The question for decision is whether a tax laid pursuant to §§ 1316-1318 of the Tennessee Code of 1932 upon the Memphis Natural Gas Company's net income derived from sales of natural gas in Tennessee, during the years 1932 to 1935, violates the commerce clause, Const. U.S. art. 1, § 8, cl. 3.
The case comes here by appeal from a judgment of the Supreme Court of Tennessee, which sustained the tax and reversed a decree of the Tennessee chancery court enjoining its collection. Appellant contends that the case is properly an appeal, under section 237(a) of the Judicial Code as amended, 28 U.S.C. § 344(a), 28 U.S.C.A. § 344(a), because the validity of the Tennessee statute as applied to the facts of this case has been drawn in question. Cf. Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282, 42 S.Ct. 106, 66 L.Ed. 239. But appellant's bill of complaint, filed in the chancery court, alleged only that the assessment of the tax and the threatened levy violated its rights under the commerce clause. Our decisions have long since established that an attack upon a tax assessment or levy, on the ground that it infringes a taxpayer's federal rights, privileges or immunities, will not sustain an appeal under section 237(a). Jett Bros. Distilling Co. v. City of Carrollton, 252 U.S. 1, 40 S.Ct. 255, 64 L.Ed. 421; Miller v. Board of Com'rs of City and County of Denver, 290 U.S. 586, 54 S.Ct. 78, 78 L.Ed. 518; Baltimore National Bank v. State Tax Commission of Maryland, 296 U.S. 538, 56 S.Ct. 125, 80 L.Ed. 382; Irvine v. Spaeth, 314 U.S. 575, 62 S.Ct. 117, 86 L.Ed. — decided October 13, 1941. It is not enough that an appellant could have launched his attack upon the validity of the statute itself as applied; if he has failed to do so we are without jurisdiction over the appeal. The Judicial Code was intended to restrict our obligatory appellate jurisdiction to a narrow class of cases, and to foreclose an appeal as of right whenever the prescribed conditions have not been rigorously fulfilled.
It is true that when this case reached the Supreme Court of Tennessee the appellant included in its brief, which has been certified as part of the record here, a statement of its legal position which might serve as a challenge to the validity of the statute. But appellant has failed to establish that under Tennessee practice such a contention can be availed of if advanced for the first time in the appellate court, cf. Pennsylvania R. Co. v. Illinois Brick Co., 297 U.S. 447, 462, 463, 56 S.Ct. 556, 561, 80 L.Ed. 796; Jacobi v. Alabama, 187 U.S. 133, 135, 136, 23 S.Ct. 48, 49, 47 L.Ed. 106; Mutual Life Ins. Co. v. McGrew, 188 U.S. 291, 23 S.Ct. 375, 47 L.Ed. 480, 63 L.R.A. 33, and appellant's burden is to show affirmatively that we have jurisdiction. Chicago, Indianapolis, etc., Ry. Co. v. McGuire, 196 U.S. 128, 132, 25 S.Ct. 200, 201, 49 L.Ed. 413; cf. Lynch v. People of New York, 293 U.S. 52, 54, 55, 55 S.Ct. 16, 17, 79 L.Ed. 191; Enriquez v. Enriquez (No. 2), 222 U.S. 127, 130, 32 S.Ct. 64, 65, 56 L.Ed. 124; Brady v. Terminal Railroad Ass'n, 302 U.S. 678, 58 S.Ct. 134, 82 L.Ed. 523.
The first opinion rendered by the Supreme Court of Tennessee made no mention of any federal question, and in a supplemental opinion, the court stated only that 'the claim of federally protected right was decided adversely to complainant'. Since it does not appear that the validity of the statute was either drawn in question or passed upon in the trial court or deemed by the state supreme court to be in issue, we must dismiss the appeal for want of jurisdiction. Treating the papers on which the appeal was allowed as a petition for writ of certiorari, as required by section 237(c) of the Judicial Code as amended, 28 U.S.C. § 344(c), 28 U.S.C.A. § 344(c), certiorari is granted and we proceed to consider the merits of the case.