1. This Court is without jurisdiction to review a decision by a
State court which is not the highest court of the State in which a
decision could be had. Jud.Code § 237(b). P.
316 U. S.
99.
2. Under the constitution of Missouri and the Rules of the State
Supreme Court, a judgment of a division of that court in case
involving a federal question is susceptible of review by the full
court sitting en banc. P.
316 U. S.
99.
This Court is without jurisdiction to review such a judgment
unless the petitioner has first applied for review of the judgment
by the full court sitting en banc.
3. Upon application to this Court for review of the judgment of
a state court, it is the petitioner's burden to show affirmatively
that this Court has jurisdiction. P.
316 U. S. 101.
348 Mo. 310, 153 S.W.2d 35, writ dismissed.
Certiorari, 314 U.S. 604, to review a judgment which affirmed a
judgment enjoining the collection of a tax.
MR. CHIEF JUSTICE STONE delivered the opinion of the Court.
Respondent brought this suit in the Circuit Court of Jackson
County, Missouri, to restrain the assessment and collection of a
tax upon its real estate. The validity of the provisions of the
state constitution and statutes under which the tax was laid was
assailed on the ground that
Page 316 U. S. 99
they violate the tax exemption provision of respondent's
charter, and therefore conflict with the contract clause of the
Constitution, Article I, § 10. The Supreme Court of Missouri
affirmed the judgment of the trial court enjoining collection of
the tax. 153 S.W.2d 35. Both courts held that the Missouri
constitution and statutes, as applied, violate respondent's charter
provisions for tax exemption, and infringe the contract clause of
the Constitution.
Cf. 75 U. S.
Rouse, 8 Wall. 439;
Washington University v. Baumann,
341 Mo. 708, 108 S.W.2d 403. We granted a writ of certiorari, 314
U.S. 604, to review the constitutional question decided by the
state court.
Upon examination of the record, it appears that the decision and
judgment brought here for review were rendered by Division One of
the Supreme Court of Missouri, which consists of four of the seven
judges of the court. It does not appear that the judgment thus
rendered has been reviewed by the Supreme Court sitting en banc, or
that petitioners have made application, as they could have done
under § 4 of the 1890 amendments to Article VI of the state
constitution, to transfer the cause to the full court for review.
The question thus arises whether we have jurisdiction under §
237(b) of the Judicial Code, which restricts our authority to
review decisions of state courts to those causes wherein a judgment
has been rendered "by the highest court of a State in which a
decision could be had."
Section 1 of the 1890 amendments to Article VI of the Missouri
constitution provides that the Supreme Court shall consist of seven
judges and "shall be divided into two divisions," one of four and
the other of three judges. It directs that a division shall sit
separately for the hearing and disposition of causes, and shall
have concurrent jurisdiction of all matters and causes in the
Supreme Court, except that Division Two shall have exclusive
cognizance
Page 316 U. S. 100
of criminal causes, and that the "judgments and decrees of
either division, as to causes and matters pending before it, shall
have the force and effect of those of the court."
But § 1 also contains a proviso that a cause pending in a
division may be transferred to the court as provided in § 4.
Section 4 reads as follows:
"When the judges of a division are equally divided in opinion in
a cause, or when a judge of a division dissents from the opinion
therein, or when a federal question is involved, the cause, on the
application of the losing party, shall be transferred to the court
for its decision. . . ."
And Rule 24 of the Rules of The Supreme Court of Missouri
authorizes the transfer by motion of a cause pursuant to the
provisions of the constitution, "from either division to Court En
Banc" "after final disposition of the cause by the division."
Under these provisions, Division One of the Supreme Court of
Missouri, sitting in the present cause, in which "a federal
question is involved," was not the last state court in which a
decision of that question could be had. Such a case is one which,
"after final disposition of the cause by the division," could, on
petitioners' application, be transferred to the full court for
review, and the decision and judgment rendered by Division One
could be set aside by the court sitting en banc. Since the
constitution of Missouri has thus provided in this class of cases
for review of the judgment of a division, the judgment here of
Division One is not that of the "highest court of a State in which
a decision could be had" within the meaning of § 237(b) of the
Judicial Code.
It was the purpose of the Judiciary Act of February 13, 1925, as
well as that of all its predecessors, that no decision of a state
court should be brought here for review either by appeal or
certiorari until the possibilities afforded by state procedure for
its review by all state tribunals have
Page 316 U. S. 101
been exhausted.
Fisher v. Perkins, 122 U.
S. 522;
McComb v. County Commissioners,
91 U. S. 1,
91 U. S. 2;
McMaster v. Gould, 276 U. S. 284;
Southern Electric Co. v. Stoddard, 269 U.
S. 186;
Stratton v. Stratton, 239 U. S.
55;
Mullen v. Western Union Beef Co.,
173 U. S. 116;
Great Western Telegraph Co. v. Burnham, 162 U.
S. 339. Hence, it is the last state tribunal -- here,
the court en banc -- to which the cause could be brought for review
which is the "highest court of a State in which a decision could be
had" within the meaning of the jurisdictional statute, regardless
of the particular description or designation which may be applied
to it by state statutes.
Upon application to this Court for review of the judgment of a
state court, it is the petitioner's burden to show affirmatively
that we have jurisdiction.
Memphis Natural Gas Co. v.
Beeler, 315 U. S. 649. As
the record fails to disclose that the judgment, review of which is
now sought, is that of the highest court of the state in which a
decision could be had, we are without jurisdiction, and the writ
must be
Dismissed.