1. A decision of a state court applying and enforcing a state
statute of general scope against a particular transaction as to
which there was not merely a claim of a right or immunity under the
Constitution, but a distinct and timely insistence that, if so
applied to it, the statute was unconstitutional and void,
necessarily affirms the validity of the statute when so applied,
and the judgment based thereon is therefore reviewable by writ of
error under § 237 Jud.Code, as amended by the Act of September 6,
1916. P. 257 U. S.
2. That the statute in such case is not claimed to be invalid
and for every purpose is immaterial, since a
statute may be invalid as applied to one state of facts and yet
valid as applied to another, and a litigant, moreover, can be heard
to question a statute's validity only when and insofar as it is
being, or is about to be, applied to his disadvantage. P.
257 U. S.
3. The right to review the validity of a state statute under
Jud.Code § 237 is independent of the grounds or reasons on which
the state court upholds the validity of the statute. P.
257 U. S.
4. Where the state court denied enforceability to a contract
made by a foreign corporation upon the grounds that the contract
was local in character, and that the corporation had not complied
with a statute conditioning the right of foreign corporations to do
local business, although the corporation insisted that the contract
was made in interstate commerce and that the statute, so applied,
was therefore unconstitutional, held
that the judgment was
reviewable here by writ of error. P. 257 U. S.
5. Interstate commerce is not confined to transportation from
one state to another, but comprehends all commercial intercourse
between different states and all the component parts of that
intercourse. P. 257 U. S.
6. Just as, where goods in one state are transported into
another for purposes of sale, the interstate commerce embraces
their sale after they reach their destination and while they are in
the original packages, on the same principle, where goods are
Page 257 U. S. 283
in one state for transportation to another, the commerce
includes the purchase quite as much as it does the transportation.
P. 257 U. S.
7. A corporation of one state may go into another, without
obtaining the leave or license of the latter, for all the
legitimate purposes of such commerce, and any statute of the latter
state which obstructs or lays a burden on the exercise of this
privilege is pro tanto
void under the commerce clause. P.
257 U. S.
8. A Tennessee corporation, in pursuance of its practice of
purchasing grain in Kentucky to be transported to and used in its
Tennessee mill, made a contract for the purchase of wheat, to be
delivered in Kentucky on the cars of a public carrier, intending to
forward it as soon as delivery was made. Held
transaction was in interstate commerce notwithstanding the contract
was made and to be performed in Kentucky, and that the possibility
that the purchaser might change its mind after delivery and sell
the grain in Kentucky or consign it to some other place in that
state did not affect the essential character of the transaction. P.
257 U. S.
185 Ky. 386 reversed.
Error to a judgment of the Court of Appeals of Kentucky which
affirmed a judgment of a court of first instance on a verdict
directed for the defendant in an action for damages for breach of
contract brought by the plaintiff in error.
Page 257 U. S. 286
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
This was an action to recover damages for the breach of a
contract for the sale and delivery of a crop of wheat estimated at
14,000 bushels. The plaintiff was a Tennessee corporation engaged
in operating a flour and feed mill at Union City in that state. The
defendant was a resident of Hickman, Kentucky, and extensively
engaged in farming in that vicinity. They were the parties to the
contract. It was made at Hickman, and the wheat was to be delivered
and paid for there. But the delivery was to be on board the cars of
a common carrier, and the plaintiff intended to ship the wheat to
its mill in Tennessee. A small part of the crop was delivered as
agreed, but delivery of the rest was refused, although the
plaintiff was prepared and expecting to receive and pay for it. A
payment advanced on the crop more than covered what was delivered.
At the time for delivery, wheat had come to be worth several cents
per bushel more than the price fixed by the contract. The action
was brought in a state court in Kentucky.
The principal defense interposed -- the only one which we have
occasion to notice -- was to the effect that the plaintiff had not
complied, as was the fact, with a statute of Kentucky
(Ky.Stats.1915, § 571) prescribing the conditions on which
corporations of other states might do business in that state, and
that the contract was therefore not enforceable. To this the
plaintiff replied that the only business done by it in Kentucky
consisted in purchasing
Page 257 U. S. 287
wheat and other grain in that state for immediate shipment to
its Tennessee mill, and then shipping the same there; that the
contract in question was made in the course of this business, and
with the purpose of forwarding the wheat to the mill as soon as it
was delivered on board the cars; that this transaction was in
interstate commerce, and, as to it, the statute of Kentucky whose
application was invoked by the defendant was invalid because in
conflict with the commerce clause of the Constitution of the United
The cause was tried twice. On the first trial, the plaintiff
obtained a verdict and judgment; the court ruling that the statute
could not constitutionally be applied to the transaction in
question. But the Court of Appeals of the state, while conceding
the invalidity of the statute as respects transactions in
interstate commerce, held the transaction in question was not in
such commerce, declared the statute valid and properly enforceable
as to that transaction, and reversed the judgment with a direction
for a new trial. That court proceeded on the theory that, as the
contract was made in Kentucky, related to property then in that
state, and was to be wholly performed therein, the transaction was
strictly intrastate, and not within the reach or protection of the
commerce clause of the Constitution of the United States, and this
although the wheat was to be delivered on board the cars of a
public carrier and the plaintiff intended to ship it to Tennessee
as soon at it was so delivered. Bondurant v. Dahnke-Walker
175 Ky. 774. On the second trial, a verdict for
the defendant was directed because the plaintiff had not complied
with the statute. The jury conformed to the direction, judgment was
entered on the verdict, and that judgment was affirmed by the Court
of Appeals on the authority of its former decision. 185 Ky.
The case is here on a writ of error, and our jurisdiction is
challenged. The objection is not that we are without
Page 257 U. S. 288
power to review the judgment, but that it can be reviewed only
on a writ of certiorari. The controlling statute is § 237 of the
Judicial Code, as amended by the Act of September 6, 1916, c. 448,
§ 2, 39 Stat. 726. Besides confining our power of review in cases
litigated in the state courts to those in which the decision of a
federal question is involved, this jurisdictional section provides
that the review in cases falling within certain classes may be on
writ of error, and in others on writ of certiorari, the
distinguishing or dividing line being drawn according to the nature
of the federal question and the way in which the state court
decides it. Some cases may fall on both sides of the line. But with
this we are not now concerned. Among those in which the review may
be on writ of error, the section includes
"any suit . . . where is drawn in question the validity of a
statute of, or an authority exercised under any state, on the
ground of their being repugnant to the Constitution, treaties, or
laws of the United States, and the decision is in favor of their
Among those in which the review may be on writ of certiorari
"any cause . . . where is drawn in question the validity of a
statute of, or an authority exercised under any state, on the
ground of their being repugnant to the Constitution, treaties, or
laws of the United States, and the decision is against their
"any cause . . . where any title, right, privilege, or immunity
is claimed under the Constitution, or any treaty or statute of, or
commission held or authority exercised under the United States, and
the decision is either in favor of or against the title, right,
privilege or immunity especially set up or claimed, by either
party, under such Constitution, treaty, statute, commission, or
In the state court, the plaintiff did not simply claim a right
or immunity under the Constitution of the United
Page 257 U. S. 289
States, but distinctly insisted that, as to the transaction in
question, the Kentucky statute was void, and therefore
unenforceable, because in conflict with the commerce clause of the
Constitution. The court did not accede to the insistence, but
applied and enforced the statute. Of course, that was an
affirmation of its validity when so applied. Bridge
Proprietors v. Hoboken Co.,
1 Wall. 116,
68 U. S. 144
McCullough v. Virginia, 172 U. S. 102
172 U. S.
-117; General Oil Co. v. Crain, 209 U.
, 209 U. S. 228
Corn Products Refining Co. v. Eddy, 249 U.
, 249 U. S. 432
And see Western Union Telegraph Co. v. Kansas,
216 U. S. 1
216 U. S. 3
216 U. S. 27
case is therefore of the class described in the first of the
provisions which we have quoted from the jurisdictional section.
That the statute was not claimed to be invalid in toto
for every purpose does not matter. A statute may be invalid as
applied to one state of facts, and yet valid as applied to another.
Poindexter v. Greenhow, 114 U. S. 270
114 U. S. 295
St. Louis, Iron Mountain & Southern Ry. Co. v. Wynne,
224 U. S. 354
Kansas City Southern Ry. Co. v. Anderson, 233 U.
. Besides, a litigant can be heard to question a
statute's validity only when and so far as it is being or is about
to be applied to his disadvantage. Yazoo & Mississippi R.
Co. v. Jackson Vinegar Co., 226 U. S. 217
Jeffrey Manufacturing Co. v. Blagg, 235 U.
, 235 U. S. 576
Neither does it matter on what ground the court upheld and enforced
the statute. The provisions quoted from the jurisdictional section
show that, in cases where the validity of a state statute is drawn
in question because of the alleged repugnance to the Constitution,
the mode of review depends on the way in which the state court
resolves the question. If it be resolved in favor of the validity
of the statute, the review may be on writ of error, and if it be
resolved against the validity, the review can only be on writ of
certiorari. The provisions take no account of the particular
grounds or reasons on which the decision is put.
Page 257 U. S. 290
It is loosely said in one of the briefs for the plaintiff that
the "sole question for decision" is whether the contract was a part
of interstate commerce; but we attach no importance to this,
because it not only is said in the same brief that the
"maintained in the state court, and it maintains here, that the
Kentucky statute, as construed and applied in this case by the
state court, is unconstitutional under the commerce clause,"
but much of that brief and of another is devoted to an effort to
show the invalidity of the statute in that regard.
Our conclusion on the jurisdictional question is that, as the
state court applied and enforced to the plaintiff's disadvantage a
state statute which the plaintiff seasonably insisted as so applied
and enforced was repugnant to the Constitution and void, the case
is rightly here on writ of error. Like rulings on like grounds will
be found in Eureka Pipe Line Co. v. Hallanan, ante,
257 U. S. 265
United Fuel Gas Co. v. Hallanan, ante, 257 U. S. 277
The commerce clause of the Constitution, Art. I, § 8, cl. 3,
expressly commits to Congress and impliedly withholds from the
several states the power to regulate commerce among the latter.
Such commerce is not confined to transportation from one state to
another, but comprehends all commercial intercourse between
different states and all the component parts of that intercourse.
Where goods in one state are transported into another for purposes
of sale, the commerce does not end with the transportation, but
embraces as well the sale of the goods after they reach their
destination and while they are in the original packages.
12 Wheat. 419, 25 U. S.
-447; American Steel & Wire Co. v.
Speed, 192 U. S. 500
192 U. S. 519
On the same principle, where goods are purchased in one state for
transportation to another, the commerce includes the purchase quite
as much as it does the transportation. American Express Co. v.
Iowa, 196 U. S. 133
196 U. S. 143
This has been recognized in many decisions
Page 257 U. S. 291
construing the commerce clause. Thus, it was said in Welton
v. Missouri, 91 U. S. 275
91 U. S.
"'Commerce' is a term of the largest import. It comprehends
intercourse for the purposes of trade in any and all its forms,
including the transportation, purchase, sale, and exchange of
In Kidd v. Pearson, 128 U. S. 1
128 U. S. 20
was tersely said: "Buying and selling and the transportation
incidental thereto constitute commerce." In United States v. E.
C. Knight Co., 156 U. S. 1
156 U. S. 13
"contracts to buy, sell, or exchange goods to be transported among
the several states" were declared "part of interstate trade or
commerce." And in Addyston Pipe & Steel Co. v. United
States, 175 U. S. 211
175 U. S. 241
the court referred to the prior decisions as establishing that
"interstate commerce consists of intercourse and traffic between
the citizens or inhabitants of different states, and includes not
only the transportation of persons and property and the navigation
of public waters for that purpose, but also the purchase, sale, and
exchange of commodities."
In no case has the court made any distinction between buying and
selling or between buying for transportation to another state and
transporting for sale in another state. Quite to the contrary, the
import of the decisions has been that, if the transportation was
incidental to buying or selling, it was not material whether it
came first or last.
A corporation of one state may go into another, without
obtaining the leave or license of the latter, for all the
legitimate purposes of such commerce, and any statute of the latter
state which obstructs or lays a burden on the exercise of this
privilege is void under the commerce clause. Crutcher v.
Kentucky, 141 U. S. 47
141 U. S. 57
Western Union Telegraph Co. v. Kansas, 216 U. S.
, 216 U. S. 27
International Text-Book Co. v. Pigg, 217 U. S.
, 217 U. S. 112
Sioux Remedy Co. v. Cope, 235 U.
There is no controversy about the facts bearing on the character
of the transaction in question. It had been the
Page 257 U. S. 292
practice of the plaintiff to go into Kentucky to purchase grain
to be transported to and used in its mill in Tennessee. On
different occasions, it had purchased from the defendant -- at one
time, 13,000 bushels of corn. This contract was made in continuance
of that practice, the plaintiff intending to forward the grain to
its mill as soon as the delivery was made. In keeping with that
purpose, the delivery was to be on board the cars of a public
carrier. Applying to these facts the principles before stated, we
think the transaction was in interstate commerce. The state court,
stressing the fact that the contract was made in Kentucky and was
to be performed there, put aside the further facts that the
delivery was to be on board the cars and that the plaintiff, in
continuance of its prior practice, was purchasing the grain for
shipment to its mill in Tennessee. We think the facts so neglected
had a material bearing, and should have been considered. They
showed that what otherwise seemed an intrastate transaction was a
part of interstate commerce. See Swift & Co. v. United
States, 196 U. S. 375
196 U. S. 398
Reading Co. v. United States, 226 U.
, 226 U. S. 367
Pennsylvania R. Co. v. Clark Bros. Coal Mining Co.,
U.S. 238 U. S. 456
Eureka Pipe Line Co v. Hallanan, supra.
The state court
also attached some importance to the fact that, after the grain was
delivered on the cars, the plaintiff might have changed its mind
and have sold the grain at the place of delivery or have shipped it
to another point in Kentucky. No doubt this was possible, but it
also was improbable. With equal basis it could be said that a
shipment of merchandise billed to a point beyond the state of its
origin might be halted by the shipper in the exercise of the right
of stoppage in transitu
before it got out of that state.
The essential character of the transaction as otherwise fixed is
not changed by a mere possibility of that sort. See United Fuel
Gas Co. v. Hallanan, supra.
For these reasons, we are of opinion that the transaction was a
part of interstate commerce, in which the plaintiff
Page 257 U. S. 293
lawfully could engage without any permission from the State of
Kentucky, and that the statute in question, which concededly
imposed burdensome conditions, was as to that transaction invalid
because repugnant to the commerce clause.
MR. JUSTICE BRANDEIS, dissenting.
The writ of error should, in my opinion, be dismissed. The
obstacle to our assuming jurisdiction is not procedural, as it is
in those cases where a plaintiff fails because the claim was not
made seasonably or in appropriate form. [Footnote 1
] Here, the obstacle is the nature of the
constitutional question sought to be reviewed. It involves a state
statute. But the validity of the statute is not actually drawn in
question. Only the propriety of the application or use of the
statute is questioned. Since the Act of September 6, 1916, c. 448,
§ 2, 39 Stat. 726, such questions are not reviewable in this Court
as of right. They may now be reviewed only in the Court's
discretion, and exercise of the discretion must be invoked by a
petition for a writ of certiorari.
This Court has now, as it had before that act, jurisdiction
under § 237 of the Judicial Code to review a final judgment of the
highest court of a state whenever a right under the federal
Constitution duly claimed has been denied in applying a state
statute. And in no case involving a state statute can jurisdiction
attach unless the statute has been applied. For, unless it was
applied, there could not have been an invasion of the party's
constitutional right; and, unless there was such invasion, the
Page 257 U. S. 294
question presented, whatever its nature, would be moot. But the
Act of 1916 made the nature of the constitutional question raised
in applying the statute a matter of importance. If the question is
a denial of the power of the legislature to enact the statute as
construed, a review may be had as of right. If the question
concerns merely the propriety of the particular use of the statute
or of the manner of applying or administering it the review may be
had only in this Court's discretion. The classification thus
introduced rests upon broad considerations of policy. The steady
increase of the business of this Court had made it necessary to
limit the appellate jurisdiction in cases arising under § 237. To
this end, Congress determined in 1916 that even cases involving
constitutional questions should be reviewed here only where the
public interest appeared to demand it. Congress left parties a
review as of right where the validity of a state statute had been
drawn in question, because the decision of such a question is
usually a matter of general interest. But whether a valid state
statute has in a particular case been so used as to violate a
constitutional guaranty is ordinarily a matter of merely private
interest. Hence, Congress provided that, where the validity of the
statute is not assailed, the denial of a claim that in applying it
a right, privilege, or immunity had been violated should not be
reviewed unless this Court, in its discretion, to be exercised upon
petition for a writ of certiorari, should direct the review -- that
is, Congress treated a right, privilege, or immunity claimed to
have been violated by the courts' erroneously applying a
confessedly valid statute to the particular facts of a case just as
it treated a claim that the right, privilege, or immunity had been
violated by a decision erroneous in some other respect.
In considering whether, in this case, the validity of the state
statute was drawn in question, it is necessary to bear in mind
that, in every case involving a statute, the state
Page 257 U. S. 295
court must perform (aside from the consideration of any
constitutional questions) two functions essentially different.
First, the court must construe the statute -- that is, determine
its meaning and scope. Then it must apply the statute, as so
construed, to the facts of the case. [Footnote 2
] In this case, the construction of the statute
was never in controversy. It had been settled by earlier decisions
that the statute referred only to corporations when transacting
business in intrastate commerce. Here, the only controversy
concerned the character of the particular transaction to which
defendant sought to have the statute applied. Was it interstate
commerce? If so, the transaction was not within the scope of the
statute. To decide that controversy, two determinations had to be
made. One was of fact: whether the wheat was sold and bought for
shipment to Tennessee. The other was of law: whether the fact that
the wheat was so sold and bought makes the transaction one in
interstate commerce. Did that controversy over the character of the
commerce draw in question the validity of the statute, or did it
draw in question merely the propriety -- that is, the
constitutionality -- of its application? What the character of the
controversy was must be decided upon the record presented here.
The validity of a statute, as was said in Baltimore &
Potomac R. Co. v. Hopkins, 130 U. S. 210
130 U. S. 224
is drawn in question whenever the power to enact it "as it is, by
its terms, or is made to read by construction, is fairly open to
denial and denied." The power to enact
Page 257 U. S. 296
§ 571, Kentucky Statutes, as construed by the highest court of
the state, was not fairly open to denial, for the statute was
construed as affecting only intrastate transactions of foreign
corporations. See International Text-Book Co. v. Pigg,
217 U. S. 91
Hooper v. California, 155 U. S. 648
writ of error which rested solely upon the challenge of the statute
so construed would have presented no substantial claim and must
have been dismissed as frivolous. Equitable Life Assur. Soc. v.
Brown, 187 U. S. 308
187 U. S. 311
Sugarman v. United States, 249 U.
, 249 U. S. 184
Compare Blumenstock Bros. v. Curtis Publishing Co.,
252 U. S. 436
252 U. S. 441
Nor was the power to enact § 571 as construed actually denied. The
question decided below and presented for review here is merely
whether this valid statute has been so used -- not construed -- as
to deny to the plaintiff a privilege or immunity guaranteed by the
That the character of the commerce -- and not the validity of
the statute -- was the only question actually in controversy and is
the only question which the plaintiff actually seeks to present for
review appears from the following statement in its brief filed in
this Court, as well as from the supporting argument:
"The sole question for decision by this Court is whether the
contract sued on is a part of interstate commerce or purely a
transaction in intrastate commerce. If this Court should conclude
that the contract is any part of interstate commerce, the judgment
of the Kentucky Court of Appeals must be reversed; otherwise it
should be affirmed."
A party's conception or characterization of the question
presented by the record is, of course, not conclusive of his right
to a review. The right is determined by the record. But, in this
case, the record confirms the plaintiff's conception of the
question submitted for review. The judgment of the Court of Appeals
brought before us is that of October 17, 1919, which affirmed the
judgment below entered
Page 257 U. S. 297
after the second trial before a jury. In 1917, the Court of
Appeals, in delivering its first opinion which directed the second
trial (Bondurant v. Dahnke-Walker Milling Co.,
"This court has heretofore held that § 571, supra,
not have any application to a foreign corporation which is engaged
strictly in interstate commerce with citizens of this state. . . .
Hence, if the contract sought to be enforced was an interstate
commerce transaction, the failure to comply with § 571,
would not affect the right of appellee to sue and
recover upon its contract, but, if it was an intrastate business,
the failure to have complied with § 571, supra,
to appellee's right of recovery. . . . So the question for decision
is: was the contract between appellant and appellee one which is
protected by Article I, chapter 8, paragraph 3 of the federal
Constitution, from regulation by the State of Kentucky, as being a
transaction in interstate commerce?"
Since 1903, it had been the settled law of the state, as then
declared by its highest court, that § 571 did not affect
transactions in interstate commerce, Commonwealth v. Hogan,
McMorrow & Tieke Co.,
74 S.W. 737. [Footnote 3
] Thus, before this action was begun, it
was the settled law that such transactions of foreign corporations
were not within the scope of the statute. In 1915, after this
action was begun, but before the first trial, that rule was again
applied in Louisville Trust Co. v. Bayer Co.,
166 Ky. 744,
746. When, therefore, this case was before the circuit court at the
second trial and when it was before the Court of Appeals for the
second time, there clearly was no actual controversy over the
validity of the statute. It
Page 257 U. S. 298
is true that plaintiff had used in pleading language which
imported not only a claim of immunity because the transaction was
interstate commerce, but also an assertion that § 571, if construed
so as to affect it, was invalid. But a review by this Court as of
right cannot be acquired by inaccurately describing, or by
disguising, the nature of the constitutional claim actually made.
Nor could there have been a conscious purpose to do this when the
reply was filed. In 1915, the exact nature of the claim under the
Constitution was not material. At that time, the denial of any
claim of constitutional right, whatever its nature, still gave the
party a review in this Court as of right. It was the Act of
September 6, 1916, which made the division of cases involving
constitutional questions into two classes a matter of
If jurisdiction upon writ of error can be obtained by the mere
claim in words that a state statute is invalid if so construed as
to "apply" to a given state of facts, the right to a review will
depend, in large classes of cases, not upon the nature of the
constitutional question involved, but upon the skill of counsel.
The result would be particularly regrettable, because the decision
of such cases often depends not upon the determination of important
questions of law (which should in the main engage the attention of
this Court), but upon the appreciation of evidence frequently
voluminous. Thus, in proceedings under state workmen's compensation
acts or state employers' liability acts, the question whether a
carrier is liable depends often upon the question whether, at the
time of the accident, the employee was engaged in interstate or in
intrastate commerce. Since the Act of September 6, 1916, certiorari
is the proper means of reviewing a judgment involving that
question. Southern Pacific Co. v. Industrial Commission,
251 U. S. 259
the rule now insisted upon obtains, the carrier could in every such
case secure a review on writ of error by simply claiming
Page 257 U. S. 299
that the state statute is invalid under the commerce clause if
construed so as to apply to the special facts of the case. Yet it
was preeminently the decision of the questions like these from
which Congress sought to relieve this Court by the act of September
6, 1916. [Footnote 4
in cases involving state taxation, the validity of the tax often
depends upon the question whether the specific thing taxed was
property within or property without the taxing state -- a question
which, as held in Dana v. Dana, 250 U.
, and Anderson v. Durr, 257 U. S.
, can be reviewed here only on writ of certiorari. If
the rule now insisted upon should prevail, jurisdiction in such
cases could be secured on writ of error by the simple device of
claiming that the taxing statute is invalid under the Fourteenth
Amendment if construed so as to apply to the specific property
involved. So, in suits in state courts against foreign
corporations, the question whether there is jurisdiction depends
often upon the question whether the corporation was doing business
within the state and had expressly or impliedly consented to be
used there. [Footnote 5
correctness of the decision of a state court of this question has
been held to be reviewable here only upon certiorari.
Philadelphia & Reading Coal & Iron Co. v. Gilbert,
245 U. S. 162
But, if the rule now insisted upon
Page 257 U. S. 300
should prevail, jurisdiction on writ of error may be secured by
simply making the claim that the state statute is invalid under the
Fourteenth Amendment if construed so as to apply to the facts of
Plaintiff relies upon a number of cases, assumed to be similar,
in which, after the Act of September 6, 1916, jurisdiction was
(mainly without discussion) taken on writ of error. They are not in
point. In some of them, orders of railroad commissions were
challenged as violating the Constitution. [Footnote 6
] Such an order, unlike decisions of courts,
being legislative in its nature and made by an instrumentality of
the state, is a state law within the meaning of the Constitution of
the United States and the laws of Congress regulating our
jurisdiction. Lake Erie & Western R. Co. v. Public
Utilities Commission, 249 U. S. 422
249 U. S. 424
In each of these cases, therefore, attacking the validity of the
order was drawing in question the validity of a law. In others, the
validity of state statutes as construed was actually drawn in
question. [Footnote 7
McGinis v. California, 247 U. S. 91
Page 257 U. S. 301
247 U. S. 95
involved, like the case at bar, the determination whether the
transaction in question was one in interstate or foreign commerce.
Although they did not draw in question the validity of any statute,
this Court properly entertained the writ of error in each of those
cases, because, as the original records disclose, the judgment was
of a date so early as not to come within the Act of September 6,
1916. It is true that § 237 of the Judicial Code, which reenacted §
709 of the Revised Statutes, and § 2 of the Act of February 5,
1967, c. 28, 14 Stat. 385, 386, used, in defining the jurisdiction
of this Court, the phrase "where is drawn in question the validity
of a statute." But under none of these acts could there be occasion
for deciding the question here under discussion, for each contained
also the more comprehensive provision giving jurisdiction where any
right, title, privilege, or immunity claimed under the Constitution
had been denied. And, under § 25 of the Judiciary Act of September
24, 1789, c. 20, 1 Stat. 73, 85, which embodied the law prior to
1867, the conditions were substantially the same. Hence, little
help can be derived from the consideration of cases involving
judgments entered before the Act of September 9, 1916, became
effective. [Footnote 8
Page 257 U. S. 302
Nor can we be aided in construing the Act of September 6, 1916,
by considering cases arising under § 238 of the Judicial Code,
reenacting § 5 of the Act of March 3, 1891, c. 517, 26 Stat. 826,
827, as amended. For the third clause thereof empowers this Court
to review by writ of error or appeal decisions of United States
district courts "in any case that involves the construction or
application of the Constitution of the United States." This
comprehensive provision renders immaterial in this connection the
nature of the constitutional question. The specification in the
fourth clause of cases "in which the constitutionality of any law
of the United States . . . is drawn in question," and in the fifth
clause of cases, "in which the Constitution or law of a state is
claimed to be in contravention of the Constitution of the United
States," adds nothing. Nor can we derive aid from cases involving
review by this Court of cases coming from the circuit Court of
Appeals under § 241 of the Judicial Code, reenacting § 6 of the
act, 26 Stat. 826, 828. For, under it, the right of review where
available exists regardless of the nature of the constitutional
But cases coming from the District of Columbia and from the
territories in which a review by this Court was sought (under the
Act of March 3, 1885, c. 355, 23 Stat. 443, and under § 250 of the
Judicial Code) on the ground that the validity of an authority or
of a statute was drawn in question, are persuasive as to the
meaning of the phrase drawing in question the validity of a
statute, as used in the Act of 1916. And they were recognized in
Ireland v. Woods, 246 U. S. 323
246 U. S. 329
as controlling. Thus, United States ex rel. Champion Lumber Co.
v. Fisher, 227 U. S. 445
United States ex rel. Foreman v. Meyer, 227 U.
, hold that the validity of an authority is not
drawn in question where the controversy is confined to determining
whether the facts upon which a person can
Page 257 U. S. 303
exercise that authority do or do not exist, and the writs of
error were dismissed because the validity was not "drawn in
question" in the sense in which that phrase is used in the statute;
that is, brought forward or made a ground of decision. [Footnote 9
It is, of course, permissible to make the claim that a statute
is invalid and also that, as administered or applied, it violates a
right or immunity under the Constitution. In such a case, the writ
of error is clearly appropriate. But, in the case at bar, there
never has been a real claim that the statute as construed by the
highest court of Kentucky is invalid. The actual claim was and is
that a confessedly valid statute was misapplied, and thereby a
constitutional guaranty was violated. A review as of right is not
to be obtained by misdescribing the question in controversy. When
Congress declared that there should be a review as of right only
where the validity of the statute was drawn in question, it did not
provide for securing the right by the use of a form of words -- a
potent formula which should operate as an "open sesame." It was
dealing with substance. It legislated to relieve an overburdened
See Jett Bros. Co. v. Carrollton, 252 U. S.
, 252 U. S. 6
Mergenthaler Linotype Co. v. Davis, 251 U.
, 251 U. S. 258
Godchaux Co. v. Estopinal, 251 U.
The word "apply" is used in connection with statutes in two
senses. When construing a statute, in describing the class of
persons, things or functions which are within its scope; as that
the statute does not "apply" to transactions in interstate state
commerce. When discussing the use made of a statute, in referring
to the process by which the statute is made operative; as where the
jury is told to "apply" the statute of limitation if they find that
the cause of action arose before a given date. In this opinion, it
is used in the latter sense.
See also Ryman Steamboat Line Co. v. Commonwealth,
Ky. 253; Commonwealth v. Chattanooga Impl. & Mfg. Co.,
126 Ky. 636; Commonwealth v. Eclipse Hay Press Co.,
S.W. 224; Three states Buggy & Implement Co. v.
105 S.W. 971.
Report of Judiciary Committee, House Doc. No. 794,
64th Cong. 1st Sess. House Rep. vol. 3. Of the cases on the docket
for the preceding term of this Court, 37 presented the question
whether the employee was engaged in interstate or intrastate
commerce. See New York Central R. Co. v. Winfield,
244 U. S. 147
244 U. S. 168
note 1; St. Louis, San Francisco & Texas Ry. Co. v.
Seale, 229 U. S. 156
Philadelphia & Reading Ry. Co. v. Hancock,
253 U. S. 284
Philadelphia & Reading Ry. Co. v. Di Donato,
256 U. S. 327
Philadelphia & Reading Ry. Co. v. Polk, 256 U.
See, e.g., Philadelphia & Reading Ry. Co. v.
McKibbin, 243 U. S. 264
People's Tobacco Co. v. American Tobacco Co., 246 U. S.
, and Chipman, Limited v. Jeffrey Co.,
251 U. S. 373
illustrating the issues involved.
Union P. R. Co. v. Public Service Commission,
248 U. S. 67
Lake Erie & W. R. Co. v. Public Utilities Commission,
249 U. S. 422
Chicago & N.W. R. Co. v. Ochs, 249 U.
; Pennsylvania R. Co. v. Public Service
Commission, 250 U. S. 566
St. Louis & S. F. Ry. Co. v. Public Service
Commission, 254 U. S. 535
Union Tank Line Co. v. Wright, 249 U.
; Corn Products Refining Co. v. Eddy,
249 U. S. 427
Chalker v. Birmingham & N.W. Ry. Co., 249 U.
; New Orleans & N.E. R. Co. v.
Scarlet, 249 U. S. 528
Yazoo & M. v. R. Co. v. Mullins, 249 U.
; Kenney v. Supreme Lodge, 252 U.
; Royster Guano Co. v. Virginia,
253 U. S. 412
Missouri P. R. Co. v. Ault, 256 U.
, and Merchants' Nat. Bank v. Richmond,
256 U. S. 635
Eureka Pipe Line Co. v. Hallanan, ante, 257 U. S. 265
and United Fuel Gas Co. v. Hallanan, ante, 257 U. S. 277
was assumed (in my opinion erroneously) that the situation
presented was similar in this respect to that in Merchants'
Nat. Bank v. Richmond, supra.
Thus, comprehensive constitutional claims were made the basis of
the writ of error in Coe. v. Errol, 116 U.
, 116 U. S. 520
and in Kelley v. Rhoads, 188 U. S. 1
188 U. S. 4
presented the question whether the property taxed was in interstate
commerce, and hence exempt from taxation under a general law, and
in Vicksburg, Shreveport & Pacific R. Co. v. Dennis,
116 U. S. 665
116 U. S. 667
which presented the question whether the charter of a railroad
granted tax exemption so that a later general tax law, if applied
to it, would impair its contract rights, and in Delaware,
Lackawanna & Western R. Co. v. Pennsylvania, 198 U.
, 198 U. S. 352
which presented the question whether the tax appraisal for the
purpose of fixing the value of the capital stock could include
tangible personal property permanently located outside the state.
original records.) Compare 47 U.
6 How. 301, 47 U. S.
Compare also Snow v. United States, 118 U.
, 118 U. S. 353
Baltimore & Potomac R. Co. v. Hopkins, 130 U.
, District of Columbia v. Gannon,
130 U. S. 227
130 U. S. 229
United States v. Lynch, 137 U. S. 280
Ferry v. King Co., 141 U. S. 668
South Carolina v. Seymour, 153 U.
, Linford v. Ellison, 155 U.
, and Taylor v. Taft, 203 U.
, where the validity of an authority or of a
statute was held not to have been drawn in question, with
Clayton v. Utah Territory, 132 U. S. 632
Clough v. Curtis, 134 U. S. 361
134 U. S. 369
Steinmetz v. Allen, 192 U. S. 543
McLean v. Denver & Rio Grande R. Co., 203 U. S.
, 203 U. S. 47
and Smoot v. Heyl, 227 U. S. 518
227 U. S. 522
where such was held to have been drawn in question.