In order for this jurisdiction to be invoked, the court of appeals decision must be based squarely on a finding that a state statute relied upon by the appellant is contrary to federal law. If the decision rests upon state law grounds, appeal is improper. Public Service Comm. v. Batesville Tel. Co., 284 U. S. 6. As in the case of an appeal from a state court decision holding a state statute valid in the light of federal law, (28 U.S.C. $1257 (2), discussed at pp. 51-2, infra), a "state statute” in this context means every legislative action to which a state gives the force of law. See Williams v. Bruffy, 96 U. S. 176, 183; King Mfg. Co. v. Augusta, 277 U. S. 100, 104-105. Included are state constitutional provisions, state statutes, municipal ordinances, and orders of state administrative bodies exercising legislative power.

Where it appears that the court of appeals decision rests not only upon a holding that the state statute is invalid but also upon a wholly independent ground which is not subject to review by means of appeal under the section in question, the appeal would probably be dismissed. Cf. United States v. Hastings, 296 U. S. 188, 193. Moreover, although the statute does not say so, it has been held necessary to the exercise of the Supreme Court's jurisdiction over the case by way of appeal that the judgment or decree of a court of appeals be final. Slaker v. O'Connor, 278 U. S. 188, 189.

Special attention must be paid to the two limitations in 28 U.S.C. §1254 (2) that an appeal from a court of appeals decision "shall preclude review by writ of certiorari at the instance of such appellant, and the review on appeal shall be restricted to the Federal questions presented." The first limitation, precluding review by certiorari, means that if an appeal is proper and has been taken, certiorari will not thereafter be available. Bradford Electric Light Co. v. Clapper, 284 U. S. 221, 224. But the same case holds that if the appeal is dismissed as im

was to allow direct appeals from district court decisions holding federal statutes invalid, the broad language used also includes all other lower federal courts. An appeal of this sort from a court of appeals would be possible only when a district court decision sustaining the validity of a federal statute was reversed by a court of appeals; a district court ruling adverse to constitutionality would not reach the court of appeals but would go directly to the Supreme Court under $1252 itself. So far as is known, no cases from courts of appeals have been taken to the Supreme Court under this section.2 Accordingly it seems appropriate to treat this provision more extensively in relation to direct appeals from district courts, where it is more frequently employed. See pp. 20-23, infra.

The right to appeal under $1252 does not mean that the certiorari procedure is not also available in this class of cases. Since the Supreme Court is almost certain to grant certiorari where a federal statute has been held invalid, and since the procedure in petitioning for certiorari is not nearly as complicated as in appealing (compare Chapters V and VI, infra.), counsel may prefer to petition for certiorari.

Where state statute held unconstitutional. It is provided in 28 U.S.C. $1254 (2) that cases in courts of appeals may be reviewed "by appeal by a party relying on a State statute held by a court of appeals to be invalid as repugnant to the Constitution, treaties or laws of the United States, but such appeal shall preclude review by writ of certiorari at the instance of such appellant, and the review on appeal shall be restricted to the Federal questions presented."

2 It is conceivable that $1252 may be held applicable only to cases from district courts, since the Section was not needed to insure speedy review of cases in courts of appeals. But the Reviser's Notes, which specifically mention courts of appeals, indicate that the language of the Section was deliberately chosen so as to allow appeals from any federal court decisions holding federal laws invalid.

In order for this jurisdiction to be invoked, the court of appeals decision must be based squarely on a finding that a state statute relied upon by the appellant is contrary to federal law. If the decision rests upon state law grounds, appeal is improper. Public Service Comm. v. Batesville Tel. Co., 284 U. S. 6. As in the case of an appeal from a state court decision holding a state statute valid in the light of federal law, (28 U.S.C. $1257(2), discussed at pp. 51-2, infra), a "state statute" in this context means every legislative action to which a state gives the force of law. See Williams v. Bruffy, 96 U. S. 176, 183; King Mfg. Co. v. Augusta, 277 U. S. 100, 104-105. Included are state constitutional provisions, state statutes, municipal ordinances, and orders of state administrative bodies exercising legislative power.

Where it appears that the court of appeals decision rests not only upon a holding that the state statute is invalid but also upon a wholly independent ground which is not subject to review by means of appeal under the section in question, the appeal would probably be dismissed. Cf. United States v. Hastings, 296 U. S. 188, 193. Moreover, although the statute does not say so, it has been held necessary to the exercise of the Supreme Court's jurisdiction over the case by way of appeal that the judgment or decree of a court of appeals be final. Slaker v. O'Connor, 278 U. S. 188, 189.

Special attention must be paid to the two limitations in 28 U.S.C. §1254 (2) that an appeal from a court of appeals decision "shall preclude review by writ of certiorari at the instance of such appellant, and the review on appeal shall be restricted to the Federal questions presented." The first limitation, precluding review by certiorari, means that if an appeal is proper and has been taken, certiorari will not thereafter be available. Bradford Electric Light Co. v. Clapper, 284 U. S. 221, 224. But the same case holds that if the appeal is dismissed as im

provident, the Court is still free to consider a timely application for certiorari on its own merits.

If an appeal under $1254 (2) is found to have been improvidently taken, the Supreme Court has no authority to treat the appeal papers as a petition for certiorari to the court of appeals. The absence of such authority is in sharp contrast to the express provision of 28 U.S.C. §2103, requiring the Court to treat an improvident appeal from a state court as an attempt to secure certiorari. (Infra, p. 58). Hence, where there is any question as to the jurisdictional propriety of an appeal from a court of appeals decision, the appellant is well advised to file a separate petition for certiorari to review the decision.

The second limitation in §1254(2), restricting review on appeal to the federal questions presented, can be troublesome in cases involving various other unrelated issues. The non-federal questions quite plainly cannot be reviewed by the Supreme Court on the appeal. It is not at all clear, however, whether the reviewable federal questions include only those relating to the validity of the state statute under federal law or whether they also cover federal questions in the case pertaining to other matters. And where an appeal is taken as to the issue of the validity of the state statute, it has yet to be decided whether the literal language of the statute implies that the appellant is thereby precluded from obtaining certiorari to review the other issues in the case.

The only safe way to avoid the unlitigated hazards just mentioned, in a case which involves other issues which the Supreme Court might be induced to review, is for the appellant to discard his right to appeal and to confine himself to an application for certiorari. There is no question as to the Supreme Court's power to consider by way of certiorari what it could have determined on an appeal, as well as all the other questions in the case. But this course risks the possibility that the Court,

in the exercise of its discretion, may deny the petition for certiorari even as to the appealable question and thus diminish the chance of securing review of that issue.

Certificates

The Supreme Court is given jurisdiction by 28 U.S.C. $1254(3) to review cases in federal courts of appeals by means of "certification at any time by a court of appeals of any question of law in any civil or criminal case as to which instructions are desired, and upon such certification the Supreme Court may give binding instructions or require the entire record to be sent up for decision of the entire matter in controversy."

Jurisdiction by way of certification is not invoked by the litigant but only at the instance of a court of appeals when it is in doubt as to a point of law and desirous of instructions. The subject of certification is discussed in Chapter VII, (pp. 243-9, infra).

B. Decisions of United States District Courts

The governing statutes provide for direct appeals from federal district courts to the Supreme Court in a few special types of cases. Such appeals lie in the following situations:

1. Where an ordinary one-judge district court has held a federal statute unconstitutional (28 U.S.C. §1252);

2. Where an ordinary one-judge district court has entered one of certain types of judgments adverse to the United States in criminal cases (Criminal Appeals Act, as amended, 18 U.S.C. §3731);

3. Where a one-judge or a three-judge district court enters a judgment in a civil action brought by the United States to enforce the antitrust laws, the Interstate Commerce Act or