It averred that section 671 of the Civil Code | of California, providing that "any person, whether citizen or alien, may take, hold, and dispose of property, real or personal, within this state;" and section 672, providing: "If The first ten of these questions a nonresident alien takes by succession, he set forth that the circuit court susmust appear and claim the property within tained the motion to dismiss for want of jufive years from the time of succession, or be risdiction to entertain the suit, and ordered barred;" were void as to aliens, because en-it to be dismissed accordingly. The remaincroachments upon the treaty-making power ing five contained no statement as to their of the United States, and in conflict with sec- disposition. tion ten of article one of the Constitution of the United States, and with section 1978 of the Revised Statutes, and that therefore those courts were without jurisdiction; and also that when the state courts adjudged in favor of Florence because of Blythe's action under section 1387 of the Code, reading, "Every illegitimate child is an heir of any person who, in writing, signed in the presence of a competent witness, acknowledges himself to be the father of such child," that section was made to operate in favor of Florence outside of the geographical jurisdiction and boundaries of California, and, as thus applied, was in violation of section ten, article one, of the Federal Constitution, and of section 1978 of the Revised Statutes, and an invasion of the jurisdiction of international intercourse, wherefore the adjudication 1505 was without *jurisdiction; and complainnts further said that sections 671, 672, and 1337 of the Code were in conflict with treaties between the United States and Russia, France, Switzerland, and England, and with the Constitution of the United States; and hence that the circuit court had jurisdiction "on the ground that the construction and application of the Federal Constitution are involved as well as on the ground of diverse citizenship of the parties, and because said section of said Civil Code violated the Federal Constitution as herein stated." On the same day, December 22, 1897, the final decree was entered in the case, the third para- We have heretofore determined that review graph of which was as follows: "That the by certificate is limited by the act of March original 'complaint' of the complainants, 3, 1891, to certificates by the circuit courts, John W. Blythe and Henry T. Blythe, filed made after final judgment, of a question in December 3d, 1895, and also the 'amended issue as to their own jurisdiction; and to complaint' of said complainants, filed Decem-certificates by the circuit courts of appeal of ber 12th, 1895, and also the 'second amended questions of law in relation to which the adand supplemental bill in equity' of said com- vice of this court is sought. United States plainants, filed January 14th, 1897, and v. Rider, 163 U. S. 132 [41: 101]. also the complainants' third amended and supplemental bill, filed by leave of court this 22d of December, 1897, after the rendition of the decision of the court upon the matters determined herein, but before the signing of this decree, be, and the same are each hereby, finally dismissed as against each and all of the parties named therein respectively as defendants, and in all respects and in every particular, for want of either Federal or equity jurisdiction and without prejudice to complainants' right to bring or maintain an action at law."

*Mr. Chief Justice Fuller delivered the[506] opinion of the court:

Appeals or writs of error may be taken directly from the circuit courts to this court in cases in which the jurisdiction of those courts is in issue, that is, their jurisdiction as Federal courts, the question alone of jurisdic tion being certified to this court. The cir-[507] cuit court held that the remedy was at law and not in equity. That conclusion was not a decision that the circuit court had no jurisdiction as a court of the United States. Smith v. McKay, 161 U. S. 355 [40: 731]; Blythe Company v. Blythe [mem.] 172 U. S. 644 [post, -).

fifteen questions of law, which it was stated arose "upon the face of said third amended and supplemental bill and upon said motion" namely the motion to dismiss.

It appears from the opinion of the circuit[506] judge that the various bills were dismissed on the grounds: First, that the jurisdiction of the circuit court could not "be maintained because the state court, in the exercise of its general jurisdiction, determined the eligibility of the defendant Florence to inherit an estate which that court was called upon to distribute under the laws of the state; and that "the other propositions contended for by complainants are for the same reason deemed insufficient to take this case out of the general rule that after a court of a state, with full jurisdiction over property in its possession, has finally determined all rights to that property, a court of the United States will not entertain jurisdiction to annul such decree and disturb rights once defiritely determined."

Second, that the remedy of complainants, if any, was at law, and not in equity.

Messrs. W. H. H. Hart, Frederick D. McKenney, Robert Y. Hayne, John Garber, and A. R. Cotton for appellees, in favor of motion to dismiss or affirm.

Messrs. S. W. Holladay, E. B. Holladay, Jefferson Chandler, and L. D. McKisick for appellants in opposition to moticn.

From this decree John W. Blythe and Henry T. Blythe prayed an appeal to this court, which was allowed and bond given March 2, 1898, and on the same day the circuit judge filed a certificate, certifying "to the Supreme Court of the United States pur-diction because the circuit court was a Fedsuant to the judiciary act of March 3, 1891," eral court, but a decision that the circuit 173 U. S. U. S., Book 43. 50 785

The circuit court dismissed the bills on another ground, namely, that the judgments of the state courts could not be reviewed by that court on the reasons put forward. This, also, was not in itself a decision of want of juris

court was unable to grant relief because of
the judgments rendered by those other courts.

If we were to take jurisdiction on this JAMES AMES, United States Marshal, etc.
certificate, we could only determine whether
the circuit court had jurisdiction as a court
of the United States, and as the decree rested
on no denial of its jurisdiction as such, but
was rendered in the exercise of that jurisdic- Ex parte: In the Matter of GEORGE R.
tion, it is obvious that this appeal cannot be
maintained in that aspect.


NICHOLS, Petitioner.

Even if the decree had been based solely on the binding force of the state judgments, still we cannot hold that an appeal directly to this court would lie.

Nor can we take jurisdiction on the ground that the case involved the construction or application of the Constitution of the United States, or that the validity or construcion of



a treaty was drawn in question, or that the JOHN C. AMES, United States Marshal, etc.
Constitution or law of a state was claimed to
be in contravention of the Constitution of the

United States, within the meaning of the ju- CHARLES H. INGWERSEN, Plff. in Err.,
diciary act of March 3, 1891.


The circuit court by its decree passed on none of these matters, unless it might be said that they were indirectly involved in holding the judgments of the state courts to be a bar; and, moreover, the decree rested on the independent ground that the remedy was at law.


The superior court of San Francisco was a court of general jurisdiction, and authorized to take original jurisdiction "of all matters of probate," and the bill averred that Thomas H. Blythe died a resident of the city and county of San Francisco and left an estate therein; and that court repeatedly decreed [508]*that Florence was the heir of Thomas H. Blythe, and its decrees were repeatedly affirmed by the supreme court of the state. So far as the construction of the state statutes and state Constitution in this behalf by the state courts was concerned, it was not the province of the circuit court to re-examine their conclusions. As to the question of the capacity of an alien to inherit, that was necessarily involved in the determination by the decrees that Florence did inherit,and that judgment covered the various objections in respect of section 1978 of the Revised Statutes, and the tenth section of article one of the Constitution of the United States, and any treaty relating to the subject.


We are not to be understood as intimating in the least degree that the provisions of the California Code amounted to an invasion of the treaty-making power, or were in conflict with the Constitution or laws of the United States, or any treaty with the United States; but it is enough for the present purpose that the state courts had concurrent jurisdiction with the circuit courts of the United States, to pass on the Federal questions thus intimated, for the Constitution, laws, and treaties of the United States are as much a part of the laws of every state as its own local laws and Constitution, and if the state courts erred in judgment, it was mere error, and not to be corrected through the medium of bills such as those under consideration.

Appeal dismissed.




(See S. C. Reporter's ed. 509-527.)
War revenue act—provisions of—said act le-
gal-power of Congress-tax on certain
sales, a duty or excise upon the privilege-
sales of merchandise at an exchange-uni-
formity of tax-written memorandum to
be made -sales at stock yards.

Under the act of June 13, 1898, to provide means to meet war expenditures, a member of a board of trade selling for immediate delivery products or merchandise without making a memorandum, or making a memorandum but omitting to put stamps on it, or making a sale for future delivery and failing to put stamps on the memorandum, with intent to evade the provisions of the act,-is guilty of a misdemeanor.


A seller at stock yards, delivering a memorandum but omitting to affix the stamps thereto, with like intent, is also guilty of a misde


Said act of June 13, 1898, is not illegal as imposing a direct tax, or because the same is not apportioned as required by the Constitution; or because the tax imposed is a stamp tax on documents not required by the state law to render the sale valid; or because Congress has no power to require a written memorandum to be made in order to place a stamp thereon.


In searching for proper subjects of taxation to raise moneys for the support of government, Congress has a right to recognize the manner in which the business of the country is transacted; and this court has the right to consider such facts without particular proof of them.

5. The tax is a duty or excise laid upon the
privilege, opportunity, or facility offered at
boards of trade or exchanges for the trans-
action of the business mentioned in the act,
and is not a direct tax within the meaning of
the Constitution.


A sale at an exchange forms a proper basis for classification which excludes sales made elsewhere from taxation; and the classification being proper and legal, there is that unlformity which the Constitution requires.


Nor is there a want of uniformity because the tax is imposed on those only who make such sales, and not on those who make purchases; and upon those who sell products


order made by the circuit court of the Unit
ed States for the northern district of Illi
nois, discharging a writ of habeas corpus
and remanding the petitioner to the custody
of the marshal. The petition to the circuit
court for the writ alleged that the petitioner
Nicol had been convicted in the United
States court for the northern district of Illi-

nois, upon an information duly filed charg
ing him with selling, at the Chicago Board
of Trade and at its rooms, two carloads of
oats, "without then and there making and
delivering to the buyer any bill, memoran-
dum, agreement, or other evidence of said
sale, showing the date thereof, the name of

[Nos. 435, 4 Original, 625, and 636.]

Decided April 3, 1899.

Argued and Submitted December 13, 14, 1898. the seller, the amount of the same, and the matter or thing to which it referred, as required by the act of Congress," above mentioned. He was sentenced to pay a fine and to be imprisoned until paid. He refused to shai. That part of the act referring to the pay, and was taken into custody by the marmaking and delivering of a bill or memorandum, etc., the petitioner claimed was unconstitutional. The circuit court, after argument, held the law valid and the conviction legal.

or merchandise, and not those who sell bonds,
stocks, etc.

8. Congress has power to require the written memorandum to be made as a means for identifying the sale and for collecting the tax by means of the required stamp, and for that purpose to secure by proper penalties the making of the memorandum.

9. The statute covers sales made at union

stock yards; it is a "similar place" to an ex

change or board of trade within the meaning

of the statute.

The first of the above-named cases is an ap peal from an order of the Circuit Court of the United States for the Northern District of Illinois discharging a writ of habeas corpus and remanding the petitioner, James Nicol, to the custody of the marshal under a conviction for violation of the war revenue act for selling, at the Chicago Board of Trade, certain merchandise without making a memorandum or bill of such sale, as required by said act. Affirmed.

The second of said cases, No. 4 Original, is an application for leave to file a petition for a writ of habeas corpus to bring before the court the petitioner, George R. Nichols, who was convicted under said act of Congress for selling merchandise at said Board of Trade, and making and delivering a bill and memorandum of the sale without affixing the proper internal revenue stamps thereon. Petition for writ of habeas corpus denied.

The third of said cases, No. 625, is an ap;
peal to this court from an order of the said

circuit court of the United States discharg-
ing a writ of habeas corpus and remanding
to custody the petitioner, Skillen, who was
convicted for selling merchandise at said
Board of Trade, and unlawfully failing and
refusing to make and deliver to the buyer
any bill or memorandum as required by said
revenue act. Affirmed.

The last of said above cases, No. 636, is a
writ of error to the United States District
Court for the Northern District of Illinois
to review a conviction of said Charles H. Ing-
wersen for making a sale of certain cattle
at said stock yards and delivering the same
without making any written memorandum,
etc., as required by said revenue act. Af

The above cases were all considered together.

Statement by Mr. Justice Peckham: [510] *These cases involve the validity and construction of some of the provisions of section 6, and a portion of schedule "A," therein referred to, of the act of Congress approved June 13, 1898 (30 Stat. at L. 448), entitled "An Act to Provide Ways and Means to Meet War Expenditures, and for Other Purposes," commonly spoken of as the War Revenue Act. The cases come before the court in this way:

No. 435 is an appeal to this court from an

No. 4 Original is an application to this court for leave to file a petition for a writ the petitioner George R. Nichols, and for a of habeas corpus to bring before the court rule requiring the marshal for the northern district of Illinois, in whose custody the petitioner is, to show cause why the writ should not issue. The petition states that Nichols was convicted and sentenced, under the act of Congress above mentioned, upon an information filed in the district court of the United States for the northern district of Trade, of which he was then a member, of Illinois, for selling at the Chicago Board for immediate delivery, to one Roloson, also thousand pounds of hams, then in Chicago, a member of such board, *ten tierces, or three[511] at a price named, amounting to $195, and on the sale unlawfully making and delivering to Roloson a bill and memorandum of the sale showing the date thereof, the name of the seller, the amount of the same, and without having the proper stamps affixed to the matters and things to which it referred, said bill or memorandum denoting the internal revenue accruing upon said sale, bill, or memorandum, as required by law, but on the contrary unlawfully refusing and neglecting to affix any such stamps to said bill rendered a verdict finding the petitioner or memorandum. Upon the trial the jury the court sentenced him to pay a fine of guilty as charged in the information, and $500 and to be committed to the county jail until such fine and costs should be paid. The petitioner refused to pay the fine and an order of commitment was made out and placed in the hands of the marshal, who arrested the petitioner and he is now in the custody of the marshal. The petitioner upon the trial claimed that the act in regard to the matters named in the information was unconstitutional, and therefore no offense was charged in the information; that the court had no jurisdiction to try him, and that his conviction and subsequent arrest

and detention were wholly without jurisdic- | 717; Ex parte Royall, 117 U. S. 248, 29 L. ed. 870; Re Coy, 127 U. S. 758, 32 L. ed. 281; Neilsen, Petitioner, 131 U. S. 182, 33 L ed. 120.

tion. The petitioner gives as a reason for his application to this court for the writ of habeas corpus that one James Nicol (the appellant in No. 435) had been convicted of substantially the same offense in the district court for the northern district of Illinois, and that he had made application for a writ of habeas corpus to the circuit court held in that district, which court, after a hearing upon the writ, decided against Nicol, and in favor of the constitutionality of the act of Congress herein questioned, and the petitioner herein alleges that it would be a vain act to apply for a writ of habeas corpus to the same circuit court which had already, after a hearing, decided the question in a way unfavorable to the claims of the petitioner herein.

No. 625 is also an appeal to this court from an order of the circuit court of the United States for the northern district of Illinois, discharging a writ of habeas cor[512]pus and remanding the petitioner Skillen to the custody of the marshal. The petitioner was convicted upon an information of the same nature as is above set forth in No. 435, excepting that the information in this case alleged that the contract was for future delivery of 5,000 bushels of corn, and that Skillen unlawfully failed and refused to make and deliver to the buyer any bill or memorandum as required by the act. The petitioner was convicted upon a trial had upon such information, and the court imposed upon him a fine in the sum of $500 besides costs, and directed that he should be committed to the county jail until such fine and costs were paid. The same proceedings were then taken as are set forth in No. 435.

No. 636 is a writ of error to the district court of the United States for the northern district of Illinois, to review a conviction of the plaintiff in error upon an information charging him with making a sale of certain cattle at the Union Stock Yards, Chicago, an delivering the same without making any written memorandum, etc., as required by the act of Congress. The information also charged in a second count a sale, at the same place, of certain live stock and a delivery of a memorandum of the kind mentioned in the act of Congress and a failure and refusal to affix the stamps as provided for in such act. Upon the trial a nolle prosequi was duly entered upon the first count. The plaintiff in error claims that the act of Congress is unconstitutional on the same grounds mentioned in the other cases, and sets up as a special and separate defense that a sale at the stock yards is not included in the act of Congress, as it is not an "exchange or board of trade or other similar place," within the meaning of that act.

Messrs. Henry S. Robbins and John G. Carlisle, for appellant in No. 435 and No. 625, and for petitioner in No. 4 Original:

Habeas corpus is the proper remedy where the prisoner is in custody upon conviction for an offense created by an unconstitutional law.

Ex parte Siebold, 100 U. S. 371, 25 L. ed.

The circuit court having in both cases upheld the constitutionality of the present law, and having, in the case of James Nicol, denied a writ of habeas corpus, an application by George R. Nichols to that court would have been useless; hence, an application by him directly to this court is in accordance with its practice.

Ex parte Terry, 128 U. S. 289, 32 L. ed. 405; Sawyer's Case, 124 U. S. 200, 31 L. ed. 402; Ex parte Bain, 121 U. S. 1, 30 L. ed. 849; Re Tyler, 149 Ú. S. 164, 37 L. ed. 689; Re Ayers, 123 U. S. 443, 31 L. ed. 216.

The tax in question, if an indirect tax, is a stamp tax upon documents. It is not a privilege tax. A commercial exchange is a voluntary association (the Chicago Board of Trade, although incorporated, has been decided to be such-Chicago Bd. of Trade v. Nelson, 162 Ill. 431), and neither the privilege of being a member of the exchange nor of having one's property sold there, nor of being a seller there, is a privilege in the legal sense that is a taxable privilege.

Columbia v. Guest, 3 Head, 414; Cooley, Taxation, 2d ed. 571; Charleston v. Oliver, 16 S. C. 47.

Nor is this an occupation tax-such tax being imposed elsewhere in this act upon brokers, and the law not presuming double taxation.

Cooley, Taxation, 227; Montgomery Coun ty Bd. of Revenue v. Montgomery Gaslight Co. 64 Ala. 273.

Nor is it a tax on sales, which would in reality be a tax on the commodity sold.

Cook v. Pennsylvania, 97 U. S. 566, 24 L. ed. 1015; Brown v. Maryland, 12 Wheat 419, 6 L. ed. 678.

For agreements to sell for future delivery are taxed, and in these there is usually no commodity to tax, such contracts, although generally settled by the payment of differ ences, being legal (Bibb v. Allen, 149 U. S. 499, 37 L. ed. 827; Miles v. Andrews, 40 Ill. App. 155), and, whether legal or not, would be taxable.

License Tax Cases, 5 Wall. 463, 18 L. ed. 497. Almy v. California, 24 How. 169, 16 L. ed. 644, as construed by Woodruff v. Parham, 8 Wall. 123, 19 L. ed. 382, is not in conflict with the proposition that this is a stamp tax only.

Congress is without constitutional power to require written memoranda of intrastate contracts or transactions. This act, by imposing a penalty and creating a misdemeanor, prohibits oral sales or contracts of sales, and thereby interferes with intrastate commerce this regardless of whether it makes the sale void or not.

Brown v. Maryland, 12 Wheat. 433, 6 L. ed. 683.

Congress cannot regulate intrastate commerce.

United States v. De Witt, 9 Wall. 44, 19 L. ed. 594; Lane County v. Oregon, 7 Wall. 76, 19 L. ed. 74.

173 U. S.

[blocks in formation]

Congressional interference with state commerce, in whatever form or degree, is to be as much condemned as has been state interference, in whatever form or degree, with interstate or foreign commerce.

Henderson v. New York, 92 U. S. 271, 23 L. ed. 549; Webber v. Virginia, 103 U. S. 350, 26 L. ed. 567; Pickard v. Pullman Southern Car Co. 117 U. S. 35, 29 L. ed. 786; Robbins v. Shelby County Taxing Dist. 120 U. S. 489, 30 L. ed. 694, 1 Inters. Com. Rep. 45; Moran v. New Orleans, 112 U. S. 69, 28 L. ed. 653; Leloup v. Port of Mobile, 127 U. S. 641, 32 L. ed. 312, 2 Inters. Com. Rep. 134; Almy v. California, 24 How. 169, 16 L. ed. 644; Guy v. Baltimore, 100 U. S. 434, 25 L. ed. 743.

This interference with oral contracts within the state does not "consist with the spirit of the Constitution."

Moore v. Moore, 47 N. Y. 467, 7 Am. Rep. 466; Sammons v. Halloway, 21 Mich. 163, 4 Am. Rep. 465; Craig v. Dimock, 47 Ill. 310; Davis v. Richardson, 45 Miss. 500, 7 Am. Rep. 732; Forcheimer v. Holly, 14 Fla. 243; Sporrer v. Eifler, 1 Heisk. 633; Duffy v. Hobson, 40 Cal. 240, 6 Am. Rep. 617; Carpenter v. Snelling, 97 Mass. 452.

Such legislation, if independent of a tax law, would be class legislation, because depriving some, but not all, of the right to contract orally.

Millett v. People, 117 Ill. 298, 57 Am. Rep. 869; Harding v. People, 160 Ill. 459, 32 L. R. A. 445; Frorer v. People, 141 Ill. 171, 16 L. R. A. 492; State v. Goodwill, 33 W. Va. 179, 6 L. R. A. 621; Godcharles v. Wige man, 113 Pa. 431; Kuhn v. Detroit, 70 Mich. 537; Re Jacobs, 98 N. Y. 98, 50 Am. Rep. 636; Butchers' Union S. H. & L. S. L. Co. v. Crescent City L. S. L. & S. H. Co. 111 U. S. 746, 28 L. ed. 585; Barbier v. Connolly, 113 U. S. 27, 28 L. ed. 923; Yick Wo v. Hopkins, 118 U. S. 356, 30 L. ed. 220.

If the right to thus discriminate respecting oral contracts be sustainable at all, it can only be when it is necessary to taxation, and not where, as here, it is neither necessary nor usual. In the latter case it is clearly contrary to the "spirit of the Constitution." It takes from a taxpayer, as a part of his tax, his constitutional right to contract or trade orally as others do.

A liberal construction is to be resorted to for the protection of constitutional rights.

Boyd v. United States, 116 U. S. 635, 29 L. ed. 753; Monongahela Nav. Co. v. United States, 148 U. S. 325, 37 L. ed. 468; Oakley v. Aspinwall, 3 N. Y. 547.

This tax, if a stamp or other indirect tax, violates the rule of uniformity.

The Constitution requires, not merely "geographical uniformity," but practical uniformity between taxpayers, which means, not that all persons or all property must be taxed, if any are, but that all persons similarly situated, and all property of the same kind, be proportionately taxed, if any such person or property is taxed.

This construction is required by the state of history and political economy at the time of the adoption of the Constitution, as well as by the circumstances attending the insertion of this uniformity clause in the Constitution.

The power to tax implies the power to destroy.

McCulloch v. Maryland, 4 Wheat. 431, 4 L. ed. 607; Weston v. Charleston, 2 Pet. 449, 7 L. ed. 481; Citizens' Sav. & L. Asso. v. Topeka, 20 Wall. 655, 22 L. ed. 455.

Uniformity has been defined as above by this court in

United States v. Singer, 15 Wall. 111, 21 L. ed. 49; Head Money Cases, 112 U. S. 580, 28 L. ed. 798.

This rule of taxation requires an essential difference between the subjects taxed and those untaxed.

Pacific Exp. Co. v. Siebert, 142 U. S. 339, 35 L. ed. 1035, 3 Inters. Com. Rep. 810; Senior v. Ratterman, 44 Ohio St. 661.

This does not arise from the mere difference of locality of a sale of the thing taxed, nor from greater convenience attending the making of such sale.

Messrs. John S. Miller and Merritt Starr, for plaintiff in error in No. 636:

The words "at any exchange or board of trade or other similar place," in Schedule A of the act in question, refer to the place of sale; and they mean the room or floor or place provided by associations of that kind for trading among their members, and to the privileges of which only members are admitted. And the tax levied is only upon sales at those places.

This is a fact of common knowledge, and appears in adjudged cases and works of standard authority; and it must be held to have been known to and in contemplation of Congress in passing the act in question. It appears in the following, among other, authorities:


Dos Passos, Stock Brokers, 88, 208; Melsheimer & Laurence Stock Exchange, 1, 2; Bisbee & Simons, Produce Exchange, 71; Speight v. Gaunt, L. R. 22 Ch. Div. 727; Leech v. Harris, 2 Brewst. (Pa.) 575; Metropolitan Grain & Stock Exchange v. Chicaga Bd. of Trade, 15 Fed. Rep. 849.

The words "or similar place" in Schedule A of the act do not bring within the tax but exclude therefrom, sales at any different place.

Harlow v. Tufts, 4 Cush. 453.

The Union Stock Yards in Chicago, or its pens, in one of which the sale in question

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