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(40 Sup.Ct.) To hold that such publications can be sup- , man holding such a position as Lemke held, pressed as false reports, subjects to new could not, and did not, have anything to do perils the constitutional liberty of the press, with determining what should be published already seriously curtailed in practice under in the paper. He had no more to do with powers assumed to have been conferred upon the policy of the paper than a porter would the postal authorities. Nor will this grave have with determining the policy of a rail

road company. In my judgment the failure danger end with the pass*ing of the war. The constitutional right of free speech has of proof as to Lemke was as complete as it been declared to be the same in peace and in share in permitting him to be imprisoned in

was as to Schaefer and Vogel and I cannot war. In peace, too, men may differ widely the penitentiary for a year for publications as to what loyalty to our country demands; which he was powerless either to authorize and an intolerant majority, swayed by pas

or prevent. sion or by fear, may be prone in the future,

A different case is made against Werner as it has often been in the past to stamp as disloyal opinions with which it disagrees. ical editorials for the paper, and Darkow

and Darkow. Werner was a writer of politConvictions such as these, besides abridging

was the news editor. Werner was found freedom of speech, threaten freedom of

guilty on four counts and not guilty on five. thought and of belief.

Darkow was found guilty on five counts and

not guilty on four.. Mr. Justice CLARKE, dissenting.

Two of the articles written, or caused to On a single indictment, containing nine

be published, by Werner, and one, or perhaps counts, five men, Peter Schaefer, Paul Vogel, Louis Werner, Martin Darkow and Herman two, of those caused to be published by DarLemke, were convicted and sentenced to the kow, were of a character such that they penitentiary for printing seventeen articles might have been fairly convicted of violating in a German language newspaper, published the act under which they were indicted, but at Philadelphia, between June 24 and Sep- none of these articles was included in count tember 17, 1917.

1, and only one of them was included in Schaefer was president and Vogel was

count 9, and with respect to this one article treasurer of the company which published in count 9 Werner was found not guilty the paper, but their entire time was given to when charged with its publication in count

•497 the service of labor unions, which had loaned 3. The charge of the court did *not distinmoney to the company, and they were given guish between these really offending pubthese official positions for the purpose of en- lications and the many innocent ones the abling them to keep informed as to its busi- publication of which was charged to be crimness progress and the disposition of its earn- inal, with the result that it failed to give ings.

such direction to the deliberations of the All the members of the court agree that jury as I think every person accused of crime there was no substantial evidence that Schae- is entitled to have given. fer or Vogel were in any respect responsible

The denial of separate motions to instruct for the publications complained of and that the jury to render a verdict of not guilty as as to them the judgment must be reversed. to Werner and Darkow on the first and ninth

In this conclusion I cordially concur, but counts seems to me to constitute error so I go further and am clear that a similar re- fundamental and pervasive as to render the versal should be entered as to Herman Lem- entire trial unfair and unjust, to a degree ke, who was convicted, as Schaefer and Vogel which requires the granting of a new trial were, on only one of the nine counts of the to each of them. indictment.

I shall state my reasons for this concluLemke was given the sounding title of

sion as briefly as I may. "business manager," but, as a matter of fact,

The first count charges that the defendhe was a mere bookkeeper, *of a small busi- antsness, with very limited authority. The news- “knowingly, willfully and unlawfuily made and paper led a precarious financial existence conveyed false reports and statements, with and Lemke's duties were restricted to mak-intent to promote the success of the enemy of ing out and collecting bills for advertising the United States, to wit, the Imperial German and circulation, to paying some bills and to government.” turning over the remainder of the money, if any remained, to the treasurer, Vogel. The indictment and the record in general Lemke himself and two or three other wit- make it very plain that the district attorney, nesses testified that he had nothing whatev in framing the indictment, and during the er to do with deciding what should be pub- trial, believed that the statute prohibiting lished in the newspaper, and that he never the making and conveying of a false report wrote for it excepting that when a reporter and statement would be violated by the pubwas ill he occasionally reported a concert.lication of any article which had been pubThere was no evidence to the contrary. lished elsewhere if, in the publication, it

On such a record it is very clear that a was changed, either by addition or omission,

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and this without any proof that the original, 13 articles in the first count, and to these, ad. publication was true and the second publica- ditions were made so inconsequential as in tion false, and seemingly without regard to my judgment not to deserve notice. whether or not the publication had any tend- It seems to me very clear that the statute ency to promote the success of the enemy. could not be violated by publishing reports The trial court accepted this construction of and statements harmless in themselves and the statute and submitted the first count to which were not shown to be false, merely bethe jury on this theory of the law.

cause they had been published in a different I cannot doubt that this was gravely er- form in another paper—and this is the exroneous, for the real purpose of the statute tent to which the proof in this case goes as is to punish, published, not suppressed, re- to all of the publications complained of in ports and statements, whether original or the first count. Without more discussion, I •498

am so clear that the requested instruction for *copies, made with the intent to promote the the defendants Werner and Darkow as to the success, and which were of a nature reason first count should have been granted, that I ably likely to promote the success, of the think the refusal of it entitles them to a new enemy of the United States—by discouraging trial. our own people or encouraging the enemy. The ninth count consists of a charge of con

The first of the 13 false reports, which it spiracy on the part of the entire five defend. is charged in the first count were published, ants to willfully make and convey false re is typical of the others, and will sufficiently ports and false statements with intent to inexplain my position.

terfere with the operation and success of the It purported to be a dispatch from London military and naval forces of the United States, and translated reads as follows:

with willfully causing and attempting to "The Crisis.

cause insubordination, disloyalty and mutiny “Is Advancing in Russia with Rapid Strides. States, and with willfully obstructing the re

in the military and naval forces of the United The Coalition Government Will Probably Not Last Long.

cruiting and enlisting service of the United "Its Position in Foreign Affairs is Condemned. referred to, but not quoted, in the indictment.

States by the publication of various articles “London, June 23.-The Petrograd correspondent of the Chronicle telegraphs today that the same as those incorporated in the first

With a single exception these articles are a great crisis is in progress in Russia. (By that he means apparently that the unstable and weak count and this exception purported to be a coalition government will soon be got rid of. dispatch from the Hague, giving the *reasons It seems to obey unwillingly the instructions of the Workmen's and Soldiers' Council to re- for the unrest in Germany, from which it is quest the allies to revise their war aims. The charged there was omitted a statement that workmen will not stand for this much longer. one of the reasons for such unrest was the failIt is highly significant too that not a word has ure of the submarine campaign carried on by been reported for four days about the great gen- the German government. Even in this ninth eral congress of the Workmen's and Soldiers' count it is not charged that the publications delegates; apparently because its behavior does as actually made were harmful but it proceeds not please the allies.)

"The correspondent of the Chronicle quotes as does the first count, upon the implication an extract from Maxim Gorky's newspaper that they might have been more discouraging ‘New Life,' which says that people all over the than they were to the German enemy if the world are to understand that Russia rejects the omitted statements had been incorporated aggressive war aims of the allies. The corre- into them, and that for this reason they riospondent sees a sign in this that the socialists lated the statute. In other words, it comes of Russia will not wait much longer."

to this, that the ninth count charges as crimi. Obviously there is nothing in this, as pub- nal, not a conspiracy to publish the articles lished, which could either discourage Ameri- complained of, which were innocent, but a cans or encourage the German enemy, and the conspiracy to suppress certain statements indictment does not claim that there is. That which were published in other newspapers in which the indictment charges makes the pub-connection with or as a part of the published lication criminally false is that there was articles and which it is argued night have

been harmful to the German cause if they had omitted from it "a *proposal by Maxim been published. It is impossible for me to Gorky that Russia wage a separate war think that the statute could be violated in any against Germany.” Thus the charge is that such manner. the crime consisted not in publishing some- It was clearly proved that the newspaper thing which tended to encourage German was so poor financially that it was not able enemies, but in omitting to publish something to have telegraphic service of any character which it is conceived might have discouraged and, morning paper that it was, it filled its them. It is not charged that what was print- news columns with clippings from the eveed was harmful, but that something which ning papers of the night before and from earwas unfavorable to Germany was not pub- ly editions of the morning papers when it lished.

could procure them before its hour for going This is characteristic of all but 2 of the) to press. It did not print nearly as many

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(40 Sup.Ct.) columns as the newspapers from which it 13. MUNICIPAL CORPORATIONS Om488, 489(5) obtained its news and for this reason it PROPERTY OWNERS NOT ATTENDING HEARING was necessarily obliged to cut and condense.

ON ASSESSMENT NOT ENTITLED TO COMPLAIN. both headlines and the body of the articles. Property owners, who did not avail themIn several of the instances complained of selves of the privilege of a hearing respecting these exigencies of publication plainly caused assessments for a public improvement, under the omissions complained of.

Denver City Charter, $ 300, could not complain

of the assessments thereafter. Convinced as I am that the requested instructions to the jury that Werner and Dar

In Error to the Supreme Court of the kow could not be found guilty on the first

State of Colorado. and ninth counts should have been given, and that the charge of the court was so utterly

Suit by

Henry Farncomb and others unadapted to the case as it would have been against the City and County of Denver, and

others. A judgment for defendants was afif they had been *given, as to be valueless or firmed by the Supreme Court of Colorado worse as a direction to the jury, I think that (171 Pac. 66), and plaintiffs bring error. Afthe least that can be done, in the interest of

firmed. the orderly administration of justice, is to grant a new trial and let a new jury, proper- Mr. T. J. O'Donnell, of Denver, Colo., for ly instructed, pass upon the case.

plaintiffs in error. I cannot see, as my Associates seem to see, Mr. James A. Marsh, of Denver, Colo., for that the disposition of this case involves a defendants in error. great peril either to the maintenance of law and order and governmental authority on

*Mr. Justice DAY delivered the opinion of the one hand, or to the freedom of the press

the Court. on the other. To me it seems simply a case of flagrant mistrial, likely to result in disgrace the city and county of Denver by the plain

Suit was brought in the district court of and great injustice, probably in life imprison- tiffs in error to enjoin the city from enforcment for two old men, because this court hesitates to exercise the power, which it un. the necessary means to pay for certain park

ing an assessment ordinance passed to raise doubtedly possesses, to correct, in this calmer

improvements and the construction of bouletime, errors of law which would not have been committed, but for the stress and strain vards and streets in the city of Denver. of feeling prevailing in the early months of fore this court in Londoner v. City and Coun

The charter of the city of Denver was bethe late deplorable war.

ty of Denver, 210 U. S. 373, 28 Sup. Ct. 708, 52 L. Ed. 1103. Sections 298 and 299 of the charter provided that the board of local im

provements shall prepare a statement show(252 U. S. 7)

ing the costs of improvements, interest, cost FARNCOMB et al. v. CITY AND COUNTY of collection, etc., and apportion the same upOF DENVER et al.

on each lot or tract of land to be assessed,

shall cause the same to be certified by the (Argued Jan. 14, 1920. Decided March 1,

president, and filed in the office of the clerk. 1920.)

The clerk shall then by advertisement in No. 110.

some newspaper of general circulation, pub

lished in the city and county, notify the own1. COURTS 366(1) - SUPREME COURT AC

ers of the real estate to be assessed and all CEPTS CONSTRUCTION OF STATE STATUTES BY persons interested that said improvements STATE COURTS.

have been or will be completed, and shall The federal Supreme Court, when dealing specify the whole cost of the improvement, with the constitutionality of state statutes un- and the share so apportioned to each lot, or der the Fourteenth Amendment, accepts the tract of land, or person, and any complaint meaning thereof as construed by the highest or objection that may be made in writing by court of the state.

such persons or owners to the board of su2. CONSTITUTIONAL LAW On 290(4)-MUNICI-pervisors, and filed with the clerk within 60

PAL CORPORATIONS Omw455—CHARTER PRO- days from the first publication of such noVISION AS TO ASSESSMENTS FOR PUBLIC IM- tice, shall be heard and determined by the PROVEMENTS HELD NOT TO DENY DUE PRO- board of supervisors at its first regular CESS.

meeting after 60 days, and before the pasDenver City Charter, 8 328, relative to sage of any ordinance assessing the cost of complaints and objections with respect to as

the improvements. sessments for public improvements, does not,

Section 300 provides: as construed by the state Supreme Court, deny due process of law, by denying property owners "At the meeting specified in said notice, or a hearing before a board having power to de- any adjournment thereof, the board of supercide the complaint.

visors, sitting as a board of equalization, shall For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*9

hear and determine all such complaints and ob- cept that the board of supervisors, sitting as jections, and may recommend to the board of a board of equalization, is substituted for the public works any modification of their apportion-city council. ments; the board of public *works may there

[1] This court when dealing with the conupon make such modifications and changes as stitutionality of state statutes, challenged to them may seem equitable and just, and may, under the Fourteenth Amendment, accepts confirm the first apportionment and shall notify the meaning thereof as construed by the the council of their final decision; and the highest court of the state. St. Louis & Kan. council shall thereupon, by ordinance, assess

sas City Land Co. v. Kansas City, 241 U. S. the costs of said improvements against all the 419, 427, 36 Sup. Ct. 647, 60 L. Ed. 1072. real estate in said district and against such persons, respectively, in the proportions above

[2] In Londoner v. Denver this court acmentioned."

cepted, as it was bound to do, the construc

tion of the charter made by the state court, Section 328 of the charter provides: and upon that construction determined its

"When the cost of any such park site or constitutional validity. The city charter was parkway is definitely determined, the park com- construed in the Supreme Court in 33 Colo. mission shall prepare, certify and file with the 104, 80 Pac. 117. In the opinion in that case, clerk a statement showing the cost thereof as required in section 298 hereof; the clerk shall improvements of the character involved here,

after discussing the steps required in making thereupon give the notice required by section 299 hereof; and thereupon the same proceedings the court, in dealing with section 31, said required in section 300 hereof shall be had, ex- (33 Colo. 117, 80 Pac. 121): cept that the proceedings therein provided to

"Notwithstanding the apparently mandatory be observed by the board shall be observed by words used in section 31, supra, we do not think the park commission; and the council shall that thereby the legislative power and discrethereupon by ordinance assess the cost against tion of the city council is taken away and the other real estate as aforesaid, in the dis- vested in the board of public works, but that trict, in accordance with said apportionments.” the former, in the exercise of its functions, is The federal question, brought before us by

em powered to pass an assessing ordinance the writ of error, concerns the constitution charging property with the cost of an improveality of section 300, above set forth—the be just and equitable.”

ment, which, according to its judgment, would contention being that it does not give in. terested property owners the opportunity to

*11 be heard where the property is to be special- *Adopting this construction of the section, ly assessed for making improvements of and considering the objection urged that it the character in question, as the hearing pro- would not afford due process of law, this vided is before a board which has no power court by Mr. Justice Moody said (210 U. S. to decide any complaint which the property 379, 28 Sup. Ct. 711, 52 L. Ed. 1103): owner may have or make with respect to the

“The ninth assignment questions the constituvalidity or falseness of such assessment, ortionality of that part of the law which authorto correct any error in such assessment, but izes the assessment of benefits. It seems desiraonly has power to recommend to the power or ble, for the proper disposition of this and the authority, originally making the assessment, next assignment, to state the construction which any modifications of portions of such assess the Supreme Court gave to the charter. This ment; that is, that the board of supervisors may be found in the judgment under review has only the power to recommend to the and two cases decided with it. Denver v. Ken

nedy, 33 Colo. 80 (80 Pac. 122, 467); Denver board of park commissioners the apportion- v. Dumars, 33 Colo. 94 [80 Pac. 114). From ment to be made in the assessment. It is the these cases it appears that the lien upon the contention of the plaintiffs in error that the adjoining land arises out of the assessment;

after the cost of the work and the provisional hearing thus afforded does not *give due pro- apportionment is certified to the city council cess of law within the meaning of the Four- the landowners affected are afforded an opporteenth Amendment to the Constitution. The tunity to be heard upon the validity and amount Supreme Court of Colorado, affirming the of the assessment by the council sitting as judgment of the district court, denied this a board of equalization; if any further notice contention, and affirmed the judgment of the than the notice to file complaints and objections

is required, the city authorities have the imdistrict court sustaining the validity of the

plied power to give it; the hearing must be assessment. 171 Pac. 66.

before the assessment is made; this hearing, The Supreme Court of Colorado held that provided for by section 31, is one where the the question had already been disposed of by board of equalization'shall hear the parties its own previous decision, aflirmed as to the complaining and such testimony as they may constitutional point by our decision in Lon- offer in support of their complaints and objecdoner v. Denver, 210 U. S. 373, 28 Sup. Ct. tions as would be competent and relevant (33 708, 52 L. Ed. 1103, supra. In Londoner v.

Colo. 97 (SO Pac. 114]); and that the full hear. Denver the section of the charter now in.) ing before the board of equalization excludes the

courts from entertaining any objections which volved was before this court, being then sec

are cognizable by this board. The statute ittion 31 of the charter. Section 300 to all in- self. therefore, is clear of all constitutional tents is the same in terms as section 31, ex- I faults."

*10

*12

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(40 Sup.Ct.) [3] Plaintiffs in error did not avail them- Action by the George G. Prendergast Conselves of the privilege of a hearing as pro-struction Company against David Goldsmith vided by this section, but after the assessing and others. A judgment for plaintiff was ordinance had been passed began this pro affirmed by the Supreme Court of Missouri ceeding in the district court to test the con- (273 Mo. 184, 201 S. W. 354), and defendants stitutionality of the law. As we have said, bring error. Affirmed. the question as to what should be a proper Mr. David Goldsmith, of St. Louis, Mo., construction of the charter provision was not for plaintiffs in error. for our decision; that matter was within the

Mr. Hickman P. Rodgers, of St. Louis, Mo.,

for defendant in error. *sole authority of the state court, and was disposed of, as the Supreme Court of Colorado held, by the former cases reported in

*Mr. Justice DAY delivered the opinion of 33 Colorado, and by our decision based upon the Court. that construction in Londoner v. Denver, 210 Suit was brought in the circuit court of U. S. 373, 28 Sup. Ct. 708, 52 L. Ed. 1103, the city of St. Louis by the Construction supra. As the plaintiffs in error had an op- Company to recover upon a special tax-bill portunity to be heard before the board duly issued by the city of St. Louis for the conconstituted by section 300, they cannot be struction of the sewer in what is known as heard to complain now. It follows that the Manchester Road sewer district No. 111, city judgment of the Supreme Court of Colorado of St. Louis. The Construction Company remust be

covered a judgment on the tax-bills against Affirmed.

the plaintiffs in error, who were owners of abutting property. Upon appeal to the Su

preme Court of Missouri the judgment be(252 U. S. 12)

low was affirmed upon hearing and rehearGOLDSMITH et al. v. GEORGE G. PREN- | ing. Prendergast Const. Co. v. Goldsmith, DERGAST CONST. CO.

273 Mo. 184, 201 S. W. 354.

The record discloses that the sewer, for (Argued Jan. 13 and 14, 1920. Decided March the construction of which the assessment was 1, 1920.)

made, was constructed in a certain boulevard No. 127.

known as Kingshighway Boulevard. On the

east of this boulevard, and fronting on the 1. COURTS 394(10)-ACTION

same for a considerable distance, is a tract COURTS IN UPHOLDING SEWER ASSESSMENT

belonging to the city, and known as Tower NOT REVERSIBLE BECAUSE PROPERTY EXCLUDED MIGHT DRAIN INTO SEWER.

Grove Park; this property was not assessed

for the building of the sewer. This omission The mere fact that part of a city park excluded from a sewer assessment district might is alleged to be of such an arbitrary and hare been drained into the sewer will not war. discriminatory character as to render the orrant the federal Supreme Court in reversing the dinance making the assessment void as a action of the state courts in upholding the as- deprivation of federal constitutional rights sessment on the ground that by such exclusion the assessment is rendered void as a deprivation *secured to the plaintiffs in error by the due of constitutional rights secured to property own process and equal protection clauses of the ers by the due process and equal protection Fourteenth Amendment. clauses of Const. Amend. 14.

The circuit court made findings of fact in 2. CONSTITUTIONAL LAW E233, 290(1)—As- which it found that there was no evidence SESSMENT DISTURBED AS VIOLATIVE OF FED

that the municipal assembly of the city of ERAL RIGHTS ONLY WHEN ARBITRARY OR UN- St. Louis, in passing the ordinances in quesEQUAL.

tion, was actuated by motives of fraud or The federal Supreme Court only interferes oppression; that such motives, if any, must with assessments for public improvements on be inferred solely from the failure to incorthe ground of violation of constitutional rights porate parcels or tracts of land in the sewer secured by Const. Amend. 14 when the action district, the topography of which might renof the state authorities is arbitrary or wholly der it necessary or expedient to then, or thereunequal in operation and effect.

after, drain the water or sewage therefrom 3. Courts C394(25)--REFUSAL TO TRANSFER into the sewer. The court recites the nature

CAUSE TO COURT EN BANC VIOLATES NO CON- of the title of the tract known as Tower STITUTIONAL RIGHT.

Grove Park. No federal constitutional right was violated It appears that the park had been conveyed by the refusal of the Missouri Supreme Court to the city, the grantor reserving therefrom to transfer a cause from a division of that a strip 200 feet wide, surrounding the same. court to the court en banc.

The court found that the western front of

the tract, thus conveyed to the city included In Error to the Supreme Court of the State the western gate or entrance of the park of Missouri.

and the strip of 200 feet in width, surround

OF

STATE

*15

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 40 SUP.CT.-18

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