U.S. Supreme Court JOHN P. KING MFG. CO. v. CITY COUNCIL OF AUGUSTA, 277 U.S. 100 (1928)

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v. St. Paul, 181 U.S. 142, 147, 21 S. Ct. 575; Appleby v. New York, 271 U.S. 364, 379, 380 S., 46 S. Ct. 569. It is admitted that there was here no formal contract. But it is insisted that a contract arose from conversations and correspondence between representatives of the plaintiff and officers of the city, and that it included an engagement for a designated price or rate in perpetuity. The proofs have been considered. It would serve no purpose to review them in this opinion. We think they fall short of showing any engagement respecting the rate, other than that it was to be the established rate for users in general. The rate had been fixed by ordinance when the plaintiff obtained the right to have water power supplied to its mill, but there was, as we construe the proofs, no engagement that that rate should continue indefinitely. The city may be under a duty to supply the power at a reasonable rate (see Millers v. Augusta, 63 Ga. 722), but that question is not in this case. The plaintiff's objection is confined to the asserted impairment of a prior contract.

Judgment affirmed.

Mr. Justice BRANDEIS (with whom Mr. Justice HOLMES concurs), dissenting.

I think that the writ of error should be dismissed. The judgment below was entered after the effective date of the Act of February 13, 1925, c. 229, 43 Stat. 936, 937, 942. That act struck from section 237 of the Judicial Code the Words 'or an authority exercised under any state.' [Footnote 1] The section as so amended limits the right of review by writ of error to cases where the highest court of a state has denied the validity of a treaty or statute of the United States, or has affirmed the validity of a statute of a state, challenged as repugnant to the Constitution, treaties, or laws of the

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United States. Other cases can be reviewed only if this court, in the exercise of its discretion, grants a writ of certiorari. Here the challenge was to the validity of an ordinance of a city. I cannot believe that, if Congress had intended to maintain our jurisdiction to review judgments sustaining such ordinances on writ of error, it would not have found clearer language in which to express its purpose.

The question before us is the interpretation, not of the word 'laws,' used in the Constitution, but the narrower term 'statute,' employed in the Judiciary Act of 1789, c. 20, 25, 1 Stat. 73, 85 (28 USCA 344). And our task is to construe, not the single word 'statute,' but the phrase 'statute of any state.' Laws or regulations adopted by a municipality are called, in common speech, either ordinances or by-laws, not 'statutes.' [Footnote 2] In some connections, rules established by an institution are referred to as statutes. Thus the rules adopted by a university or its founder are sometimes spoken of as statutes of the university. But no one would call them statutes of the state under whose law the university is incorporated. Nor would any one, in refer-

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The jurisdiction then declared was exercised, without question, in the cases involving municipal ordinances that came before the court during the next half century. [Footnote 3] In 1876 the subject was carefully reconsidered in Home Insurance Co. v. City Council of Augusta, 93 U.S. 116, 118, 121 S. (23 L. Ed. 825). After stating the possible bases of jurisdiction under section 709 of the Revised Statutes, the court said: 'Here there was drawn in question the authority exercised by the city council under the state in passing the ordinance imposing the tax complained of. The question raised was as to its repugnancy to the Constitution of the United States; and the decision was in favor of the validity of the authority so exercised. A right was also claimed under the Constitution of the United States. The decision was adverse to the claim. The case is, therefore, within two of the categories we have stated. The jurisdictional objection cannot be maintained.'

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Prior to the act of 1925, the difference, for purposes of appellate review, between a statute and a law enacted by a subordinate legislative body, had been called to the attention of Congress also by the cases which settled that the enactments of the Legislatures and other lawmaking bodies of the territories and of the District of Columbia are not statutes of the United States within the meaning of legislation governing the jurisdiction of this court. The question appears to have arisen first under the Act of March 3, 1885, c. 355, 2, 23 Stat. 443. The phraseology of this statute was similar to that of section 25 of the Judiciary Act of 1789, and this court has always recognized that decisions under it, and its later re- enactments are authoritative with regard to the construction of section 237 of the Judicial Code. [Footnote 6] It permitted

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the ordinances of the District of Columbia, even where the enabling act provides that the ordinances shall have the same force as if enacted by the Congress of the United States.

Moreover, if municipal ordinances are deemed to be statutes of a state within the meaning of section 237(a) of the Judicial Code, legislative orders of state commissions, boards, and officials must be also. Prior to the act of 1925, judgments sustaining the validity of such orders were reviewable on writ of error as fully as judgments sustaining the validity of statutes and ordinances. Between the effective date of the act of 1916 and that of the act of 1925, this court wrote opinions in 21 cases in which a judgment of the highest court of a state involving the validity of an order of a commission was reviewed on writ of error. [Footnote 7] In none of the opinions was it stated that jurisdiction existed because an order is a statute of state. [Footnote 8] On the other hand, in Lancaster v. McCarty, 267

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priority of hearings in revenue cases. Act of June 30, 1870, c. 181, 16 Stat. 176 (28 USCA 768); Davenport City v. Dows, 15 Wall. 390, 392.10 It was reaffirmed when Congress, in 1925, withdrew the right to a direct appeal from the District Court in cases involving the validity of municipal ordinances, though allowing such an appeal in certain cases involving the validity of statutes and orders of commissions. On the other hand, the essential identity of statutes, ordinances, and orders, where the question concerns substantive rights, has always been recognized. Since all regulations established by competent authority are laws, the comprehensive term 'laws' has been used when it was desired to include all forms of legislative action. [Footnote 11] Thus, as the enactments of a subordinate body exercising legislative authority are a part of the laws of a state, an ordinance or an order is a law within the meaning of the contract clause, and is state action within the prohibitions of the Fourteenth Amendment. North

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ordinance could be brought here on writ of error to or on appeal from the Circuit Court of Appeals if the jurisdiction of the District or Circuit Court had been invoked in part on constitutional grounds. City of Vicksburg v. Henson, 231 U.S. 259, 267, 34 S. Ct. 95. But in 1925 Congress amended section 238 (28 USCA 345) so as to confine the right to a direct appeal in cases involving the validity of state action to those which fell within the provisions of section 266 (28 USCA 380)- provisions which had already been construed as not including municipal ordinances. Unless the phrase 'statute of any state,' as used in sections 237(a) and 240(b) of the Judicial Code as amended (28 USCA 344(a), 347( b)), includes municipal ordinances, no case from any lower court involving only the validity of a municipal ordinance can now be reviewed by this court otherwise than upon certiorari.

When it is borne in mind that the severe limitations upon the right of review by this court imposed by the act of 1925 were made solely because the increase of the court's business compelled, the reasons why Congress should have taken away the right to a review by writ of error to the highest court of a state in cases involving the validity of ordinances, while leaving unaffected the right in cases involving the validity of statutes, becomes clear. There are only 48 states. In 1920 there were 924 municipalities in the United States of more than 8,000 inhabitants. [Footnote 13] The validity of ordinances of even smaller municipalities had come to this court for adjudication. [Footnote 14]

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effect of the amendment,16 must be deemed to have been its purpose in so amending the section; that is, to relieve this court, in many cases, of the burden of obligatory review. For, other than these, there had been considered by this court, in the nine years between the effective dates of the Jurisdictional Acts of 1916 and 1925, and decided with opinions, not more than eight cases involving the validity of an authority exercised under a state or under the United States. [Footnote 17] On the other hand the forty cases in which judgments of state courts sustaining municipal ordinances or commission orders had been reviewed on writ of error, had entailed a burden out of all proportion to their number. The evidence introduced to establish the facts in cases involving the validity either of orders or of municipal ordinances is often both volum-

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ments. These two opinions were written at successive terms by the same member of the court. Atlantic Coast Line R. R. Co. v. Goldsboro, 232 U.S. 548, 555, 34 S. Ct. 364; Reinman v. Little Rock, 237 U.S. 171, 176, 35 S. Ct. 511. An examination of the record and briefs in the two cases seems to make it clear that the statements were obiter and were made inadvertently. No question of the jurisdiction of this court under section 237 of the Judicial Code was raised or discussed by counsel in either case; and this court could not, under the legislation then in force, have entertained a doubt as to the existence of the jurisdiction. Neither opinion of the court refers to Weston v. City Council of Charleston, 2 Pet. 449, 463, 464, or to Home Insurance Co. v. City Council of Augusta, , 121- the cases which, on full consideration, had settled that the basis of our jurisdiction was the clause relating to the validity of an authority. Neither refers to New Mexico ex rel. McLean v. Denver & Rio Grande R. R. Co., 203 U.S. 38, 47, 48 S., 27 S. Ct. 1, or to Smoot v. Heyl, 227, U. S. 518, 522, 33 S. Ct. 336-the cases which had recently confirmed that ruling. There was obviously no intention to overrule these cases.

The only authority cited in support of the statement in the Goldsboro and Little Rock cases, Williams v. Bruffy, , 183, furnishes no basis for them. That case involved an act of the Congress of the Confederate States-a body whose legislation would obviously be described in common speech as 'statutes.' It was conceded that the particular act was a 'statute.' The question was whether it was a statute 'of any state.' [Footnote 19] The court

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Rock, have never been repeated in any later case dealing with municipal ordinances, even where the decisions in the two cases have been relied upon. Some care seems to have been taken not to repeat the expression that a municipal ordinance was a statute of a state. See Thomas Cusack Co. v. Chicago, 242 U.S. 526, 529, 37 S. Ct. 190, L. R. A. 1918A, 136, Ann. Cas. 1917C, 594; Zucht v. King, 260 U.S. 174, 176, 43 S. Ct. 24. To construe the phrase 'statute of any state' as applying to a municipal ordinance disregards the common and appropriate use of the words, ignores decisions which for nearly a century have governed our jurisdiction to review judgments of state courts sustaining the validity of such ordinances, and tends to defeat the general purpose of the act of 1925 'to relieve this court by limiting further the absolute right to a review by it.' Moore v. Fidelity & Deposit Co., 272 U.S. 317, 321, 47 S. Ct. 105, 106 (71 L. Ed. 273); Smith v. Wilson, 273 U.S. 388, 390, 47 S. Ct. 385. 20 It completely frustrates the particular purpose which Congress must have had is striking from section 237 the clause 'or an authority exercised under any state.' [Footnote 21] The trivial character of the substan-

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tive question presented by this case-in which a writ of certiorari, if applied for, would plainly not have been granted-illustrates the wisdom of Congress in limiting our jurisdiction on writ of error. Footnotes

Footnote 1 The act of 1925 also struck out the words 'or an authority exercised under the United States.'

Footnote 2 These are the terms employed in the charters of American cities and towns both before and since the adoption of the Constitution. They have been continuously employed apparently by all tex-writers on municipal corporations and government. 'Local laws of a numicipal corporation, duly enacted by the proper authorities, prescribing general, uniform and permanent rules of conduct, relating to the corporate affairs of the municipality, are, in this country, generally designated as ordinances. 'By-laws' or 'bye-laws' was the original designation.' McQuillin, Municipal Ordinances, 1; 2 McQuillin, Municipal Corporations, 632. 'The result of legislative action by a municipal council or assembly is a local law usually denominated an ordinance.' 2 Abbott, Municipal Corporations, 514. See, also, Dillon, Municipal Corporations (1st Ed.) p. 270; Munro, Municipal Government and Administration, p. 209; Reed, Municipal Government, p. 173. No instance has been found where such writers have used the word 'statutes' in referring to municipal ordinances.

Footnote 3 Waring v. Mayor, 8 Wall. 110; Woodruff v. Parham, 8 Wall, 123; Osborne v. Mobile, 16 Wall. 479; Cannon v. New Orleans, 20 Wall. 577, Compare Barron v. Baltimore, 7 Pet. 243, 245, 246.

Footnote 4 See the debate in the Senate at the preceding session. 48 Cong. Rec. 8120-8123. The House Committee on the Judiciary was 'of the opinion that the statute should be broadened, so as to prevent this kind of interference (i. e., by a single judge) with state officials who are performing their duties under the provisions of a statute enacted by the Legislature of a state.' House Report, 62d Cong. 3d Sess. No. 1584, p. 2. Mr. Clayton, who was in charge of the bill in the House, said that its purpose was 'to put the order of a State Railroad Commission upon an equality with a statute of a state; in other words, to give the same force and effect to the order of a State Railroad Commission fixing rates as is accorded under existing law to a state statute.' 49 Cong. Rec. 4773.

Footnote 5 This court has not passed expressly on the construction to be given section 266 in this respect. Until amended by the Act of February 13, 1925, section 266 did not require the presence of three judges at the final hearing; and, on appeal to this court from the final decree, the propriety of the action of the single judge in granting or denying a temporary injunction was not strictly in issue. Shaffer v. Carter, 252 U.S. 37, 44, 40 S. Ct. 221. But if this court had doubted the power of a District Judge to act in such cases, it would hardly have mentioned without comment the fact that such a judge had granted or denied a temporary injunction. This it has done in a number of cases. See United Railroads v. San Francisco, 249 U.S. 517, 519, 39 S. Ct. 361; Southern Iowa Electric Co. v. Chariton, 255 U.S. 539, 541, 41 S. Ct. 400; Galveston Electric Co. v. Galveston, 258 U.S. 388, 390, 42 S. Ct. 351; Paducah v. Paducah Ry. Co., 261 U.S. 267, 271, 43 S. Ct. 335; St. Cloud Public Service Co. v. St. Cloud, 265 U.S. 352, 355, 44 S. Ct. 492. Since the effective date of the act of 1925, this court has decided, on certiorari to Circuit Courts of Appeals, a number of cases in which an application for a temporary injunction against the enforcement of a municipal ordinance had been heard before, and the final decree rendered by, a single District Judge. See Hammond v. Schappi Bus Line, , 48 S. Ct. 66; Hammond v. Farina Bus Line & Transportation Co., 275 U.S. 173, 48 S. Ct. 70; Delaware, Lackawanna & Western R. R. Co. v. Morristown, No. 147, 276 U.S. 182, 48 S. Ct. 276, decided February 20, 1928. If a municipal ordinance had been a statute within section 266, the decrees of the District Judges in these cases would have been void for want of jurisdiction.

Footnote 6 See Ireland v. Woods, 246 U.S. 323, 328, 38 S. Ct. 319, citing and following United States ex rel. Champion Lumber Co. v. Fisher, 227 U.S. 445, 451, 33 S. Ct. 329; Erie R. R. Co. v. Hamilton, 248 U.S. 369, 372, 39 S. Ct. 95, citing and following Baltimore & Potomac R. R. Co. v. Hopkins, , 9 S. Ct. 503; District of Columbia v. Gannon, 130 U.S. 227, 9 S. Ct. 508, and United States v. Lynch, 137 U.S. 280, 285, 11 S. Ct. 114; Jett Bros. Distilling Co. v. City of Carrollton, 252, U. S. 1, 6, 40 S. Ct. 255, citing and following Baltimore & Potomac R. R. Co. v. Hopkins, , 9 S. Ct. 503, and United States er rel. Champion Lumber Co. v. Fisher, 227 U.S. 445, 450, 451 S., 33 S. Ct. 329; Schaff v. Famechon Co., 258 U.S. 76, 81, 42 S. Ct. 189, citing and following Baltimore & Potomac R. R. Co. v. Hopkins, , 9 S. Ct. 503; Zucht v. King, 260 U.S. 174, 177, 43 S. Ct. 24, citing and following United States ex rel. Taylor v. Taft, , 27 S. Ct. 148, and United States ex rel. Champion Lumber Co. v. Fisher, 227 U.S. 445, 33 S. Ct. 329; Lancaster v. McCarty, 267 U.S. 427, 430, 45 S. Ct. 342, 69 L. Ed 696, citing and following United States ex rel. Champion Lumber Co. v. Fisher, 227 U.S. 445, 451, 33 S. Ct. 329. The significance of decisions under the act of 1885 is confirmed by the legislative history of the act, which shows, as seemed probable from its language, that the provision with respect to 'a treaty or statute of or an authority exercised under the United States,' was derived, like section 237 of the Judicial Code, from section 25 of the Judiciary Act of 1789. See 16 Cong. Rec. 670, 671.

Footnote 7 In Live Oak Water Users' Association v. Railroad Commission, , 46 S. Ct. 149, the court while asserting its jurisdiction over judgments sustaining such orders, dismissed a writ of error, as the judgment below rested on adequate nonfederal grounds.

Footnote 8 The jurisdiction was first challenged in Bluefield Waterworks & Improvement Co. v. Public Service Commission, 262 U.S. 679, 43 S. Ct. 675. The court said, at page 683 (43 S. Ct. 676): 'The prescribing of rates is a legislative act. The commission is an instrumentality of the state, exercising delegated powers. Its order is of the same force as would be a like enactment by the Legislature. If, as alleged, the prescribed rates are confiscatory, the order is void. Plaintiff in error is entitled to bring the case here on writ of error and to have that question decided by this court.' In Northern Pacific Ry. Co. v. Department of Public Works, 268 U.S. 39, 42, 45 S. Ct. 412, jurisdiction was assumed on the authority of the Bluefield Case. In Live Oak Water Users' Association v. Railroad Commission, 269 U.S. 354, 356, 46 S. Ct. 149, 150 (70 L. Ed. 305), the court said that 'for jurisdictional purposes the order of the Commission must be treated as though an act of the Legislature.' This was said, of course, with reference to the situation under the act of 1916, for the judgment under review was entered October 23, 1923.

Footnote 9 Since the effective date of the act of 1925, no judgment of a state court has been reviewed by this court on writ of error, where the sole claim was that a commission order was unconstitutional. In the following cases, governed by the act of 1925, in which this court reviewed on writ of error a judgment of a state court sustaining the validity of a commission order, the validity of the underlying statute as well as of the order was attacked: Frost & Frost Trucking Co. v. Railroad Commission, , 46 S. Ct. 605, 47 A. L. R. 457; Chicago, Milwaukee & St. Paul Ry. Co. v. Railroad Commission, 272 U.S. 605, 47 S. Ct. 207; Miller Lumber Co. v. Floyd, 273 U.S. 672, 47 S. Ct. 475 (per curiam); Fox River Paper co. v. Railroad Commission, 273 U.S. 651, 47 S. Ct. 669; Pierce v. Barker, 274 U.S. 718, 47 S. Ct. 589 (per curiam); Stimson Lumber Co. v. Kuykendall, 275 U.S. 207, 48 S. Ct. 41; International-Great Northern R. R. Co. v. Railroad Commission, No. 90, 275 U.S. 503, 48 S. Ct. 155, 72 L. Ed. -, decided December 5, 1927 (per ciriam). In Chicago, Milwaukee & St. Paul Ry. Co. v. Public Utilities Commission, 274 U.S. 344, 47 S. Ct. 604, and in AEtna Insurance Co. v. Hyde, No. 112, 275 U.S. 440, 48 S. Ct. 174, decided January 3, 1928, the review was by certiorari. In AEtna Insurance Co. v. Baker, No. 731, 276 U.S. 628, 48 S. Ct. 321, 72 L. Ed. -, decided March 5, 1928, certiorari was denied. Compare Phillips v. oklahoma, 274 U.S. 721, 47 S. Ct. 588 (per curiam); Phillips v. Oklahoma, No. 20, 275 U.S. 489, 48 S. Ct. 32, 72 L. Ed. -, decided October 24, 1927 (per curiam); Missouri v. Public Service Commission, Nos. 21-27, 275 U.S. 489, 48 S. Ct. 32, 72 L. Ed. -, decided October 24, 1927 ( per curiam).

Footnote 10 Mr. Chief Justice Chase eplained why the act should be construed as applying only to statutes and not to municipal ordinances: 'This preference is given, plainly enough, because of the presumed importance of such cases to the administration and internal welfare of the states, and because of their dignity as equal members of the Union. The reasons for preference do not apply to municipal corporations, more than to railroad and many other corporations.' Page 392.

Footnote 11 In procedural matters-which, like jurisdiction, rest upon considerations of expediency-the difference between statutes and ordinances has been observed, in some instances, even when in the legislation the more comprehensive term 'laws' was used. Such was the case in Davenport City v. Dows, supra. Again, while municipal ordinances are 'laws of the several states' within the meaning of section 34 of the Judiciary Act of 1789, 1 Stat. 73, 92, and section 721 of the Revised Statutes (28 USCA 725), they will not be judicially noticed in the federal courts; for 'an ordinance is not a public statute, but a mere municipal regulation.' Robinson v. Denver Tramway Co. (C. C. A.) 164 F. 174, 176. Compare Garlich v. Northern Pacific Ry. Co. (C. C. A.) 131 F. 837, 839; Choctaw, O. & G. R. R. Co. v. Hamilton (C. C.) 182 F. 117, 121.

Footnote 12 It was on this statement of Mr. Justice Gray's that the court relied in North American Cold Storage Co. v. Chicago, 211 U.S. 306, 313, 29 S. Ct. 101, 103 (53 L. Ed. 195, 15 Ann. Cas. 276), where it answered a contention that a bill alleging only municipal legislative action presented no constitutional question sufficient to sustain the jurisdiction of the Circuit Court, by saying: 'In this case the ordinance in question is to be regard as in effect a statute of the state, adopted under a power granted it by the state Legislature, and hence it is an act of the state within the Fourteenth Amendment.'

Footnote 13 Fourteenth Census of the United States (1920) vol. I, table 27.

Footnote 14 See, e. g., Brennan v. Titusville, , 14 S. Ct. 829; Wabash R. R. Co. v. Defiance, 167 U.S. 88, 17 S. Ct. 748; Wilson v. Eureka City, 173 U.S. 32, 19 S. Ct. 317; Skaneateles Water Co. v. Skaneateles, 184 U.S. 354, 22 S. Ct. 400; Western Union Telegraph Co. v. New Hope, 187 U.S. 419, 23 S. Ct. 204; Williams v. Talladega, 226 U.S. 404, 33 S. Ct. 116; Pierce Oil Corporation v. Hope, 248 U.S. 498, 39 S. Ct. 172. In Village of Terrace Park v. Errett, 273 U.S. 710, 47 S. Ct. 100, and Village of University Heights v. Cleveland Jewish Orphans Home, No. 594, 275 U.S. 569, 48 S. Ct. 141, 72 L. Ed. -, decided November 28, 1927, the court denied petitions for certiorari in cases where Circuit Courts of Appeals had held the zoning ordinances of small suburban districts to be unconstitutional as applied to the respondents. If ordinances are statutes of a state, these cases could have been brought here by writ of error under section 240(b). In Gorieb v. Fox, 274 U.S. 603, 47 S. Ct. 675, 53 A. L. R. 1210, a judgment of a state court sustaining a zoning ordinance was reviewed by certiorari. Compare Township of Maplewood v. Margolis, Nos. 644, 645, 276 U.S. 617, 618, 48 S. Ct. 212, 72 L. Ed. -, certiorari denied, January 16, 1928; Nectow v. City of Cambridge, No. 509, 277 U.S. 183, 48 S. Ct. 447, decided this day.

Footnote 15 The court has noted this dependence with respect both to zoning ordinances and to bus regulations. See Euclid v. Amber Realty Co., 272 U.S. 365, 395, 47 S. Ct. 114; Hammond v. Schappi Bus Line, 275 U.S. 164, 170, 48 S. Ct. 66.

Footnote 16 See Hearing before a Subcommittee of the Committee on the Judiciary of the United States Senate, 68th Cong. 1st Sess. on S. 2060, p. 35; Hearing before the Committee on the Judiciary of the House of Representatives, 68th Cong. 2d Sess. on H. R. 8206, p. 13.

Footnote 17 In only three cases in which opinion were written aside from those involving municipal ordinances and commission orders, does jurisdiction appear to have been exercised under the clause in the act of 1916 allowing a writ of error in cases where the validity of an authority exercised under a state has been challenged and sustained. Schwab v. Richardson, , 44 S. Ct. 60; Love v. Griffith, 266 U.S. 32, 45 S. Ct. 12; Appleby v. Delaney, 271 U.S. 403, 46 S. Ct. 581. Possibly, under the view announced by the court, even such state action as was involved in these cases amounts to 'a statute of a state.' In five cases jurisdiction seems to have been based on the clause allowing a writ of error where the validity of an authority exercised under the United States has been denied. American Express Co. v. Caldwell, 244 U.S. 617, 37 S. Ct. 656; Northern Pacific Ry. Co. v. North Dakota, 250 U.S. 135, 39 S. Ct. 502; Dakota Central Telephone Co. v. South Dakota, 250 U.S. 163, 39 S. Ct. 507, 4 A. L. R. 1623; Davis v. Newton Coal Co., 267 U.S. 292, 45 S. Ct. 305; Lancaster v. McCarty, 267 U.S. 427, 45 S. Ct. 324. The first and the last of this group concerned orders of the Interstate Commerce Commission, which, presumably, must be held to be statutes of the United States if the orders of state commissions are statutes of a state. Perhaps the other three as well were statutes of the United States under the view now taken by the court.

Footnote 18 Thus, in Southwestern Bell Telephone Co. v. Public Service Commission, 262 U.S. 276, 43 S. Ct. 544, 31 A. L. R. 807, the record was 685 pages in length. In Bluefield Waterworks & Improvement Co. v. Public Service Commission, 262 U.S. 679, 43 S. Ct. 675, the record extended over 1,398 pages. The record in Northern Pacific Ry. Co. v. Department of Public Works, 268 U.S. 39, 45 S. Ct. 412, contained 1,131 pages in addition to numerous exhibits. In Hammond v. Schappi Bus Line, 275 U.S. 164, 48 S. Ct. 66, and Hammond v. Farina Bus Line & Transportation Co., 275 U.S. 173, 48 S. Ct. 70, the court found itself compelled to remand to the District Court in order for that court to make proper findings of fact.

Footnote 19 That the sole question discussed was whether the act of the Congress of the Confederate States was an act of 'any state' appears from the briefs on file in the office of the clerk. See Supplemental Brief of Enoch Totten for the Plaintiff in Error, pp. 10, 11; Brief of Henry W. Garnett for the Defendant in Error, p. 3; Brief of William A. Maury, as amicus curiae, pp. 4, 5, 7. The question was thus stated by Mr. Maury on p. 5 of his brief: 'Upon what ground, then, can it be maintained that a statute of, or authority exercised under, the hostile de facto government of Virginia was the statute of or authority of a state, in the sense of the law which is this court's commission to take cognizance of appeals from the state tribunals? (Scott v. Jones, 5 How. 343).' The case cited by Mr. Maury Scott v. Jones, 5 How. 343, 376, held that the statutes of an unorganized political body were not statutes 'of a state' within the meaning of section 25 of the Judiciary Act, although that body later became a state. In Miners' Bank v. Iowa, 12 How. 1, a territorial statute was held not to be a statute 'of a state' within section 25, though the territory had since become a state. The language in Ford v. Surget, 97 U.S. 594, 603, 604 S., and Stevens v. Griffith, 111 U.S. 48, 50, 4 S. Ct. 283, also makes clear the exact point of the decision in Williams v. Bruffy.

Footnote 20 Much weight was given to this purpose in construing earlier acts reducing our jurisdiction. Compare McLish v. Roff, 141 U.S. 661, 666, 12 S. Ct. 118, Robinson v. Caldwell, 165 U.S. 359, 362, 17 S. Ct. 343, American Sugar Refining Co. v. New Orleans, 181 U.S. 277, 281, 21 S. Ct. 646, all construing the Circuit Courts of Appeals Act, March 3, 1891, c. 517, 26 Stat. 826; American Security & Trust Co. v. District of Columbia, 224 U.S. 491, 495, 32 S. Ct. 553, construing section 250 of the Judicial Code; Inter- Island Steam Navigation Co., Limited, v. Ward, , 37 S. Ct. 1, construing section 246 of the Judicial Code (36 Stat. 1158), as amended by the Act of January 28, 1915, c. 22, 38 Stat. 803.

Footnote 21 Since the effective date of the act of 1925, judgments of state courts sustaining the validity of municipal ordinances have been reviewed on writ of error in a number of cases. Beery v. Houghton, 273 U.S. 671, 47 S. Ct. 474 (per curiam); Ohio ex rel. Clarke v. Deckebach, 274 U.S. 392, 47 S. Ct. 630; Angelo v. Winston- Salem, 274 U.S. 725, 47 S. Ct. 763 (per curiam); Bloecher & Schaaf v. Baltimore, No. 35, 275 U.S. 490, 48 S. Ct. 33, 72 L. Ed. -, decided October 24, 1927 (per curiam); Kresge Co. v. Dayton, No. 109, 275 U.S. 505, 48 S. Ct. 156, 72 L. Ed. -, decided December 5, 1927 (per curiam). Compare Natchez v. McNeeley, No. 94, 275 U.S. 502, 48 S. Ct. 156, 72 L. Ed. -, decided December 5, 1927 (per curiam). But in none of them did counsel question the jurisdiction of this court, or call to our attention the significance of the amendment of section 237 made by the act of 1925. It is well settled that the exercise of jurisdiction under such circumstances is not to be deemed a precedent when the question is finally brought before us for determination. United States v. More, 3 Cranch, 159, 172; Snow v. United States, 118 U.S. 346, 354, 6 S. Ct. 1059; Cross v. Burke, 146 U.S. 82, 86, 13 S. Ct. 22; Louisville Trust Co. v. Knott, 191 U.S. 225, 236, 24 S. Ct. 119; Arant v. Lane, 245 U.S. 166, 169, 38 S. Ct. 94.