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(40 Sup.Ct.)

"Ready for the Fray?

"St. Petersburg, September 7th.-The Russian Baltic Fleet will defend Kronstadt and Reval, and through them the Russian capital itself. The commanders of the two fortresses bave made this report to the provisional government. A large part of the Baltic fleet, was under control of the Maximalists, who hitherto have opposed Kerensky. The commanders of Sveaborg and Helsingfors have also telegraphed their assurance to the government that the Baltic fleet has expressed its willingness to offer desperate resistance, in case the Germans should make a naval attack upon the strongholds between Riga and the capital.

The falsification here is said to consist in the omission from the end of the first paragraph of the following sentence which appeared in the paper from which the item was


"Investigation of the Fall of Riga.

"The Russians devastated the land through 489 which they retreated from Riga, in order to impede the German advance. Roads were broken up, bridges destroyed and provisions burned. A special commission has been set up by Premier Kerensky to investigate the fall of Riga. As far as reports have so far been permitted to appear, it is established that only two regiments gave up their positions without fighting, and the others offered the attacking Germans bold resistance. The retreat was carried out in an orderly manner, in spite of pursuit by the German armies. The first of these, advancing along the coast in the region of Dunaburg, is apparently endeavoring to reach Berna, on the Gulf of Riga. The second German army is pressing along the Pskoff road to execute a turning movement, while the third is energetically pushing in a northeasterly direction against Ostroff. The Germans are showing press urged it, the administration *commanded signs of nervousness in advancing through this it, and Congress authorized the issue of five bilmarshy lake-strewn country, which are increas-lions of untaxable Government bonds and two billions of interest bearing Treasury notes.' ed by the Russian resistance.'

"From this it can be concluded that the fall of Riga has united the opposing political factions in Russia."

3. The publication for which the news editor was convicted on the sixth count, because of the change of a word in the item copied:

"Hot Fight in the Senate Over Increased Taxation of War Profits.

the consequences would be that next winter bread riots could be expected in the big cities. He recommended the acceptance of amendments by which further taxation of large incomes and big war profits would be effected, which would bring the total amount of the bill to about $3,500,000,000.

"Washington, August 21.-Taxation of riches in such a measure that the burdens of the cost of the war will be taken from the shoulders of the poor man was recommended today in the Senate by Senator La Follette in a long speech.

"Senator La Follette declared that wealth had never, in any war, offered itself on the altar of patriotism. He attacked the proposed issue of bonds and prophesied that the Liberty Bonds would eventually find their way into the hands of the rich, if they had not already done so. 'But,' he continued, 'this is not all, for war, and principally the sale of bonds, leads inevitably to inflation. This raises prices and through that the cost of living for the great mass of people is raised. Reason and experience teach us that the policy of financing a war for the most part by borrowing the necessary money, is in itself one of the worst financial burdens But wealth is althat war imposes upon men. ways a powerful factor in the Government. It fattens on war loans and war contracts as well as on speculation, which is not wanting in time of war. Upon these grounds the rich are always in favor of war, and when they have succeeded in bringing on a war, they are often powerful enough with ministers of war and parliaments and congresses to force the maximum of loans and to reduce taxation to a minimum by every possible intrigue and argument.

""To-day the way is clear,' he explained, 'hesitation to provide now for heavy taxes would not be a mistake, it would be something worse.' "Senator La Follette reviewed the financial history of previous American wars. 'We must

"War of the Rich.

"Senator La Follette Thinks They Ought Not not repeat such mistakes,' he said, 'it would be

to Make a Cent of Profit.

blind madness if we did not learn from the mistakes that were made in previous wars. A mistake that we make now may be fatal. It would certainly cost us untold millions of dollars and thousands upon thousands of lives, as by it we would prolong the war unnecessarily.

"As long as one man can be found who makes war profits, I am in favor of taking away in taxes such part of those profits as the Government requires, and the Government needs the whole of such profits before adding a penny to the taxation of people who are already staggering under heavy burdens by reason of the higher prices occasioned by the war. This may be a new principle in war financing, but it is the least that one can do for the mass of the people, and it is considerably less than simple justice would demand for them.

⚫490 He declared that the proposed two billion dollar bill as drawn up in the Senate's Committee on Financial Affairs is impractical because it covers less than seventeen per cent. of the war expenses of the first year and from this would result the necessity of issuing bonds for billions of dollars. Bonds, however, mean the same as an increased cost of living, and one of

"And that is the case with us in this war. Within thirty days after the declaration of war wealth had precipitated us into bond issues of unheard of size. Morgan came to the city, the


"Senator La Follette attacked the program of the administration under which a new tax measure will be introduced next winter. 'Of what use is the postponement?' he asked, 'Whose in

terest is served if taxes on incomes and war profits are kept down and the masses are delivered over to the money lenders as security for an enormous and wickedly disproportionate issue of bonds?' He insisted that the policy of financing the war should at once be decided upon.


"The great mass of the people bear the costs of war, although they may not be directly taxed one dollar. The great mass of the people pay in higher prices and pro-longed hours of labor. They pay in service, not alone on the battle field, but whenever men and women work hard all day long. But more than all this, they pay the cost of war with their blood, and their lives, and what is the greatest sacrifice of all, with the blood and lives of their loved ones.

"If bread lines are a familiar sight in every city in the land, as they undoubtedly will be if the present prices of the most necessary supplies for living hold firm during the coming winter, if cold and hunger become daily guests with thousands of families, who, until now, have only known comfort, a condition which is certain to come about during the coming winter months, if no help against the present level of prices can be found, then it is my opinion that the members of this Congress will do little enough if they come to realize that they are adding to the privations and pains of the mass of the people if they hesitate to place even a fairly moderate portion of the financial burden upon the rich.'

the third, if it can be deemed a false report, obviously could not have promoted the suc cess of our enemies. The other publications set out in the indictment were likewise impotent to produce the evil against which the statute aimed.

Darkow, the news editor, and Werner, the editor, were each sentenced to five years in the penitentiary; Lemke, the business manager, to two years. The jury which found men guilty for publishing news items or editorials like those here in question must have supposed it to be within their province to condemn men, not merely for disloyal acts, but for a disloyal heart: provided only that the disloyal heart was evidenced by some utterance. To prosecute men for such publications reminds of the days when men were hanged for constructive treason. And, indeed, the jury may well have believed from the charge that the Espionage Act had in effect restored the crime of constructive trea


To hold that such harmless addi*tions


Falsification is charged solely because the to or omissions from news items, and such impotent expressions of editorial opinion, as word "Brot-riots" (translated as "breadwere shown here, can afford the basis even riots") was used in the eleventh line of the article, instead of the word "Brodreihen" of a prosecution, will doubtless discourage criticism of the policies of the government. (translated as "bread-lines").

2 The presiding judge in charging the jury said. of the act: * Its general purpose is to protect our military strength and efficiency to protect ourselves against anything which would promote the success of our enemies by undermining our morale, lessening our will to win; or as it is generally expressed, our will to conquer, ・・・ creating divisions among our people.

"These acts which are prohibited are treasonable

The act punishes the willful making and conveying of "false reports and false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies." Congress sought thereby to protect the American people from being willfully misled to the detriment of their cause by one actuated by the intention to further the cause of the enemy. Willfully untrue statements which might mislead the people as to the financial condition of the government and thereby embarrass it; as to the adequacy of the preparations for war or the support of the forces; as to the sufficiency of the food supply; or willfully untrue statements or reports of military opera

in the sense in which that word is used, in the
common speech of the people. Indeed, they may
constitute legal treason as defined in some juris-
not treason against the
dictions, but they are
United States, for the simple reason that there is
a provision in our Constitution (which of course,
the acts of Congress follow), that treason against
the United States-you will observe that it does not
say "treason generally,' but treason against the
United States, shall consist only in making war
upon them, or in adhering to their enemies, giving
them aid and comfort, and there is another provi-
sion to the effect that no person shall be convicted
of the crime of treason unless there are two wit-
nesses to the same overt act, making, as you will
see, it perfectly clear that mere words, whether
published or not, as long as they are mere words,
do not constitute the crime of treason, but they
must be words uttered and published under such
selves, as 'words' may be. So that words, unless
there is something to which they may attach and
unless the direct, natural, and reasonably to be
expected consequences of them would be to aid the


circumstances as to become deeds or acts in them

tions which might mislead public opinion as to the competency of the army and navy or its leader (see "The Relation Between the Army and the Press in War Time," War College Publication, 1916); or willfully untrue statements or reports which might mislead officials in the execution of the law, or military authorities in the disposition of the forces such is the kind of false statement, enemy, do not constitute the crime of treason. and the only kind, which, under any rational Every man will observe, however, that even mere construction, is made criminal by the act. words may be fraught with consequences which although too Could the military and naval forces of the to constitute the crime of treason, may nevertheless be words which are United States conceivably have been inter-fraught with most awful fered with, or the success of the enemy conceivably have been promoted by, any of the three publications set forth above? Surely, neither the addition to the first nor the omission from the second constituted the making of a false statement or report. The mistranslation of "breadlines" in one passage of



and that therefore it is properly within the prov-
.. and make it
ince of the law to prohibit
This is in substance

a crime even to utter them.

what the law does. Congress could not call some mere words treason, because the Constitution prohibits it, but there is no constitutional limitation on the power of Congress to declare those things a crime against the law which Congress has done in this act.

• "

(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 railroad company. In my judgment the failure of proof as to Lemke was as complete as it was as to Schaefer and Vogel and I cannot share in permitting him to be imprisoned in the penitentiary for a year for publications which he was powerless either to authorize

or prevent.



danger end with the pass*ing of the war. The constitutional right of free speech has been declared to be the same in peace and in In peace, too, men may differ widely as to what loyalty to our country demands; and an intolerant majority, swayed by passion or by fear, may be prone in the future, as it has often been in the past to stamp as disloyal opinions with which it disagrees. Convictions such as these, besides abridging freedom of speech, threaten freedom of thought and of belief.

A different case is made against Werner and Darkow. Werner was a writer of political editorials for the paper, and Darkow was the news editor. Werner was found guilty on four counts and not guilty on five. 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 1, and only one of them was included in tember 17, 1917. 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 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


jury as I think every person accused of crime is entitled to have given.

All the members of the court agree that there was no substantial evidence that Schaefer or Vogel were in any respect responsible for the publications complained of and that as to them the judgment must be reversed. In this conclusion I cordially concur, but I go further and am clear that a similar reversal should be entered as to Herman Lemke, who was convicted, as Schaefer and Vogel were, on only one of the nine counts of the indictment.

Lemke was given the sounding title of "business manager," but, as a matter of fact,


he was a mere bookkeeper, *of a small business, with very limited authority. The newspaper led a precarious financial existence and Lemke's duties were restricted to making out and collecting bills for advertising and circulation, to paying some bills and to turning over the remainder of the money, if any remained, to the treasurer, Vogel. Lemke himself and two or three other witnesses testified that he had nothing whatever to do with deciding what should be published in the newspaper, and that he never wrote for it excepting that when a reporter was ill he occasionally reported a concert. There was no evidence to the contrary.

On such a record it is very clear that a

The denial of separate motions to instruct the jury to render a verdict of not guilty as to Werner and Darkow on the first and ninth counts seems to me to constitute error so fundamental and pervasive as to render the entire trial unfair and unjust, to a degree which requires the granting of a new trial

to each of them.

I shall state my reasons for this conclusion as briefly as I may.

The first count charges that the defendants

"knowingly, willfully and unlawfully made and conveyed false reports and statements, with intent to promote the success of the enemy of the United States, to wit, the Imperial German government."

The indictment and the record in general make it very plain that the district attorney, in framing the indictment, and during the trial, believed that the statute prohibiting the making and conveying of a false report and statement would be violated by the publication of any article which had been published elsewhere if, in the publication, it was changed, either by addition or omission,

and this without any proof that the original, 13 articles in the first count, and to these, adpublication 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 tendency to promote the success of the enemy. The trial court accepted this construction of the statute and submitted the first count to the jury on this theory of the law.

I cannot doubt that this was gravely erroneous, for the real purpose of the statute is to punish, published, not suppressed, reports and statements, whether original or

It seems to me very clear that the statute could not be violated by publishing reports and statements harmless in themselves and which were not shown to be false, merely because they had been published in a different form in another paper-and this is the extent to which the proof in this case goes as to all of the publications complained of in the first count. Without more discussion, I am so clear that the requested instruction for the defendants Werner and Darkow as to the first count should have been granted, that I think the refusal of it entitles them to a new trial.


*copies, made with the intent to promote the success, and which were of a nature reasonably likely to promote the success, of the enemy of the United States-by discouraging our own people or encouraging the enemy.

The first of the 13 false reports, which it is charged in the first count were published, is typical of the others, and will sufficiently explain my position.

It purported to be a dispatch from London and translated reads as follows:

"The Crisis.

"Is Advancing in Russia with Rapid Strides. The Coalition Government Will Probably Not Last Long.

"Its Position in Foreign Affairs is Condemned. "London, June 23.-The Petrograd correspondent of the Chronicle telegraphs today that a great crisis is in progress in Russia. (By that he means apparently that the unstable and weak coalition government will soon be got rid of. It seems to obey unwillingly the instructions of the Workmen's and Soldiers' Council to request the allies to revise their war aims. The workmen will not stand for this much longer. It is highly significant too that not a word has been reported for four days about the great general congress of the Workmen's and Soldiers' delegates; apparently because its behavior does not please the allies.)

The ninth count consists of a charge of conspiracy on the part of the entire five defendants to willfully make and convey false reports and false statements with intent to interfere with the operation and success of the military and naval forces of the United States, with willfully causing and attempting to cause insubordination, disloyalty and mutiny States, and with willfully obstructing the rein the military and naval forces of the United cruiting and enlisting service of the United referred to, but not quoted, in the indictment. States by the publication of various articles


With a single exception these articles are the same as those incorporated in the first count and this exception purported to be a dispatch from the Hague, giving the *reasons for the unrest in Germany, from which it is charged there was omitted a statement that one of the reasons for such unrest was the failure of the submarine campaign carried on by the German government. Even in this ninth count it is not charged that the publications as actually made were harmful but it proceeds as does the first count, upon the implication that they might have been more discouraging than they were to the German enemy if the omitted statements had been incorporated into them, and that for this reason they violated the statute. In other words, it comes 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 might have been harmful to the German cause if they had been published. It is impossible for me to think that the statute could be violated in any such manner.


omitted from it "a *proposal by Maxim Gorky that Russia wage a separate war against Germany." Thus the charge is that 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

"The correspondent of the Chronicle quotes an extract from Maxim Gorky's newspaper 'New Life,' which says that people all over the world are to understand that Russia rejects the aggressive war aims of the allies. The correspondent sees a sign in this that the socialists of Russia will not wait much longer."

(40 Sup.Ct.)

columns as the newspapers from which it | 3. MUNICIPAL CORPORATIONS 488, 489(5)— obtained its news and for this reason it PROPERTY OWNERS NOT ATTENDING HEARING was necessarily obliged to cut and condense. both headlines and the body of the articles. In several of the instances complained of these exigencies of publication plainly caused the omissions complained of.

Convinced as I am that the requested instructions to the jury that Werner and Darkow could not be found guilty on the first and ninth counts should have been given, and that the charge of the court was so utterly unadapted to the case as it would have been


if they had been given, as to be valueless or worse as a direction to the jury, I think that the least that can be done, in the interest of the orderly administration of justice, is to grant a new trial and let a new jury, properly instructed, pass upon the case.

I cannot see, as my Associates seem to see, that the disposition of this case involves a great peril either to the maintenance of law and order and governmental authority on the one hand, or to the freedom of the press on the other. To me it seems simply a case of flagrant mistrial, likely to result in disgrace and great injustice, probably in life imprisonment for two old men, because this court hesitates to exercise the power, which it undoubtedly possesses, to correct, in this calmer time, errors of law which would not havej been committed, but for the stress and strain of feeling prevailing in the early months of the late deplorable war.

No. 110.



The federal Supreme Court, when dealing with the constitutionality of state statutes under the Fourteenth Amendment, accepts the meaning thereof as construed by the highest court of the state.


Property owners, who did not avail themselves of the privilege of a hearing respecting assessments for a public improvement, under Denver City Charter, § 300, could not complain of the assessments thereafter.

*8 *Mr. Justice DAY delivered the opinion of the Court.

Suit was brought in the district court of the city and county of Denver by the plaintiffs in error to enjoin the city from enforcing an assessment ordinance passed to raise the necessary means to pay for certain park improvements and the construction of boulevards and streets in the city of Denver.

fore this court in Londoner v. City and CounThe charter of the city of Denver was bety 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 improvements shall prepare a statement showing the costs of improvements, interest, cost

(252 U. S. 7)

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 some newspaper of general circulation, published in the city and county, notify the owners of the real estate to be assessed and all persons interested that said improvements have been or will be completed, and shall specify the whole cost of the improvement, and the share so apportioned to each lot, or tract of land, or person, and any complaint or objection that may be made in writing by such persons or owners to the board of su290(4)-MUNICI-pervisors, and filed with the clerk within 60

2. CONSTITUTIONAL LAW PAL CORPORATIONS 455-CHARTER PRO- days from the first publication of such noVISION AS TO ASSESSMENTS FOR PUBLIC IMtice, shall be heard and determined by the board of supervisors at its first regular meeting after 60 days, and before the passage of any ordinance assessing the cost of the improvements.


Section 300 provides:


Denver City Charter, § 328, relative to complaints and objections with respect to assessments for public improvements, does not, as construed by the state Supreme Court, deny due process of law, by denying property owners a hearing before a board having power to decide the complaint.

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

Suit by Henry Farncomb and others against the City and County of Denver, and others. A judgment for defendants was affirmed by the Supreme Court of Colorado (171 Pac. 66), and plaintiffs bring error. Af


Mr. T. J. O'Donnell, of Denver, Colo., for plaintiffs in error.

Mr. James A. Marsh, of Denver, Colo., for defendants in error.

"At the meeting specified in said notice, or any adjournment thereof, the board of supervisors, sitting as a board of equalization, shall

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

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