress
also
the cases which settled
that
of
legislatures
enactments
other
and
law
of
making bodies
the territories and of the District of
Columbia are not
statutes
United States within
of
legislation
the jurisdiction of
governing
this Court.
question
appears to have arisen first un
der the
3,
Act March
1885,
355,
2,
c.
23 Stat. 443.
§
The phraseology of this statute was similar to that of
§ 25 of the
Act
Judiciary
1789,
.of
and this Court has
always recognized that decisions under it and its later
reenactments are authoritative with regard to the con
.6
§
struction of
237 of the Judicial Code
It permitted
Schappi
Line,
Bus
164;
Hammond v. Farina Bus Line &
275 U. S.
Transportation Co.,
Delaware,
173;
275
Lackawanna & Western
U. S.
Morristown,
R. R. Co. v.
review drawn of Columbia where or of the District ritory an author of or or statute treaty Thereafter, the United States.” exercised under ity creating the modified the Act as provision, 8,§ 1893, c. District, February 9, for the Appeals Code, District Stat. 434, 436; § Stat. highest courts jurisdiction over the appellate our
governed Alaska) than (other territories the continental Code, enactment of the Judicial until the District 245 and, important with was embodied which it our over appellate jurisdiction § 250. That changes, as *19 of of territorial validity the acts involving judgments District, the legislative body and of the of legislatures of such allowing the Act 1885 on the clause depended authority an under validity the of exercised review where challenged, indicated the United had been was States Arizona, 347, & R. R. Co. v. 156 U. S. Phoenix Maricopa Columbia, 170 and Parsons District U. S. 350-351, of 45, subject fully 49-50. The was in'more re discussed & Thus, cent McLean v. Denver Rio Grande opinions. our Co., 47-48, 203 U. S. to review
R. R. 38, Mexico Supreme up of the New judgment on- validity of a sustained holding territorial law was “ the validity authority that exercised ground passage under the United States enforcement of the law and the directly challenged, case in-' does validity volve the of an exercised under the derived from the United power States.” The right to review on appeal judgment involving the an ordinance or regulation of the District of Columbia ground rested the same upon, Smoot Heyl, 518, 522, although U. S. authorizing statute the Dis trict Commissioners to make regulations that provided they should have same force and effect within the District of if Columbia as enacted Congress.” Act 194, of June 1878, c. Walker Stat. See also Gish, S.U. V. similar
A, ruling was made in Board Utility Public Commissioners R. Co., v. Manila Electric R.
262, where this Court dismissed an- and a appeal writ error to review, Code, Judicial a judg- ment of the Supreme Court the Philippine Islands. That section, until amended the Act September 6, c. 39 Stat. 726, 727, authorized review by writ error of a appeal, judgment highest court the Philippine Islands either where construction the United States in- volved. Fianza, Reavis v. Gsell 16, 21-22; Collector, Insular 94-96. Railroad challenged an order of the purporting Commissioners to be made in execution of an Com- Philippine Act.of mission authorizing city of Manila grant a franchise ordinance passed under the powers granted. thereby This Court dismissed the appeal writ of error for want of jurisdiction, necessarily holding the mere con- struction the court of the franchise ordinance, and its consequent ruling duty not did rest on Company give Railroad the free transportation which the orders of the Commissioners had directed to be given” did not involve either the construction or the *20 States; validity of .a of statute the United' of Obviously, the statutes legislatures, territorial the regulations of of the Commissioners the of District Colum- bia, Philippine the statutes ordinances bear á relation of Congress to that wholly acts is comparable municipal that ordinances to borne the statutes .to of a.State. passed legislature Congress by the cannot “ Act of the phrase have intended that the statute ” be including of State read municipal should as ordi- under while, like circumstances, nances within a State the United States of the does not phrase statute include where Columbia, even the District of ordinances the have the ordinances shall enabling provides act the of the United Congress if force as enacted the the same States. deemed to are
Moreover, if ordinances (a) §of of a within the statutes State commissions, of state Code, legislative Judicial orders the Act of Prior and officials must be also. boards, of such orders sustaining the 1925, judgments as fully judgments of error as were reviewable on writ the ordinances. Betwedn sustaining validity of states and the of the Act. 1916 and Act effective date in 21 cases which opinions this Court wrote involving of a judgment highest court of an order of a commission was reviewed on of error.7 In none of the was stated that opinions writ jurisdiction existed because an order is McCarty, hand, State.8 other OnUhe Lancaster Commission, In Live Oak Users Association v. Railroad Water asserting jurisdiction judgments Court, over while error, judgment as sustaining orders, a writ such dismissed grounds. non-federal adequate below rested on jurisdiction challenged & was first Water Works Bluefield Improvement Commission, 262 v. Public Service S. Co. prescribing p. legislative of rates is a at 683: The act. said .Court instrumentality delegated- exercising The commissionis an powers. of the same force as would be a like Its order is enactment alleged, prescribed legislature. rates are confisca If, bring Plaintiff in error is tory, order void. entitled the case to have that of error and decided here on 'writ Ry. Department Works, In Northern Co. v. Public Court.” Pacific 39, 42, assumed on the In Live Oak Water Users Association case. v. Railroad Bluefield 354, 356, jurisdic Commission, 269 said that "for S.U. order of the purposes the Commission must be tional treated as Legislature.” This- said, though course, Act of the with under the judgment Act the situation reference to October was entered review
125 U. S. our jurisdiction where re- invoked to view, error, writ of the judgment of a deny- state court ing of ah validity order of the Interstate Commerce Commission, was sustained on the ground that the order is an authority exercised under the United States which the contention shippers was drawn question,, its validity denied the state court.” Can that, it be while our power to review on writ of error a judgment of a state court denying the of an validity order of the Interstate Commerce Commission rested on the clause, our power to review a judg- ”. sustaining ment of an validity order of a state com- , mission . did not?9 The difference between a statute and an ordinance for purposes appellate review —a difference which rests wholly on expediency been acted upon by Congress —had half century earlier, when it undertook to deal with the congestion of business in this Court by regulating
9
judgment
Since tbe effective date of the Act of
no
of a state
error,
court has been reviewed
this Court on writ of
where the sole
that,
claim was
a commission order' was unconstitutional.
In
fol
cases, governed by
lowing
the Act of
in which this Court
re
judgment
error a
viewed on writ of
of a state
sustaining
court
order,
underlying
commission
Trucking
was attacked: Frost
Frost
&
as well as of the
Co. v.
order
Commission,
Chicago,
583;
Railroad
271
Milwaukee & St. Paul
U. S.
Ry.
Commission,
605;
Co.
Miller Lumber Co.
v.
272
U. S.
Railroad
Paper
Fox
(Per Curiam);
Floyd, 273 U. S.
River
672
Co. v. Rail
v.
Commission,
Barker,
651;
Pierce
(Per
road
274 U. S.
274
v.
U.
718
S.
Kuykendall,
Lumber Co. v.
Curiam);
Stimson
Inter
275
U. S.
Commission,
R.
Co. v.
national Great Northern
R.
Railroad
275 U. S.
Chicago,
Ry.
Milwaukee
(Per Curiam).
In
& St. Paul
Co. v.
503
Commission,
Public
Aetna Insurance
344, and in
Utilities
U. S.
274
Hyde,
In Aetna
440, the review was
Co.
v.
certiorari.
Baker,
Compare
Insurance
S.
Co.
U.
denied.
certiorari was
Phillips
Curiam);
Oklahoma,
(Per
Phillips
v. Okla
priority Dows, City 176; Davenport 15 181, c. 16 Stat. 1870, Congress, It reaffirmed when 390, Wall. 392.10 the Dis- right appeal to a direct from 1925, withdrew involving municipal in cases trict Court in certain ordinances, allowing .appeal such an though validity of statutes and of com- involving cases orders identity the other the essential hand, missions. On ordinances, orders, where the con- statutes; always been rights, recognized. cerns substantive has by competent authority all established regulations Since ” “ term laws has used laws, comprehensive are been to include all forms of legislative when it was desired act enactments, body of a as the subordinate Thus, ion.11 authority are a exercising legislative part laws or an State, ordinance order is law within the mean- the contract clause and is state action ing within the Amendment. North Fourteenth prohibitions 10 explained why con Chase the Act should be Mr. Chief Justice municipal applying only not to as to statutes and ordinances: strued “ plainly enough, presumed because of preference, This is givei^ such and internal importance of administration welfare dignity equal States, and because of their as members of the municipal preference apply for The reasons do not cor Union.' many corporations.” than to railroad and other porations, more p. 392. 11 which; jurisdiction, upon procedural like rest Iri consid matters — expediency difference betweeii statutes and ordi erations —the legis observed, in been some instances even when in the nances has “ ” comprehensive term laws was used. the more Such lation Davenport City supra. Again, while v. Dows, the case “ (cid:127) laws of the states within the .are several ordinances , Judiciary 73, 92, and 721 Act of 34 of Stat. § 1789 théy Statutes, judicially will not be noticed the federal Revised statute, courts; public but a mere mu an ordinance not. Tramway regulation.” Co., 164 Fed. nicipal Robinson v. Denver Ry. Compare Co., 131 Fed. Garlich Northern 176. Pacific 837, 839; Choctaw, Hamilton, 182 Fed. O. & G. R. R. Co. v. 306, 313; Storage American Cold Co. v. U. Chicago, S. Commission, Ry. Co. v. 221 U. S. Grand Railroad Trunk Lake 400, 403; Oregon, 150, 162-163; Ross v. Commission, Erie & R. Western R. Co. v. Public Utilities Farrell, 422, 424; Scale U. S. Standard Co. For, has out in New pointed this Court Co., Orleans Sugar Refining Water works Co. v. Louisiana true, it is strictly not and literally that a law in order to come within constitu tional must prohibition, be either the form of a statute enacted legislature the ordinary legis course *23 or -in lation, the form aof constitution the by established ,as people their fundamental law.”12 Prior 1925, to the Act of final judgments of a district or circuit court involving the constitutional validity of a municipal ordinance could be brought directly to this by Court writ of error or appeal § of the Court of Appeals Act, Act of March 3, 1891, 826, c. Stat. 827-828, of Code, § and the Judicial because such re- any view was in' authorized case that involves the con- or-application struction of the Constitution. of the United States,” “in any case which the constitution or law of a State is claimed to be contravention of the Con- .in stitution of the United States.” Davis & Farnum Manu facturing Co. v. City Angeles, Los 189 U. S.
Boise Artesian Water Co. v. Boise City, 230 U.
84, 90;
S.
Farrell,
see Standard Scale Co. v.
When it
timposed by
Cour
review
upon
right
solely
made
increase
of 1925 were
because
Act
why Congress
compelled,
the reasons
business
Court’s
to a review
writ
away
right
have taken
should
in cases involving
court
state
highest
error to
ordinances,
leaving
right
unaffected
while
statutes,
becomes clear.
involving
in cases
were
1920 there
924 munic
only 48 States.
In.
There are
*24
inh
8,000
more than
United. States of
ipalities
of even
validity
The
of ordinances
smaller
abitants.13
adjudication.14
had come to this Court
municipalities
13
,
I,
27.
(1920), vol.
table
Fourteenth
of the United States
Census
14
289;
g., Brennan v.
U. S.
Titusville, 153
Wabash R. R.
e.
See,
88;
32;
U. S.
City,
Defiance, 167
S.
v. Eureka
173
v.
U.
Wilson
Co.
354;
Skaneateles, 184
S.
U.
Western Union
Skaneateles Water Co. v.
419;
187 U.
Hope,
Talladega, 226
Co. v.
S.
Williams v.
Telegraph
New
Village
In
404;
498.
Corporation
Hope,
v.
S.
U. S.
Oil
Pierce
Village
University
710,
273 U. S.
Errett,
and
Terrace Park v.
of
of
Orphans Home, 275 U. S.
the Court
v. Cleveland
Heights
Jewish
Ap-
of
Circuit Courts
for certiorari
cases
petitions
denied
.where
129
urban
increasingly
The
conditions of
life have
complex
in Village
Euclid
Ambler
as this
Court noted
led,
v.
of
Realty Co., 272
365, 386-387,
U.
to a
in
corresponding
S.
crease in municipal police legislation. Recently,
two
of
ordinances,
classes
new in
municipal
character —those
relating to
those
zoning
relating
to motor vehicles—
had
of
controversies.
subject
many
become
constitutionality
can
de
rarely
these ordinances
!
general
termined
rule. The
simply by
a
Court
applying
must consider the effect
the ordinance as
As
applied.
validity
depends
ordinance
particular
ordinarily
upon special facts,15 these
be examined
must
whenever
Milling
Dahnke-Walker
Co. v.
jurisdiction.
is
there
Bondurant,
Though
U. S.
no burdensome fac
involved,
tual
inquiry
controversy may
often be of
trifling
in the case at bar.
significance,
Thus, persua
as
sive
have
why Congress
reasons existed
should
denied,
error in cases
review
writ of
which involved only
municipal
ordinance.
from
If, by striking out
the Judicial Code the
§
or an
exercised under any
clause
State,”
not exclude from
Congress
did
review
writ
error
involving the ordinances and
orders,
failed
wholly
to accomplish
commission
what,
.in view
the statements made to it in regard to the
'peals
zoning
had
small
ordinances of
suburban
held
districts to be
applied
respondents.
to the
unconstitutional
If ordinances
are
brought
these cases could have
statutes
been
by'writ,
here
Fox,
In Gorieb v.
240(b).
error
judg
U. S.
sustaining
zoning
of a state court
ment
ordinance was
reviewed
Township Maplewood
Compare
v. Margolis, certiorari.
City
Cambridge,
certiorari'denied;
Nectow
p.
post,
respect
dependence
has
zoning
noted this
with
both to
Co.,
Realty
regulations.
See Euclid Ambler
bus
ordinances
Schappi Bus Line,
Hammond 164, 170,
*25
have been
amendment,16 must be deemed to
of the
effect
re-
That
amending
is,
in so
the section.
purpose
cases,
obliga-
many
of the burden
Court,
lieve this
had
these,
than
there
been con-
tory
For,
review.
other
ef-
Court,
years
in the nine
between the
by this
sidered
of the Jurisdictional Acts of 1916
fective dates
in-
cases
eight
not more than
opinions,
and decided with
under a
of an
exercised
volving
validity
authority
other
On the
hand
or under the United States.17
sustaining
in which
of state courts
forty
judgments
cases
re-
orders had been
ordinances or commission
municipal
all
had entailed a burden out of
error,
on writ of
viewed
The evidence introduced
to their number.
proportion
either
validity
involving
the facts
establish
both,
often
municipal
of orders or of
ordinances is
volum-
Hearing
of the
See
before
Subcommittee
on
Committee
Judiciary
Senate,
Sess.,
States
68th
1st
Cong.,
United
on
Judiciary
2060, p. 35; Hearing
on
before the Committee
S.
Representatives,
Cong.,
S'ess.,
p.
House of
68th
2d
H. R.
only
opinions
written,,
In
cases in which
three
were
aside from
involving
orders,
ordinances and commission
does
those'
jurisdiction appear to have been exercised under the clause in the
allowing
error in
of 1916
a writ of
cases where the
of an
Act
authority
challenged
has
exercised under a State
been
and sustained:
88;
Griffith,
32;
Richardson, 263
S.
Love v.
U.
S.
Schwab
U.
Appleby
Possibly,
Delaney, 271
under the view an
U. S.
Court,.even
such state action as was involved in these
nounced by
In'
cases amounts to
a statute of a state.”
five cases
on the clause
a writ
error' wher
allowing
seems to have been based
exercised,
e
of an
under the
has
United States
617;
Express
Caldwell, 244
been denied: American
Co. v.
U. S.
135;
Ry.
Dakota,
Northern
Co. v. North
Dakota
Pacific
163;
Telephone
Dakota, 250
Davis v
Central
Co. v. South
Co.,
McCarty,
Coal
Lancaster v.
131
conflicting.18
and
Condensation of the evidence
inous
federal
required,
coming
not
cases
from the lower
in
(b),
23;
75
226 U. S.
Equity
Appendix
courts. See
Rule
Asphalt
Rule 7
Barber
(2),
From the decision Weston v. City Council Charles- ton, Pet. 449, in 463-464, which Mr. Chief Justice jurisdiction Marshall rested of this Court to review judgments state courts involving upon ordinances the clause exercised under State,” passage to the of the Act of 1925, ninety-six years elapsed. During that period Court wrote in opinions a multitude of which that specific was exercised. In only two'of them has there been found any juris- statement diction could be ground sustained that a munici- pal ordinance is a a State, within the meaning 25§ of the Judiciary Act of 1789 or its later reenact- 18Thus, Telephone in Southwestern Bell Co. v. Public Service Com mission, pages the record was 685 length. In Blue Improvement Water Works & v. Co. Public Commission, Service field 262 U. S. the record extended over pages. record Ry. Northern Department v. Co. Public Works, 268 U. S. Pacific pages contained 1131 in addition to numerous Ham In exhibits. Schappi Line, mond Bus 275 U. S. and Hammond v. Farina Bus Transportation Co., Line & Court found itself compelled to remand to the District order for that court proper findings make of fact. at successive written opinions These two were
ments. Atlantic Coast Court. member of the by the same terms 548, 555; Rein Goldsboro, 232 U. S. Line R. R. Co. examination An Rock, 171, 176. man v. Little to make seems briefs the two cases of the record and made obiter and were were the statements it clear of this the jurisdiction inadvertently. No was raised 237 of the Judicial Code Court under § case; this Court could in either counsel discussed *27 force, have entertained then in legislation the not, under jurisdiction. Neither of the to the existence a doubt as City. refers to Weston Council of the Court opinion of 463-464, or to Home Insurance Charleston, Pet. Augusta, U. S. Council City Co. v. 121 —the the consideration, had settled that which, on full cases relating clause to the jurisdiction was the of our basis v. authority. an Neither refers to McLean Co., R. 38, 47-48, & Rio Grande R. 203 U. S. Denver Heyl, 227 to Smoot 522—the which obviously There ruling. was recently had confirmed to overrule these no intention cases. in only authority support
The cited of the statement cases, Bruffy, Rock in the Goldsboro and Little Williams no for furnishes basis them. That case Congress an act involved Confederate States—(cid:127) legislation obviously would be body whose described “ speech, It- in statutes.” was conceded that common “a question statute.” The act was particular . “ any it was a statute State.” whether Court question sole discussed was That the act of the Con whether “ any gress was an appears of the Confederate act State States Supplemental file on in office of the Clerk. See from briefs Error, pp. 10-11; for the in Totten Plaintiff Brief of Enoch Brief of p. 3; Henry Defendant Brief of William Error, Garnett W. curiae, pp. Maury, 4, 5, as amicus was thus stated A. “ brief; can p. Upon ground, then, Mr. his what Maury force of given held that since the enactment been had of that Virginia, law in it was as action State much the legis- ifas it had been an authorized originally passed by In so the enact- body. Virginia lative being adopted it had had clearly ment did not lose the which quality “ from It being that of statute.” inception, namely, “Any inwas this that Mr. Justice Field said: connection enactment, from which a originating, whatever source gives of law is a force within the cited relating clause used with language court.” This legislative reference to the irregular body acts of whose commonly enactments would be described as statutes'!” It regular had no to the acts of a legislative reference body enactments whose would never characterized as statutes, ordinary speech. That Mr. Field Justice it, would not so have For in term applied clear. preceding that which Williams v. Bruffy was he decided, had the decision in In- participated Home Augusta, surance Council City 116, 121, Co. plainly which the Court had indicated that a munici- pal ordinance was not a statute of State.” *28 The dicta our concerning in Atlantic Coast Goldsboro, Line R.R. Co. v. and Reinman v. Little of, under, maintained that a statute exercised the Virginia hostile of the de Government was statute of or' author facto ity in the the law sense of which is Court’s commission (5. cognizance appeals from How., to take the state tribunals? Jones).” The case cited 5 343, 376, Scott vs. Mr. Maury, How. unorganized political body held statutes that of an not were stat-. “ ” Judiciary 25 utes of a State within of the Act, .the § In although body Iowa, a later became State. Miners Bank v. “ 12 was 1, a statute held not to be a statute How. a territorial ” though Territory 25; had since State within become State. § ip Surget, 594, 603, language 604, 97 Ford v. U. S. Stevens v. also Griffith, point makes clear exact 48, 50, 111 U. S. Bruffy.
decision Williams v.
134
Bock,
dealing
have never been
later case
repeated
with
ordinances,
where the
municipal
even
decisions.in
two cases
been relied
Some care seems to have
upon.
have
been taken
a municipal
not
repeat
expression
Thomas
ordinance
Cusack
a State. See
Chicago,
242
King,
Zucht
529;
S.
v.
260
Co. v.
526,
U.
“
U.
To
174,
phrase
S.
construe the
statute of any
as applying
municipal
to a
ordinance
disregards
common
use of the
appropriate
words;
ignores
de-
nearly
governed
juris-
cisions which
have
century
our
diction to
judgments
sustaining
review
state courts
validity of
ordinances;
gen-
such
and tends to defeat
eral
of the Act
1925
relieve this
purpose
right
.limiting further
the absolute
to a review
it.”
Fidelity
Co.,
Moore
Deposit
&
272
Smith
317,
v.
U.
321;
S.
Wilson,
v.
388,
390.20 It
S.
completely frustrates
purpose which-Congress
must
particular
have had in
striking
§
from 237 the clause
an authority
exercised
21
any state.”
trival
of the
character
substan-
given
weight
purpose
construing
to this
earlier acts
20 Much
Compare
v. Roff,
McLish
reducing
jurisdiction.
our
661,
141 U. S.
Caldwell,
Robinson
666;
359, 362;
165
Sugar
American
Re
v.
fining
Orleans,
Co. v.
277,
181
281,
construing
U. S.
all
the Cir
New
Appeals Act,
1891;
cuit Court of
March 3,
c.
26 Stat.
American Security &
Columbia,
Trust Co. District
v.
224 U. S.
495, construing
Code;
250 of the Judicial
Inter-Island Steam
§
Ltd.,
Navigation Co.,
Ward,
1, construing
v.
242
U. S.
246
Code,
Judicial
January
as amended
.the Act of
c.
38
"
'
-
Stat.
the effective
of -1925,.judgments
Since
date
Act
of state
sustaining
courts
ordinances have been re
Beery
Houghton,
viewed
writ of error
in a number of cases.
v.
(Per Curiam);
Ohio
rel.
Deckebach,
ex
Clarke v.
SULTAN PARTMENT OF LABOR AND OF INDUSTRIES THE STATE OF WASHINGTON et al. COMPANY v. SAME. MILL
ECLIPSE Argued May 274 and 275. March Nos. 1928 Decided 1928. question jurisdiction counsel Court, or call to our atten significance tion the of the amendment of 237 made the Act of It is well settled that the exercise of under such is precedent circumstances not to be deemed when the finally brought before us for determination. United More, States v. Cranch, 159, 172; States, Snow v. United 346, 354; Cross 118 U. S. Burke, Knott, S. Louisville Trust Co. v. 225, 236; Lane, Arant v.