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EX PARTE BUDER, 271 U. S. 461 (1926)

U.S. Supreme Court

Ex Parte Buder, 271 U.S. 461 (1926)

Ex Parte Buder

No. ___ Original

Motion submitted March 1, 1926

Denied June 1, 1926

271 U.S. 461


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. 463.

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. 464.

3. Section 266 of the Judicial Code, as so amended, permits direct appeals to this Court from decrees of injunction, permanent or

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. 464.

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. 465.

Motion denied.

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.

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