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33

statutes are there subject to probate proceed-
ings and inheritance taxes.

On Motion for Leave to File Original Bill.
file an original bill against Abraham Slim-
Motion by the State of Iowa for leave to
mer, Jr., and others. Motion denied.

Mr. H. M. Havner, of Des Moines, Iowa, for complainant.

Mr. Thomas D. O'Brien, of St. Paul, Minn.,

Mr. Ray Campbell, of Wichita, Kan, for for defendants.

antifs in error.

lessrs. J. L. Hunt and James P. Coleman,

Topeka, Kan., and T. F. Railsback, Kansas City, Kan., for defendant in error.

Vemorandum opinion by Mr. Justice

LIETNOLDS.

De validity of chapter 371, Laws of Kan315-"An act in relation to the sale produce on commission"-is chalby certain grain dealers carrying on in that state. It forbids the sale tam produce on commission without an Sense, to be procured from the State Agriculture upon a proper showing Bareter, responsibility, etc., and a tioned to make honest accounting. tes required.

Pattis in error maintain that the 3 dass legislation which abridges and privileges, that it deprives the epal protection of the laws and ather property without due process of Da vilation of the Fourteenth

*Mr. Justice BRANDEIS delivered the opinion of the Court.

With a view to collecting ultimately at
least $13,750 for taxes which the state o
Iowa alleges it is entitled to have assessed
and levied against the property of Abradam
Slimmer, deceased, it asks leave to the ta
this court an original bill of complaint
against the state of Minnesota. Abraham
Slimmer, Jr., and Charles Bechhoefer, cik
zens of Minnesota, and Adolph Lipman, a
citizen of Wisconsin. The bill alleges in sub-
stance as follows:

(1) Slimmer, who had for many years been
a resident of and domiciled in Iowa, died
there testate on August 15, 1917. leaving
personal property valued at $350,000, and
consisting, with the exception of personal
effects and a few United States Liberty
Bonds, wholly of promissory notes. All of
this property, except the personal effects
and one note for $3,000, was then in Minnes
sota in the possession of Slimmer, Jr., who
had had custody of the decedent's property
for at least five years before his death. The
$3.000 note was brought by him and Bech-
boeter into Minnesota Immediately there-
after.

Anticy the purpose of the state was to
veeran els indident to the business
trasa memmans in farm products
21 May Ermer opinions have
acons upon powers of
(2) For the period of at least five years
ke the steering matters of this kind before his death, Slimmer, Sr., had conspired
Poza de present range falls to How it, Jr. and Bechhoefer to de-
de e le transcended fraud the state of Iowa of taxes which, by
at Tg Denen & Devta, Sf his domicile in Iowa, might and
should have been assessed there against his
Brazee. Impery ring his fetime; and to this

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ad arranged with them that his will fe and are obey should be probated Kanera had aced in the custody of Gimmer in. in Minnesta, all his property, TIR 350 08 Jeriana, effects and the one note SA and had concealed his property

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, in determinoils and gasnot be lightly mining whethproducts, movtitutes burden e character of nue, instead of

NOTICE-STATE

for inspection cate of Minneso

and Indexes

$152

*Mr. Justice BRANDEIS delivered the weigher does not operate to promote him opinion of the Court. automatically to the statutory office of weigher. And the fact that his appointment as clerk in 1909 was made as a part of a reorganization of the service, whereby four of the five positions of United States weigher were abolished, is immaterial; except as showing even more clearly that it was the intention not to appoint him weigher. No contention is, or could successfully be, made that the weighing should be paid for as an extra service, even if it was not a duty attaching to his position as clerk. See United States v. Garlinger, 169 U. S. 316, 18 Sup. Ct. 364, 42 L. Ed. 762.

[1] When an office with a fixed salary has been created by statute, and a person duly appointed to it has qualified and entered upon the discharge of his duties, he is entitled during his incumbency to be paid the salary prescribed by statute; and effect will not be given to any attempt to deprive him of the right thereto, whether it be by unauthorized agreement, by condition, or otherwise. United States v. Andrews, 240 U. S. 90, 36 Sup. Ct. 349, 60 L. Ed. 541; Glavey v. United States, 182 U. S. 595, 21 Sup. Ct. 891, 45 L. Ed. 1247.

We have, therefore, no occasion to consider whether effect should be given to the agreement by the intestate not to make claim to compensation as acting weigher, or *to his acceptance of the lower compensation without protest during the entire term of his service; nor need we consider the effect of section 2 of the act of July 31, 1894, c. 174 (28 Stat. 162, 205 [Comp. St. 1916, § 3231]), which provides that—

Section 3 of the Act of July 26, 1866, c. 269 (14 Stat. 289), provides, that weighers at the port of New York shall receive an annual salary of $2,500. Section 2621 of the Revised Statutes (Comp. St. 1916, § 5359) authorizes collectors to employ, with the approval of the Secretary of the Treasury, weighers at the several ports; and it does not prescribe their number. Section 2634 authorizes the Secretary of the Treasury to fix the number and compensation of clerks to be employed by any collector. The statutes ap pear to have made no specific provision for the appointment of assistant or acting United States weighers. On May 12, 1909, plaintiff's intestate (who had been appointed on August 1, 1896, "assistant weigher of customs" at a salary, "when employed," of $3 per diem, and had later received a like appointment at $4 per diem) was appointed by the collector "clerk, class 3, new office, to act PAYNE et al. v. STATE of KANSAS ex rel. BREWSTER, Atty. Gen. as acting U. S. weigher" with compensation

"No person who holds an office the salary or to the sum of two thousand five hundred dollars annual compensation attached to which amounts shall be appointed to or hold any other office to which compensation is attached unless specially heretofore or hereafter specially authorized thereto by law."

The judgment of the Court of Claims is affirmed.

No. 49.

(248 U. S. 112)

7(1)-CLASS LEGISLATON-REGULATION OF COMMISSION DEALERS IN FARM PRODUCE. Laws Kan. 1915, c. 371, forbidding sale of farm produce on commission without annual license from state board of agriculture, on proper showing of character, responsibility, etc., is not a violation of Const. U. S. Amend. 14, as abridging rights and privileges of dealers as citizens of United States. 2. CONSTITUTIONAL LAW 240(1)—LICENSES 7(1)-EQUAL PROTECTION OF LAWS-REGULATION OF COMMISSION DEALERS.

at the rate of $1,600 per annum. On August (Argued Nov. 15, 1918. Decided Dec. 9, 1918.) 18, 1911, he received a like appointment as clerk, class 4, at the rate of $1,800 per annum. He continued to perform the duties 1. CONSTITUTIONAL LAW 206(4)—LICENSES assigned and was paid the salary named until his death, October 8, 1913. In February, 1915, his administratrix filed with the Auditor of the Treasury a claim for salary of her intestate as "United States weigher of customs" at the rate of $2,500 per annum, from May 12, 1909, to and including October 7, 1913. Upon disallowance of the claim she brought this suit in the Court of Claims for the amount, namely, $11,013.89. The court found for the defendant and entered judgment dismissing the petition. 51 Ct. Cl. 356. The case comes here on appeal.

Laws Kan. 1915, c. 371, forbidding sale of license from state board of agriculture, on propfarm produce on commission without annual er showing of character, responsibility, etc., is not violative of Const. U. S. Amend. 14, as depriving dealers of equal protection of laws. 3. CONSTITUTIONAL LAW 287

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7(1) DUE PROCESS COMMISSION DEALERS.

LICENSES KEGULATION OF

[2] There is a fundamental objection to the allowance of the claim or any part there of. MacMath was never appointed weigher and never held office as such. His only ap- Laws Kan. 1915, c. 371, forbidding sale of pointment was that of clerk; his oath of farm produce on commission without annual office being "as clerk and acting U. S. weigh-license from state board of agriculture, on er, class 3." The Secretary of the Treasury learly had the right to create and the collector to make appointment to the position of clerk and to designate duties of the appointee. The fact that the incumbent performed also some or all the duties of a

proper showing of character, responsibility, etc., is not violative of Const. U. S. Amend. 14, as depriving such dealers of their property without due process of law.

In Error to the Supreme Court of the State of Kansas.

Original proceeding in mandamus by the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*154

On Motion for Leave to File Original Bill. Motion by the State of Iowa for leave to file an original bill against Abraham Slimmer, Jr., and others. Motion denied.

State of Kansas, on the relation of S. M. I statutes are there subject to probate proceedBrewster, Attorney General, against J. C. ings and inheritance taxes. Mohler, as Secretary of the State Board of Agriculture, W. S. Payne, L. H. Powell, and others. To review judgment of the Supreme Court of Kansas allowing the writ (98 Kan. 465, 158 Pac. 408), respondents W. S. Payne, L. H. Powell, and others bring error. Affirmed.

Mr. H. M. Havner, of Des Moines, Iowa, for complainant.

Mr. Thomas D. O'Brien, of St. Paul, Minn.,

Mr. Ray Campbell, of Wichita, Kan., for for defendants. plaintiffs in error.

Messrs. J. L. Hunt and James P. Coleman, both of Topeka, Kan., and T. F. Railsback, of Kansas City, Kan., for defendant in error.

*Mr. Justice BRANDEIS delivered the opinion of the Court.

With a view to collecting ultimately at least $13,750 for taxes which the state of Memorandum opinion by Mr. Justice Iowa alleges it is entitled to have assessed MCREYNOLDS. and levied against the property of Abraham

this court an original bill of complaint against the state of Minnesota, Abraham Slimmer, Jr., and Charles Bechhoefer, citizens of Minnesota, and Adolph Lipman, a citizen of Wisconsin. The bill alleges in substance as follows:

The validity of chapter 371, Laws of Kan- | Slimmer, deceased, it asks leave to file in sas 1915 "An act in relation to the sale of farm produce on commission"-is challenged by certain grain dealers carrying on business in that state. It forbids the sale of farm produce on commission without an annual license, to be procured from the State Board of Agriculture upon a proper showing as to character, responsibility, etc., and a bond conditioned to make honest accounting. A fee of $10 is required.

[1-3] *Plaintiffs in error maintain that the statute is class legislation which abridges their rights and privileges, that it deprives them of the equal protection of the laws and also of their property without due process of law-all in violation of the Fourteenth Amendment.

Manifestly, the purpose of the state was to prevent certain evils incident to the business of commission merchants in farm products by regulating it. Many former opinions have pointed out the limitations upon powers of the states concerning matters of this kind and we think the present record fails to show that these limitations have been transcended. Rast v. Van Deman & Lewis, 240 U. S. 342, 36 Sup. Ct. 370, 60 L. Ed. 679, L. R. A. 1917A, 421, Ann. Cas. 1917B, 455; Brazee v. Michigan, 241 U. S. 340, 36 Sup. Ct. 561, 60 L. Ed. 1034, Ann Cas. 1917C, 522; Adams v. Tanner, 244 U. S. 590, 37 Sup. Ct. 662, 61 L. Ed. 1336, L. R. A. 1917F, 1163, Ann. Cas. 1917D, 973. The judgment of the court below is affirmed.

(248 U. S. 115)

STATE OF IOWA v. SLIMMER, JR., et al.

(1) Slimmer, who had for many years been a resident of and domiciled in Iowa, died there testate on August 15, 1917, leaving personal property valued at $550,000, and *consisting, with the exception of personal effects and a few United States Liberty Bonds, wholly of promissory notes. All of this property, except the personal effects and one note for $3,000, was then in Minnesota in the possession of Slimmer, Jr., who had had custody of the decedent's property for at least five years before his death. The $3,000 note was brought by him and Bechhoefer into Minnesota immediately thereafter.

(2) For the period of at least five years before his death, Slimmer, Sr., had conspired with Slimmer, Jr., and Bechhoefer to defraud the state of Iowa of taxes which, by reason of his domicile in Iowa, might and should have been assessed there against his property during his lifetime; and to this end he had arranged with them that his will (if he should leave one) should be probated in Minnesota, had placed in the custody of Slimmer, Jr., in Minnesota, all his property, except his personal effects and the one note for $3,000, and had concealed his property from the Iowa officials and refused to return the same for taxation there.

(3) Pursuant to this conspiracy Slimmer, Jr., and Bechhoefer filed his will for probate

(Argued April 15, 1918. Decided Dec. 9, 1918.) in Minnesota on or about August 21, 1917,

COURTS

No.

--

Original.

514-SUPREME COURT OF UNITED STATES ORIGINAL SUIT BY STATE-LEAVE.

and procured the appointment of Bechhoefer as special administrator, and by falsely Leave will be denied a state to file an orig- claiming that decedent was domiciled there, inal bill in the Supreme Court of the United secured ex parte a finding to that effect, the States against another state and others; it not probate of the will, and the appointment of being entitled to the only effective relief sought, themselves as executors. From this decree, to enjoin further administration by the courts the defendant Lipman, claiming to be an of defendant state of the estate of a decedent resident of plaintiff, who died leaving personal heir, appealed; and this appeal, which is property in defendant state, which under its now pending, has the effect of suspending the

For other cases see same topic and KEY NUMBER in all Key-Numbered Digests and Indexes 39 SUP.Cr.-3

decree and leaving the property in the hands the state Legislature for such an action in of the special administrator. The state of the federal courts. The individual defendIowa has not become a party to these pro-ants objected on the grounds that the Iowa ceedings. administrator was the proper party plaintiff; that he was in any event a necessary party and joining him would oust the court of jurisdiction; that the relief sought would deny to the action of the Minnesota court full faith and credit; and that plaintiff had an adequate remedy at law. The original juris diction of the court to entertain a bill of this character was also questioned. Only one of these objections need be considered, for it presents a conclusive reason why leave to file the bill of complaint should be denied.

(4) Under the laws of Iowa, omissions to list and assess property may be corrected and the taxes collected within five years from the date of such omission. But the amount properly payable for taxes by Slimmer's estate cannot be *collected without assessment and levy thereof against his personal representatives, and such assessment and levy must be made within the state of

Iowa.

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(5) On January 7, 1918, the district court of Dubuque county, Iowa (in a proceeding begun apparently on or about that day), decreed, at the instance of the treasurer of that state, that Slimmer, Sr., was domiciled therein and granted to one Mullany letters of administration of his estate. About the same date the state, learning that Slimmer, Jr., and Bechhoefer were about to come into it for the purpose of taking testimony in the Minnesota probate proceedings, obtained from said district court an injunction re straining the witness from testifying and the designated officers from taking their depositions. Slimmer, Jr., and Bechhoefer

have not been served in the Iowa suit and

have declared their purpose to avoid service

within that state.

The bill prays that it be adjudged and decreed: (a) That Slimmer, Sr., had for more than five years prior to his death been domiciled in Iowa; (b) that his estate consisted of evidences of indebtedness to him and that no part of his estate was, at his death, in Minnesota; (c) that Iowa has and Minnesota has not jurisdiction to administer upon his estate; and prays also (d) that such order be entered as will insure the dismissal of the Minnesota probate proceedings and the administration of the estate in Iowa; and (e) that, pending this suit, an injunction issue restraining the prosecution of the Minnesota probate proceedings.

G.

Substantially the whole of decedent's estate consisted of notes and bonds. Under an arrangement which had been in force for five years or more, these securities were, at the time of his death, in Minnesota in the custody and possession of an agent resident there. Minnesota imposes inheritance taxes; and its statutes provide (G. S. Minn. 1913, § 2281) that no transfer of the property of a nonresident decedent shall be made until the taxes due thereon shall have been paid. Regardless of the domicile of the decedent, these notes and bonds were subject to probate proceedings in that state and likewise subject, at least, to inheritance taxes. S. Minn. 1913, §§ 7205, 2271; Bristol v. Washington County, 177 U. S. 133, 20 Sup. Ct. 585, 44 L. Ed. 701; Wheeler v. New York, 233 U. S. 434, 34 Sup. Ct. 607, 58 L. Ed. 1030. Furthermore, so far as concerns the property of the decedent, located at his death in Minnesota, the probate courts of *that state had jurisdiction to determine the domicile. Overby v. Gordon, 177 U. S. 214, 20 Sup. Ct. 603, 44 L. Ed. 741. But even if decedent was not domiciled in Minnesota, its court had the power either to distribute property located there according to the terms of the will applicable thereto, or to direct that it be transmitted to the personal representative of the decedent at the place of his domicile to be disposed of by him. G. S. Minn. 1913, § 7278; Harvey v. Richards, 1 Mason, 381, Fed. Cas. No. 6,184. See Wilkins v. Ellett, 108 U. S. 256, 258, 2 Sup. Ct. 641, 27 L. Ed. 718.

On or about August 21, 1917, Slimmer's executors filed their petition in the probate court for Ramsey county, Minn.; and the court, in the exercise of its jurisdiction, appointed the defendant Bechhoefer special administrator.

The motion for leave to file the bill was submitted ex parte. In view of doubt entertained as to the propriety of granting it, consideration of the application was postponed (as in Minnesota v. Northern Securities Co., 184 U. S. 199, 22 Sup. Ct. 308, 46 L. Ed. 499, and Washington v. Northern Securities Co., 185 U. S. 254, 22 Sup. Ct. 623, 46 L. Ed. 897), so that the parties might be heard; and the motion was fully argued As such, he took and now orally and upon briefs. Both the state of holds, pending an appeal to the state district Minnesota and the individual defendants, court, possession of the whole of decedent's other than Lipman, objected to the granting estate, consisting of the notes and Liberty of leave to file the bill. The state objected Bonds as well as the personal effects. The on the grounds that the only effective relief only effective relief sought here is to enjoin sought was an injunction against a proceed- the further administration of the estate of ing in a state court; that the Minnesota the deceased by the courts of Minnesota. It probate court had exclusive jurisdiction to is clear that the state of Iowa is not entitled administer assets of a decedent within its to such relief. borders, regardless of his domicile; and also that there was no authority granted by

The motion for leave to file the bill of complaint is, therefore, denied.

(248 U. S. 71)
GULF OIL CORPORATION v. LEWELLYN,
Collector of Internal Revenue.

alone, the change being effected by entries upon the respective companies' books. The earnings thus transferred had been accumu

(Argued Nov. 4, 1918. Decided Dec. 9, 1918.) lated and had been used as capital before the

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taxing year. Lynch v. Turrish, 247 U. S. 221, 228, 38 Sup. Ct. 537, 62 L. Ed. 1087.

We are of opinion that the decision of the District Court was right. It is true that the petitioner and its subsidiaries were distinct beings in contemplation of law, but the facts that they were related as parts of one enterprise, all owned by the petitioner, that the debts were all enterprise debts due to members, and that the dividends represented earnings that had been made in former years and that practically had been converted into capital, unite to convince us that the transrather than as "dividends declared and paid action should be regarded as bookkeeping Lynch v. Hornby, 247 U. S. 339, 346, 38 Sup. in the ordinary course by a corporation." not itself do the business of its subsidiaries: Ct. 543, 62 L. Ed. 1149. The petitioner did and have *possession of their property as in Southern Pacific Co. v. Lowe, 247 U. S. 330, 38 Sup. Ct. 540, 62 L. Ed. 1142, but the prin

ciple of that case must be taken to cover this. By section II, G, (c), 38 Stat. 174, and S, 38 Stat. 202, the tax from January 1 to February 28, 1913, is levied as a special excise tax, but in view of our decision that the dividends here concerned were not income it is unneces

Mr. Justice HOLMES delivered the opin- sary to discuss the further question that has ion of the Court.

This is a suit to recover a tax levied upon certain dividends as income, under the Act of October 3, 1913, c. 16, section II, 38 Stat. 114, 166. The District Court gave judgment for the plaintiff, 242 Fed. 709, but this judg ment was reversed by the Circuit Court of Appeals. 245 Fed. 1, 158 C. C. A. 1.

been raised under the latter clause as to the effect of the fact that excise taxes upon the subsidiary corporations had been paid. Judgment reversed.

(248 U. S. 158)

PURE OIL CO. v. STATE OF MINNESOTA. (Argued Nov. 21 and 22, 1918. Decided Dec. 9, 1918.)

No. 74.

51-INTERSTATE COMMERCE

1. COMMERCE
INSPECTION LAWS-OILS.

A state, under its police power, may enact laws for inspection of oils and gasoline, tending from frauds, and may charge a fee reasonably to promote public safety, or to protect public sufficient to pay cost of inspection, though property may be moving in interstate commerce; but, if charge is obviously and largely in excess of cost of inspection, act will be declared void as burden on interstate commerce.

The facts may be abridged from the findings below as follows: The petitioner was a holding company owning all the stock in the other corporations concerned except the qualifying shares held by directors. These companies with others constituted a single enterprise, carried on by the petitioner, of producing, buying, transporting, refining and selling oil. The subsidiary companies had retained their earnings, although making some loans inter se, and all their funds were invested in properties or actually required to carry on the business, so that the debtor companies had no money available to pay their debts. In January, 1913, the petitioner decided to take over the previously accumulated earnings and surplus and did so in that year by votes of the companies that it controlled. But, disregarding the forms gone through, the result was merely that the petitioner became the holder of the debts previously due from one of its companies to another. It was no richer than before, but its property now was represented by stock in 3. EVIDENCE 28-JUDICIAL NOTICE-STATE STATUTES INSPECTION FEES. and debts due frora its subsidiaries, whereas In determining whether fees for inspection formerly it was represented by the stock of oils and gasoline exacted by state of Minneso

2. CONSTITUTIONAL LAW 48-INSPECTION FEE - DISCRETION OF LEGISLATURE — JUDICIAL INQUIRY.

Discretion of state Legislature in determining amount of fee for inspection of oils and gasoline, prima facie reasonable, will not be lightly disturbed by federal courts in determining whether exaction for inspection of such products, moving in interstate commerce, constitutes burden thereon, on account of excessive character of charge, rendering state act a revenue, instead of an inspection, measure.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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