In re Buder et al. No. ___, Original

CourtUnited States Supreme Court
Writing for the CourtBRANDEIS
Citation70 L.Ed. 1036,271 U.S. 461,46 S.Ct. 557
Decision Date01 June 1926
PartiesIn re BUDER et al. No. ___, Original

271 U.S. 461
46 S.Ct. 557
70 L.Ed. 1036
In re BUDER et al.
No. ___, Original.

Submitted on Motion for Leave to File March 1, 1926.

Decided June 1, 1926.

Page 462

Messrs. North T. Genty, of Jefferson City, Mo., and Oliver Senti, James T. Blair, and Charles P. Williams, all of St. Louis, Mo., for petitioners.

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 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, 8 F.(2d) 883.

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 Crane, 5 Pet. 190, 8 L. Ed. 92; United States v. Gomez, 3 Wall. 752, 766, 18 L. Ed. 212. In a few instances the writ of mandamus has issued for that purpose. Vigo's Case, 21 Wall. 648, 22 L. Ed. 690; Ex parte Jordan, 94 U. S. 248, 24 L. Ed. 123; Ex parte Railroad Co., 95 U. S. 221, 24 L. Ed. 355. 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. Mussina v. Cavazos, 20 How. 281, 15 L. Ed. 878; Ex parte Cutting, 94 U. S. 14, 24 L. Ed. 49. Where it was clear that the petitioner

Page 464

had another remedy, the motion for leave to file the petition was denied. Ex parte Virginia Commissioners, 112 U. S. 177, 5 S. Ct. 421, 28 L. Ed. 691. 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, 271 U. S. 645, 46 S. Ct. 489, 70 L. Ed. —, decided May 10, 1926. Compare In re Green, 141 U. S. 325, 12 S. Ct. 11, 35 L. Ed. 765; Iowa v. Slimmer, 248 U. S. 115, 39 S. Ct. 33, 63 L. Ed. 158. 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...

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57 practice notes
  • Kesler v. Department of Public Safety, Financial Responsibility Division, State of Utah, No. 14
    • United States
    • United States Supreme Court
    • March 26, 1962
    ...of a state law or the federal law, the three-judge requirement does not become operative. Such was the ruling in Ex parte Buder, 271 U.S. 461, 46 S.Ct. 557, 70 L.Ed. 1036, where the Supremacy Clause was not invoked and therefore the three-judge court was not required. In Ex parte Bransford,......
  • State ex rel. Madden v. Sartorius, No. 37870.
    • United States
    • United States State Supreme Court of Missouri
    • July 28, 1942
    ...So. 628; People ex rel. Mark v. Walker, 286 Ill. 541, 122 N.E. 92; People ex rel. Dodson v. Kohlsaat, 168 Ill. 37, 48 N.E. 81; Re Buder, 271 U.S. 461, 70 L. Ed. 1036, 46 Sup. Ct. 557; State ex rel. Gold v. Secrest, 33 Minn. 381, 23 N.W. 545. (6) The affidavit for appeal presents only a prim......
  • State ex rel. Yale University v. Sartorius, No. 37871.
    • United States
    • United States State Supreme Court of Missouri
    • July 28, 1942
    ...So. 628; People ex rel. Mark v. Walker, 286 Ill. 541, 122 N.E. 92; People ex rel. Dobson v. Kohlsaat, 168 Ill. 37, 48 N.E. 81; Re Buder, 271 U.S. 461, 70 L. Ed. 1036, 46 Sup. Ct. 557; State ex rel. Gold v. Secrest, 33 Minn. 381, 23 N.W. 545. (7) The affidavit for appeal presents only a prim......
  • Swift Company v. Wickham, No. 9
    • United States
    • United States Supreme Court
    • November 22, 1965
    ...must carry out this function is the question at hand. The first decision of this Court casting light on the problem was Ex parte Buder, 271 U.S. 461, 46 S.Ct. 557, 70 L.Ed. 1036, in which the question presented was, as here, whether an appeal was properly taken directly from the District Co......
  • Request a trial to view additional results
57 cases
  • Kesler v. Department of Public Safety, Financial Responsibility Division, State of Utah, No. 14
    • United States
    • United States Supreme Court
    • March 26, 1962
    ...of a state law or the federal law, the three-judge requirement does not become operative. Such was the ruling in Ex parte Buder, 271 U.S. 461, 46 S.Ct. 557, 70 L.Ed. 1036, where the Supremacy Clause was not invoked and therefore the three-judge court was not required. In Ex parte Bransford,......
  • State ex rel. Madden v. Sartorius, No. 37870.
    • United States
    • United States State Supreme Court of Missouri
    • July 28, 1942
    ...So. 628; People ex rel. Mark v. Walker, 286 Ill. 541, 122 N.E. 92; People ex rel. Dodson v. Kohlsaat, 168 Ill. 37, 48 N.E. 81; Re Buder, 271 U.S. 461, 70 L. Ed. 1036, 46 Sup. Ct. 557; State ex rel. Gold v. Secrest, 33 Minn. 381, 23 N.W. 545. (6) The affidavit for appeal presents only a prim......
  • State ex rel. Yale University v. Sartorius, No. 37871.
    • United States
    • United States State Supreme Court of Missouri
    • July 28, 1942
    ...So. 628; People ex rel. Mark v. Walker, 286 Ill. 541, 122 N.E. 92; People ex rel. Dobson v. Kohlsaat, 168 Ill. 37, 48 N.E. 81; Re Buder, 271 U.S. 461, 70 L. Ed. 1036, 46 Sup. Ct. 557; State ex rel. Gold v. Secrest, 33 Minn. 381, 23 N.W. 545. (7) The affidavit for appeal presents only a prim......
  • Swift Company v. Wickham, No. 9
    • United States
    • United States Supreme Court
    • November 22, 1965
    ...must carry out this function is the question at hand. The first decision of this Court casting light on the problem was Ex parte Buder, 271 U.S. 461, 46 S.Ct. 557, 70 L.Ed. 1036, in which the question presented was, as here, whether an appeal was properly taken directly from the District Co......
  • Request a trial to view additional results

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