1. This Court has power to issue a writ of mandamus to compel a
lower federal court to allow an appeal to this Court, but will deny
leave to file the petition when a right to such an appeal clearly
does not exist. P. 271 U. S.
2. Under Jud.Code, § 238, as amended by the Jurisdictional Act
of February 13, 1925, a decree of the district court is appealable
directly to this Court on constitutional grounds only when the case
arises under § 266 of the Code, as amended by the Jurisdictional
Act of 1925. P. 271 U. S.
3. Section 266 of the Judicial Code, as so amended, permits
direct appeals to this Court from decrees of injunction, permanent
Page 271 U. S. 462
interlocutory, but relate to suits seeking relief by
interlocutory injunction restraining the execution of order of
administrative boards, etc., upon the ground of the
unconstitutionality of the state statutes upon which they acted. P.
271 U. S.
4. A suit in the district court for a permanent injunction
against enforcement of a tax on the shares of a national bank under
a state statute enacted pursuant to Rev.Stats. § 5219, is not of
the character specified in Jud.Code, § 266, and the final decree is
therefore not appealable directly to this Court under § 238, as
amended, where the ground of the suit and the decree was not that
the state statute was unconstitutional, but that it went out of
force when § 5219 was amended by the Act of March 4, 1923, so as to
allow the state to choose between taxing national bank shares,
their dividends, or the income of the bank. P. 271 U. S.
Motion for leave to file a petition for a mandamus requiring the
judge of the District Court of the Eastern Division of the Eastern
Judicial District of Missouri to allow an appeal to this Court from
a decree permanently enjoining the petitioning state officers from
enforcing a tax on shares of a national bank. See First Nat.
Bank v. Buder,
8 F.2d 883.
MR. JUSTICE BRANDEIS delivered the opinion of the Court.
This is a motion by Buder and other taxing officers of the City
of St. Louis for leave to file in this Court a petition for a writ
of mandamus against the federal district judge of the Eastern
Division of the Eastern Judicial District of Missouri, or, in the
alternative, for a writ of certiorari to that court, and for a rule
to show cause why such writs should not issue. The purpose of the
petition is to compel the district judge to allow a direct appeal
to this Court from a final decree entered by that court on December
7, 1925, against the taxing officers in a suit
Page 271 U. S. 463
brought by the First National Bank in St. Louis for a permanent
injunction restraining the enforcement of a tax levied upon its
stockholders. First National Bank v. Buder,
The decree was entered upon a hearing before a single judge. An
interlocutory injunction had not been prayed for in the bill or
otherwise sought. The taxing officers took an appeal to the United
States Circuit Court of Appeals for the Eighth Circuit which was
allowed and is now pending. Then they applied to the district judge
for the allowance also of a direct appeal to the court, because
they were uncertain whether the appeal lay to it or to the circuit
court of appeals. The district judge refused the application, and
stated as his reasons that the appeal had been properly taken to
the circuit court of appeals, had been allowed, and was pending
there, and that this Court did not have jurisdiction of the case on
appeal. An application for allowance of the appeal was then
presented to the Justice of this Court assigned to that circuit,
and was denied. Thereupon, within three months after entry of the
decree in the district court, this motion for leave to file a
petition for a writ of mandamus was made.
That this Court has power to issue a writ of mandamus to compel
a lower federal court to allow an appeal to this Court has long
been settled. Ex parte
5 Pet.190; United
States v. Gomez,
3 Wall. 752, 70 U. S. 766
In a few instances, the writ of mandamus has issued for that
purpose. Vigo's Case,
21 Wall. 648; Ex parte Jordan, 94 U. S.
; Ex parte Railroad Co., 95 U. S.
. In other cases, where there was reason to believe
that an appeal was wrongly denied by the lower court and no other
remedy appeared to be available, this Court granted the motion for
leave to file the petition and issue a rule to show cause.
20 How. 280; Ex parte Cutting,
94 U. S. 14
it was clear that the petitioner
Page 271 U. S. 464
had another remedy, the motion for leave to file the petition
was denied. Ex parte Virginia Commissioners, 112 U.
. The motion should likewise be denied where it is
clear that the appeal does not lie, or for other reasons the relief
sought by the petition cannot be granted. Ex parte Brown,
p. 645. Compare In re Green, 141 U.
; Iowa v. Slimmer, 248 U.
. In the case at bar, we deem it clear that there
was no right to a direct appeal to this Court. We therefore deny
the motion for leave to file the petition.
In support of the claim to a direct appeal, it is contended that
the injunction complained of was granted on the ground that the
state taxing statute violates the federal Constitution. The
assignment of errors which accompanied the petition for allowance
of the appeal alleged that the district court erred also in not
holding unconstitutional a recent federal statute involved. These
contentions, if substantial, would have supplied the basis for a
direct appeal under § 238 of the Judicial Code before that section
was amended by Act Feb. 13, 1925, c 229, 43 Stat. 936, 938. But §
238 was so far changed by that Act that now there is no right to
such a direct appeal on constitutional grounds unless the case
arises under § 266 of the Judicial Code as amended by that Act.
Otherwise it must go in the first instance to the circuit court of
appeals, and may come here only for the review of that court's
The suits to which § 266 relates are those in which the relief
sought is an
"interlocutory injunction suspending or restraining the
enforcement, operation, or execution of any statute of a state by
restraining the action of any officer of such state in the
enforcement or execution of such statute, or in the enforcement or
execution of an order made by an administrative board or commission
acting under and pursuant to the statutes of such state . . . upon
the ground of the unconstitutionality of such statute."
In any such suit, the application
Page 271 U. S. 465
for an interlocutory injunction was required to be heard before
three judges, and from their decree a direct appeal lay to this
Court; but, prior to the Act of February 13, 1925, a final hearing
in the suit was had before a single judge. Compare Patterson v.
Mobile Gas Co., ante,
p. 271 U. S. 131
From his decree a direct appeal to this Court could be founded only
upon the provisions of § 238 as originally enacted. Shaffer v.
Carter, 252 U. S. 37
252 U. S. 44
Where the jurisdiction of the district court was invoked upon other
federal grounds, as well as the one attacking the constitutionality
of the state statute, an appeal might be taken to the circuit court
of appeals, with ultimate review in this Court if the case was of
the class within its jurisdiction. Lemke v. Farmers' Grain
Co., 258 U. S. 50
258 U. S. 53
remove the existing anomaly, and to prevent that which would
otherwise have resulted from the repealing provisions of the Act of
February 13, 1925, that Act further amended § 266, as amended by
Act of March 4, 1913, c. 160, 37 Stat. 1013, by adding at the end
"The requirement respecting the presence of three judges shall
also apply to the final hearing in such suit in the district court,
and a direct appeal to the Supreme Court may be taken from a final
decree granting or denying a permanent injunction in such
As so amended, § 266 also permits a direct appeal to this Court
from the final decree in those suits in which the hearing on an
application for an interlocutory injunction is required to be
before three judges.
First National Bank v. Buder, supra,
is not a case of
that character, because no state statute is assailed as being
repugnant to the federal Constitution. The tax upon the shares in
the bank was assessed as of June 1, 1923, for the year 1924. It was
assessed pursuant to a statute in force ever since 1889, which had
been incorporated as § 12775 in the Revised Statutes of Missouri of
1919. Prior to the Act of Congress of March 4, 1923, c. 267, 42
Page 271 U. S. 466
amending § 5219 of the Revised Statutes of the United States,
that statute was confessedly valid and operative. *
It was then the
only method of taxation permitted by the federal law. The Act of
1923 enlarged the scope of the state's power to tax national banks.
It authorized the state either to tax the shares of a national
bank, or to include dividends derived therefrom in taxable income
of the holder thereof, or to tax the income of the bank, and
provided that the "imposition by said state of any one of the above
three forms of taxation shall be in lieu of the others." In 1917,
Missouri enacted a law (Laws 1917, p. 524) taxing income which, so
far as here material, has remained in force without change. After
the 1923 Act of Congress, the state might, in the exercise of the
option which that Act conferred, have elected to tax national banks
by taxing the income, instead of by taxing the shares, as had
theretofore been done. The state did not by any new legislation
signify its election among the three permissible modes of taxation.
Because it had not done so, the district court held the assessment
void, and enjoined the taxing officials. Whether it erred in so
holding is the question for decision on the appeal.
The claim that the tax is void rests not upon a contention that
the state statute under which it was laid is unconstitutional, but
upon a contention that the statute is no longer in force. The state
confessedly has the same power to tax the shares that it had before
Congress enacted the 1923 amendment. The argument is that, as the
state, after 1923, had the option to tax either the shares or the
income, it must manifest its election, and has not done so.
Whether, in order to do so, it must enact new legislation depends
upon the construction of the Act of Congress. Whether, if this is
not necessary, it has manifested its election by the existing
legislation depends upon
Page 271 U. S. 467
the construction of the state statutes. But in neither of these
questions is the constitutionality of the state statutes involved,
and a substantial claim of unconstitutionality is necessary for the
application of § 266. See Louisville & Nashville R. Co. v.
Garrett, 231 U. S. 298
231 U. S. 304
The decree is thus not one from which a direct appeal lies to this
Additional objections to granting the motion for leave to file
the petition are suggested, but need not be considered.
* Section 5219 of the Revised Statutes has been further amended
by Act of March 25, 1926, c. 88, 44 Stat. 223.