MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
This is a suit brought in a state court in Georgia to restrain the enforcement of an ordinance of the City of Augusta fixing rates for water power supplied from a canal owned and maintained by the city. The plaintiff is a manufacturing company which operates a mill adjacent to the canal with water power supplied therefrom. The objection urged against the ordinance is that it is repugnant to the contract clause of the Constitution of the United States, and therefore invalid, in that it impairs the obligation of a prior contract whereby the city undertook to supply water power for the plaintiff's mill in perpetuity at a lower rate than that fixed in the ordinance. The court of first instance held the ordinance valid and accordingly dismissed the suit. This was affirmed by the Supreme Court of the State, 164 Ga. 306; and the case is
Counsel on both sides treat the case as one which rightly may be brought to this Court on writ of error, but some members of the Court doubt that it is such a case. Therefore this question will be given immediate consideration.
The jurisdiction of this Court to review on writ of error judgments or decrees of state courts of last resort is defined by § 237(a) of the Judicial Code, as set forth in the amendatory act of February 13, 1925, c. 229, 43 Stat. 936. As there defined this jurisdiction extends to two classes of cases —
(1) "where is drawn in question the validity of a treaty or statute of the United States, and the decision is against its validity;"
(2) "where is drawn in question the validity of a statute of any State on the ground of its being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of its validity."
Plainly the present case is not within the first provision. Is it within the second? This depends on the sense in which the words "a statute of any State" are used therein. If they are used as narrowly comprehending only an enactment of the state legislature, the case is excluded; but if they are used as broadly comprehending any legislation proceeding from the law-making agencies of the State, the case is included.
In usage "statute" is a term which has both a restricted and a broad signification. This is reflected in the following excerpt from Bouvier's Law Dictionary, Rawle's Revision:
"STATUTE. A law established by the act of the legislative power. An act of the legislature. The written will of the legislature, solemnly expressed according to the forms necessary to constitute it the law of the state.
"Among the civilians, the term statute is generally applied to laws and regulations of every sort; every provision of law which ordains, permits or prohibits anything is designated a statute, without considering from what source it arises."
The Constitution of the United States does not use the term "statute," but it does employ the term "law," often regarded as an equivalent, to describe an exertion of legislative power. Thus it is declared that a bill presented in either house of Congress, if receiving prescribed favorable consideration, shall "become a law," Art. I, § 7; that Congress may "make all laws" necessary and proper for carrying into execution various enumerated powers, Art. I, § 8, cl. 18; that no State "shall pass" any "ex post facto law or law impairing the obligation of contracts," Art. I, § 10, cl. 1; that no State "shall make or enforce any law" abridging the privileges or immunities of citizens of the United States, Fourteenth Amendment, § 1; that the Constitution, "laws" and treaties of the United States shall be the supreme law of the land and the judges in every State shall be bound thereby, anything in the Constitution or "laws" of any State to the contrary notwithstanding, Art. 6, cl. 2, and that the judicial power of the United States shall extend, among others, to all cases in law and equity arising under the Constitution, "laws" and treaties of the United States, Art. 3, § 2.
It of course rests with each State to determine in what form and by what agencies its legislative power may be exerted. It may legislate little or much in its constitution, may permit the electorate to make laws by direct vote, may entrust its legislature with wide law-making functions and may delegate legislative authority to subordinate agencies, such as municipal councils and state commissions.
The jurisdictional provision we are considering is designed to be in aid of such protection. It proceeds on the theory that through inadvertence or design those who are entrusted with the legislative power of a State may exercise the same in a manner forbidden by the Constitution of the United States, and that the state courts may uphold such legislation when it should be held invalid. Unlike other state action, legislation consists of rules having continuing force and intended to be observed and applied in the future; and this regardless of the state agency from which it proceeds.
Were the question an open one, these considerations would afford impelling reasons for holding that the jurisdictional provision uses the words "a statute of any State" in their larger sense and is not intended to make a distinction between acts of a state legislature and other exertions of the State's law-making power, but rather to include every act legislative in character to which the
The jurisdictional provision originally was part of § 25 of the act of September 24, 1789, c. 20, 1 Stat. 73, 85, which authorized this Court to review on writ of error judgments and decrees of state courts of last resort in cases —
(1) "where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity;"
(2) "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 such their validity;"
(3) "where is drawn in question the construction of any clause of the Constitution, or of a treaty, or statute of, or commission held under, the United States, and the decision is against the title, right, privilege or commission specially set up or claimed by either party under such clause of said Constitution, treaty, statute or commission."
By the act of February 5, 1867, c. 28, 14 Stat. 385, that section was reenacted — the first and second provisions without change and the third to read as follows:
(3) "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 against the title, right, privilege, or immunity specially set up or claimed by either party under such Constitution, treaty, statute, commission, or authority."
The three provisions — the third as so amended — were carried into § 709 of the Revised Statutes of 1873 and into § 237 of the Judicial Code of 1911. By the act of September 6, 1916, c. 448. 39 Stat. 726, the third provision was
In order that the second provision — the material one in this case — and the change made therein may be accurately in mind we now quote the provision in both its original and its amended form —
[Act 1789] "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 States, and the decision is in favor of its validity."
[Act 1925] "Where is drawn in question the validity of a statute of any State on the ground of its being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of its validity."
It will be seen that the phrase "a statute of any State" has been in the provision from the time of its original enactment, and that this phrase was retained in the reenactment of 1925 without change or qualification. So, its meaning before the reenactment is its meaning now.
Before coming to decided cases which we deem relevant it is well to refer to some which, although cited as in point, appear to us not to be so. Weston v. Charleston, 2 Pet. 449 and Home Insurance Company v. Augusta, 93 U.S. 116, are examples. The first is a case where a tax ordinance of Charleston was sustained by the state court over the objection that it was in conflict with the Constitution of the United States. This Court's jurisdiction was invoked, and was by it sustained, p. 463, on the ground that the city's action in adopting the ordinance was the "exercise of an authority" under the State. Whether the ordinance was a statute of the State was not considered. The other case also involved a municipal
Williams v. Bruffy, 96 U.S. 176, is the first case in which the phrase "a statute of any State" in the jurisdictional provision was considered and construed. There a debt arising on contract and owing by a citizen of Virginia to citizens of Pennsylvania had been sequestrated during the Civil War under an enactment of the Confederate States and collected from the debtor by that Government. After the war the creditors brought a suit against the debtor's administrator in a state court in Virginia to collect the debt. The defendant interposed pleas setting up the sequestration and collection under the confederate enactment. Judgment went for the defendant on these pleas over the plaintiffs' objection that the confederate enactment was invalid under the Constitution; and the Supreme Court of Appeals sustained that ruling. The case was brought to this Court on writ of error, its jurisdiction being invoked on the grounds that the case was one (a) where the validity of both a statute of the State and an authority under the State was drawn in question as repugnant to the Constitution and was sustained, and (b) where a right, privilege and immunity claimed under the Constitution was denied. The jurisdiction was contested, but was sustained expressly on "both" grounds in a considered opinion by Mr. Justice Field, speaking for entire Court. In sustaining the first ground he said pp. 182-183:
"The pleas aver that a confederation was formed by Virginia and other States, called the Confederate States of America, and that under a law of this confederation,
Ford v. Surget, 97 U.S. 594, is much like the case just cited. The plaintiff sued in a state court in Mississippi to recover for cotton belonging to him which the defendant had destroyed in that State during the Civil War in obedience to an enactment of the Confederate States. By special pleas the defendant set up that enactment in justification of the trespass; and the plaintiff insisted by demurrers that the enactment was contrary to the Constitution. The demurrers were overruled and judgment was given for the defendant, which the Supreme Court affirmed. The case was brought to this Court by
"The general orders of the state court overruling the demurrers must be accepted, in every essential sense, as an adjudication in favor of the validity of an act of the confederate congress, recognized and enforced as law in Mississippi, and which act, according to the rule laid down in that case, must be, therefore, regarded by us as a statute of that State, within the meaning of the provisions of the act declaring the appellate jurisdiction of this court. It results that we have power to review the final judgment of the Supreme Court of Mississippi."
Stevens v. Griffith, 111 U.S. 48, is a case where the Supreme Court of Tennessee had given effect to an enactment of the Confederate States. This Court there said, after reciting its ruling in Williams v. Bruffy, p. 51:
"So, in this case the Confederate enactment, under which the confiscation of the money was had, can be treated only as a statute of Tennessee, by whose sanction it was enforced as a law of that State."
New Orleans Waterworks Co. v. Louisiana Sugar Refining Co., 125 U.S. 18, is a case wherein this Court was asked on writ of error to review a judgment of the Supreme Court of Louisiana giving effect to an ordinance of New Orleans against the contention that it impaired the obligation of a contract. The opinion was by Mr. Justice Gray. After stating that, to be within the contract clause of the Constitution, the impairment must be "by a law of the State," and that this Court "has no jurisdiction to review a judgment of the highest court of a State, on the ground that the obligation of a contract has been impaired, unless some legislative act of the State has been upheld by the judgment sought to be reviewed," and after quoting with approval the statement
"So a by-law or ordinance of a municipal corporation may be such an exercise of legislative power delegated by the legislature to the corporation as a political subdivision of the State, having all the force of law within the limits of the municipality, that it may properly be considered as a law, within the meaning of this article of the Constitution of the United States."
In North American Storage Co. v. Chicago, 211 U.S. 306, which came to this Court from a Circuit Court of the United States, the question was presented whether a municipal ordinance was state action within the clause in the Fourteenth Amendment prohibiting "any State" from denying due process or equal protection. The Court said, p. 313:
"In this case the ordinance in question is to be regarded as in effect a statute of the State, adopted under a power granted by the state legislature, and hence it is an act of the State within the Fourteenth Amendment."
The construction which was put on the phrase "a statute of any State" in the jurisdictional provision by the decisions in Williams v. Bruffy, Ford v. Surget and Stevens v. Griffith did not stop with those cases, but has been approvingly followed and applied in later cases.
In Atlantic Coast Line R.R. Co. v. Goldsboro, 232 U.S. 548, this Court was asked to review on writ of error a judgment of the Supreme Court of North Carolina giving effect to a municipal ordinance over the objection that it was invalid under the Constitution of the United States. Mr. Justice Pitney, speaking for the entire court, sustained its jurisdiction and on that point said, p. 555:
"And any enactment, from whatever source originating, to which a State gives the force of law, is a statute of the State, within the meaning of the pertinent clause of § 709, Rev. Stat.; Judicial Code, § 237; which confers jurisdiction on this court. Williams v. Bruffy, 96 U.S. 176, 183."
Reinman v. Little Rock, 237 U.S. 171, came here from the Supreme Court of Arkansas on writ of error. The sole question involved was the validity of a municipal ordinance which the state court had sustained against the objection that it was in conflict with the Constitution of the United States. Mr. Justice Pitney again speaking for the entire court said, p. 176:
"The decision of the state court of last resort is conclusive upon the point that the ordinance under consideration is within the scope of the powers conferred by the state legislature upon the city council of Little Rock. It must therefore be treated, for the purposes of our jurisdiction, as an act of legislation proceeding from the law-making power of the State; for a municipal ordinance passed under authority delegated by the legislature is a state law within the meaning of the Federal Constitution; and any enactment, from whatever source originating, to which a State gives the force of law, is a statute of the State within the meaning of Judicial Code, § 237, which confers jurisdiction upon this court. Atlantic Coast Line v. Goldsboro, 232 U.S. 548, 555, and cases cited."
Zucht v. King, 260 U.S. 174, was brought here on writ of error solely on the ground that the state court had upheld a municipal ordinance against the contention that
"The validity of the ordinances under the Federal Constitution was drawn in question by objections properly taken below. A city ordinance is a law of the State within the meaning of § 237 of the Judicial Code as amended, which provides a review by writ of error where the validity of a law is sustained by the highest court of the State in which a decision in the suit could be had. Atlantic Coast Line R.R. Co. v. Goldsboro, 232 U.S. 548, 555."
Further applying the ruling in Williams v. Bruffy this Court repeatedly has held that an order of a state commission made in the exercise of delegated legislative authority is a statute of the State in the sense of the jurisdictional provision. Excerpts from some of the cases — all brought here from state courts on writs of error — will suffice to show the course of decision.
"Such an order, being legislative in its nature and made by an instrumentality of the State, is a state law within the meaning of the Constitution of United States and the laws of Congress regulating our jurisdiction." Lake Erie & Western R.R. Co. v. Public Utilities Commission, 249 U.S. 422, 424.
"The validity of the order prescribing the rates was directly challenged on constitutional grounds, and it was held valid by the highest court of the State. 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. The motion to dismiss will be denied." Bluefield Waterworks & Improvement Co. v. Public Service Commission, 262 U.S. 679,
"The cause is here upon writ of error. Considering the circumstances disclosed by the record we have no jurisdiction unless it affirmatively appears that in the court below there was duly drawn in question the validity of a statute or an authority exercised under the State because of repugnance to the Constitution, treaties or laws of the United States. Jud. Code, § 237, as amended Sept. 6, 1916. Under repeated rulings here, for jurisdictional purposes the order of the Commission must be treated as though an Act of the Legislature." Live Oak Water Users Ass'n v. R.R. Commission, 269 U.S. 354, 356.
"The authority of the Dock Commissioner and the Sinking Fund trustees, under the Act of 1871 [they exercised delegated legislative power], is such as to make the plan and the refusal equivalent to a statute of the State, and, assuming that it is in conflict with the grant and covenants of relators' deeds, it is a law of the State impairing a contract obligation under § 10, Article I, of the Federal Constitution. [Citing New Orleans Waterworks Co. v. Louisiana Sugar Refining Co., 125 U.S. 18; Williams v. Bruffy, 96 U.S. 176, 183; and other cases.] We have jurisdiction of the writ of error under § 237 of the Judicial Code." Appelby v. Delaney, 271 U.S. 403, 409.
A like view of an order, legislative in nature, of a state commission has been taken in other related cases. Grand Trunk Western Ry. Co. v. Railroad Commission, 221 U.S. 400, 403; Louisville and Nashville R.R. Co. v. Garrett, 231 U.S. 298, 318; Arkadelphia Milling Co. v. St. Louis Southwestern Ry. Co., 249 U.S. 134, 141; Oklahoma Natural Gas Co. v. Russell, 261 U.S. 290, 292.
In no case has the phrase "a statute of any State" in the jurisdictional provision been construed otherwise than as shown in the foregoing review. With its use elsewhere
It is said that the act of February 13, 1925, which amended the jurisdictional provision was enacted with the purpose of contracting the obligatory jurisdiction of this Court. We recognize that there was such a purpose and that effect should be given to it. But the act dealt with several jurisdictional provisions, including those relating to cases coming to this Court from the Circuit Courts of Appeals, the District Courts, the Court of Appeals of the District of Columbia and the Court of Claims. It shows that the purpose was to cut down and change our jurisdiction in particular respects and to leave it as before in others. We are concerned here with a particular jurisdiction, as to which there was no cutting down or change. The terms whereby it was defined in the original provision were retained, and thus it was left as before.
We accordingly hold that the ordinance in question is a statute of the State within the meaning of the jurisdictional provision, and therefore that this case is rightly here on writ of error.
The adoption and terms of the ordinance are not in dispute. Nor is it questioned that the city became obligated long before the ordinance to supply water power from its canal for the plaintiff's mill. But it is questioned that there was any engagement for a designated price or rate in perpetuity. Both courts below found for the city on this point. That finding is entitled to respect, but is not conclusive; for it rests with this Court in cases like this, where contract obligations are said to have been impaired by subsequent legislation contrary to the constitutional restriction, to determine whether there was a contract and what obligations arose from it. St. Paul Gas Light Company
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 § 237 of the Judicial Code the words "or an authority exercised under any State."
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. 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."
Our jurisdiction to review a judgment of a state court sustaining the validity of a municipal ordinance alleged to be repugnant to the Federal Constitution, was first invoked in Weston v. City Council of Charleston, 2 Pet. 449, 463-464. Section 25 of the Judiciary Act of 1789, which was then in force without amendment, authorized a review by writ of error in any case "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 such their validity, or where is drawn in question the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed by either party, under such clause of the said Constitution, treaty, statute or commission." The jurisdiction having been questioned, because of the nature of the proceeding, Mr. Chief Justice Marshall took occasion to specify the clause of § 25 on which he conceived the jurisdiction to rest:
"In this case the city ordinance of Charleston is the exercise of an `authority under the State of South Carolina,' `the validity of which has been drawn in question on the ground of its being repugnant to the constitution,' and `the decision is in favor of its validity'."
"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."
The Court would hardly have omitted to say that review might also have been had by virtue of the "statute" clause if it had been of opinion that a municipal ordinance could be properly so described.
The second of the categories mentioned in Home Insurance Co. v. City Council of Augusta, was eliminated, so far as the right to review by writ of error was concerned, by the Act of September 6, 1916, c. 448, § 2, 39 Stat. 726. In cases where the showing was merely that a title, right, privilege or immunity guaranteed by the Constitution had been claimed and denied, that Act provided that there could be no review except by certiorari. But as it left unchanged the clause regarding the validity of an authority, on which Mr. Chief Justice Marshall had based the power of this Court to review judgments sustaining municipal ordinances, our jurisdiction over such judgments remained unaffected. When, in 1925, the "authority" clause was
The Act of June 18, 1910, c. 309, 36 Stat. 539, 557, § 17 of which was embodied in the Judicial Code as § 266, declared that "no 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" should issue except upon a hearing before three judges as there provided. An unbroken line of decisions, beginning in 1911, has held that a municipal ordinance is not a statute within the meaning of that section. Sperry & Hutchinson Co. v. City of Tacoma, 190 Fed. 682; Cumberland Telephone & Telegraph Co. v. City of Memphis, 198 Fed. 955; Birmingham Water Works Co. v. City of Birmingham, 211 Fed. 497, affirmed, 213 Fed. 450; Calhoun v. City of Seattle, 215 Fed. 226; City of Des Moines v. Des Moines Gas Co., 264 Fed. 506; City of Dallas v. Dallas Telephone Co., 272 Fed. 410. See also Land Development Co. v. City of New Orleans, 13 F.2d 898, reversed on the merits, 17 F.2d 1016. The principal ground of these decisions, namely, "that the natural meaning of `statute of a state' is a statute or law directly passed by the Legislature of the state, and the natural meaning of `any officer of such state, is an officer whose authority extends throughout the state, and is not limited to a small district," (198 Fed. 955, 957) is, of course, equally applicable to § 237 of the Judicial Code. It cannot have been unknown to Congress. The construction had already been established when the Act of March 4, 1913, c. 160, 37 Stat. 1013, amended § 266 so as to make
A similar ruling was made in Board of Public Utility Commissioners v. Manila Electric R.R. Co., 249 U.S. 262, where this Court dismissed an appeal and a writ of error to review, under § 248 of the Judicial Code, a judgment of the Supreme Court of the Philippine Islands. That section, until amended by the Act of September 6, 1916, c. 448, 39 Stat. 726, 727, authorized review by writ of error or appeal, of a judgment of the highest court of the Philippine Islands where either the validity or the construction of a statute of the United States was involved. Reavis v. Fianza, 215 U.S. 16, 21-22; Gsell v. Insular Collector, 239 U.S. 93, 94-96. The Railroad challenged an order of the Commissioners purporting to be made in execution of an Act of the Philippine Commission authorizing the city of Manila to grant a franchise ordinance passed under the powers thereby granted. This Court dismissed the appeal and writ of error for want of jurisdiction, necessarily holding "that the mere construction by the court of the franchise ordinance, and its consequent ruling that the duty did not rest on the Railroad Company to give the free transportation which the orders of the Commissioners had directed to be given" did not involve either the construction or the validity of a statute of the United States.
Obviously, the statutes of territorial legislatures, the regulations of the Commissioners of the District of Columbia, and the Philippine statutes and ordinances bear a relation to acts of Congress that is wholly comparable to that borne by municipal ordinances to the statutes passed by the legislature of a State. Congress cannot have intended that in the Act of 1925, the phrase "statute of any State" should be read as including municipal ordinances within a State while, under like circumstances, the phrase "statute of the United States" does not include
Moreover, if municipal ordinances are deemed to be statutes of a State within the meaning of § 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 states 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.
The difference between a statute and an ordinance for purposes of appellate review — a difference which rests wholly on expediency — had been acted upon by Congress half a century earlier, when it undertook to deal with the congestion of business in this Court by regulating the
Prior to the Act of 1925, final judgments of a district or circuit court involving the constitutional validity of a municipal ordinance could be brought directly to this Court by writ of error or appeal under § 5 of the Court of Appeals Act, Act of March 3, 1891, c. 517, 26 Stat. 826, 827-828, and § 238 of the Judicial Code, because such review was authorized "in any case that involves the construction or application of the Constitution of the United States," and "in any case in which the constitution or law of a State is claimed to be in contravention of the Constitution of the United States." Davis & Farnum Manufacturing Co. v. City of Los Angeles, 189 U.S. 207, 216; Boise Artesian Water Co. v. Boise City, 230 U.S. 84, 90; see Standard Scale Co. v. Farrell, 249 U.S. 571, 577. And likewise a case involving the constitutional validity of an
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.
If, by striking out from § 237 of the Judicial Code the clause "or an authority exercised under any State," Congress did not exclude from review by writ of error cases involving the validity of municipal ordinances and commission orders, it wholly failed to accomplish what, in view of the statements made to it in regard to the
From the decision of Weston v. City Council of Charleston, 2 Pet. 449, 463-464, in which Mr. Chief Justice Marshall rested the jurisdiction of this Court to review the judgments of state courts involving the validity of municipal ordinances upon the clause "or an authority exercised under any State," to the passage of the Act of 1925, ninety-six years elapsed. During that period the Court wrote opinions in a multitude of cases in which that specific jurisdiction was exercised. In only two of them has there been found any statement that the jurisdiction could be sustained on the ground that a municipal ordinance is a statute of a State, within the meaning of § 25 of the Judiciary Act of 1789 or its later reenactments.
The only authority cited in support of the statement in the Goldsboro and Little Rock cases, Williams v. Bruffy, 96 U.S. 176, 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."
The dicta concerning our jurisdiction in Atlantic Coast Line R.R. Co. v. Goldsboro, and in Reinman v. Little