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(40 Sup.Ct.)

sup-, man holding such a position as Lemke held, new could not, and did not, have anything to do with determining what should be published in the paper. He had no more to do with the policy of the paper than a porter would 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

To hold that such publications can be
pressed as false reports, subjects to
perils the constitutional liberty of the press,
already seriously curtailed in practice under
powers assumed to have been conferred upon
the postal authorities. Nor will this grave
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 pas-
sion or by fear, may be prone in the future,
as it has often been in the past to stamp as


or prevent.

A different case is made against Werner and Darkow. Werner was a writer of polit

disloyal opinions with which it disagrees. ical editorials for the paper, and Darkow Convictions such as these, besides abridging freedom of speech, threaten freedom of thought and of belief.

Mr. Justice CLARKE, dissenting.

On a single indictment, containing nine counts, five men, Peter Schaefer, Paul Vogel, Louis Werner, Martin Darkow and Herman Lemke, were convicted and sentenced to the penitentiary for printing seventeen articles in a German language newspaper, published at Philadelphia, between June 24 and September 17, 1917.

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..

Two of the articles written, or caused to

be published, by Werner, and one, or perhaps two, of those caused to be published by Darkow, were of a character such that they might have been fairly convicted of violating the act under which they were indicted, but none of these articles was included in count 1, and only one of them was included in count 9, and with respect to this one article in count 9 Werner was found not guilty when charged with its publication in count 3. The charge of the court did not distinguish between these really offending publications and the many innocent ones the publication of which was charged to be crim


Schaefer was president and Vogel was treasurer of the company which published the paper, but their entire time was given to the service of labor unions, which had loaned money to the company, and they were given these official positions for the purpose of enabling them to keep informed as to its business progress and the disposition of its earn-inal, with the result that it failed to give ings.

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.

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


such direction to the deliberations of the

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

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."

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. 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,

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 *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.)

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.

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 crimiObviously 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 indictment does not claim that there is. That which the indictment charges makes the publication criminally false is that there was

"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."


conspiracy to suppress certain statements which were published in other newspapers in connection with or as a part of the published 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 something which tended to encourage German enemies, but in omitting to publish something which it is conceived might have discouraged them. It is not charged that what was printed was harmful, but that something which was unfavorable to Germany was not pub-ly editions of the morning papers when it lished.

It was clearly proved that the newspaper was so poor financially that it was not able to have telegraphic service of any character and, morning paper that it was, it filled its news columns with clippings from the evening papers of the night before and from ear

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

(40 Sup.Ct.)

488, 489(5)—

columns as the newspapers from which it 13. MUNICIPAL CORPORATIONS
obtained its news and for this reason it
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 have been committed, but for the stress and strain of feeling prevailing in the early months of the late deplorable war.

(252 U. S. 7)

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.

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.


*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.

The charter of the city of Denver was before this court in Londoner v. City and County 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

FARNCOMB et al. v. CITY AND COUNTY of collection, etc., and apportion the same upOF DENVER et al.

(Argued Jan. 14, 1920. Decided March 1, 1920.)

No. 110.


on each lot or tract of land to be assessed, shall cause the same to be certified by the president, and filed in the office of the clerk. 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 su2. CONSTITUTIONAL LAW 290(4)-MUNICI-pervisors, and filed with the clerk within 60 PAL CORPORATIONS 455 CHARTER PRO- days from the first publication of such no


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.



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.

tice, 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:

"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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ments; the board of public *works may thereupon make such modifications and changes as to them may seem equitable and just, and may confirm the first apportionment and shall notify the council of their final decision; and the council shall thereupon, by ordinance, assess the costs of said improvements against all the real estate in said district and against such persons, respectively, in the proportions above mentioned."

Section 328 of the charter provides:

"When the cost of any such park site or parkway is definitely determined, the park commission shall prepare, certify and file with the clerk a statement showing the cost thereof as required in section 298 hereof; the clerk shall thereupon give the notice required by section 299 hereof; and thereupon the same proceedings required in section 300 hereof shall be had, except that the proceedings therein provided to be observed by the board shall be observed by the park commission; and the council shall thereupon by ordinance assess the cost against the other real estate as aforesaid, in the district, in accordance with said apportionments."

The federal question, brought before us by the writ of error, concerns the constitutionality of section 300, above set forth the contention being that it does not give interested property owners the opportunity to be heard where the property is to be specially assessed for making improvements of the character in question, as the hearing provided is before a board which has no power to decide any complaint which the property owner may have or make with respect to the validity or falseness of such assessment, or to correct any error in such assessment, but only has power to recommend to the power or authority, originally making the assessment, any modifications of portions of such assessment; that is, that the board of supervisors has only the power to recommend to the board of park commissioners the apportionment to be made in the assessment. It is the contention of the plaintiffs in error that the

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cept that the board of supervisors, sitting as a board of equalization, is substituted for the city council.

[1] This court when dealing with the constitutionality of state statutes, challenged under the Fourteenth Amendment, accepts the meaning thereof as construed by the highest court of the state. St. Louis & Kansas City Land Co. v. Kansas City, 241 U. S. 419, 427, 36 Sup. Ct. 647, 60 L. Ed. 1072.

[2] In Londoner v. Denver this court accepted, as it was bound to do, the construction of the charter made by the state court, and upon that construction determined its constitutional validity. The city charter was construed in the Supreme Court in 33 Colo. 104, 80 Pac. 117. In the opinion in that case, after discussing the steps required in making improvements of the character involved here, the court, in dealing with section 31, said (33 Colo. 117, 80 Pac. 121):

"Notwithstanding the apparently mandatory words used in section 31, supra, we do not think that thereby the legislative power and discretion of the city council is taken away and vested in the board of public works, but that the former, in the exercise of its functions, is empowered to

pass an assessing ordinance

charging property with the cost of an improvebe just and equitable." ment, which, according to its judgment, would


*Adopting this construction of the section, and considering the objection urged that it would not afford due process of law, this court by Mr. Justice Moody said (210 U. S. 379, 28 Sup. Ct. 711, 52 L. Ed. 1103):

"The ninth assignment questions the constitutionality of that part of the law which authorizes the assessment of benefits. It seems desirable, for the proper disposition of this and the next assignment, to state the construction which the Supreme Court gave to the charter. This may be found in the judgment under review and two cases decided with it. Denver v. Kennedy, 33 Colo. 80 [80 Pac. 122, 467]; Denver v. Dumars, 33 Colo. 94 [80 Pac. 114]. From these cases it appears that the lien upon the adjoining land arises out of the assessment; after the cost of the work and the provisional apportionment is certified to the city council the landowners affected are afforded an opportunity to be heard upon the validity and amount of the assessment by the council sitting as a board of equalization; if any further notice than the notice to file complaints and objections is required, the city authorities have the implied power to give it; the hearing must be before the assessment is made; this hearing, provided for by section 31, is one where the board of equalization 'shall hear the parties complaining and such testimony as they may offer in support of their complaints and objec tions as would be competent and relevant' (33 Colo. 97 [S0 Pac. 114]); and that the full hearing before the board of equalization excludes the courts from entertaining any objections which are cognizable by this board. The statute itself, therefore, is clear of all constitutional

The Supreme Court of Colorado held that the question had already been disposed of by its own previous decision, affirmed as to the constitutional point by our decision in Londoner v. Denver, 210 U. S. 373, 28 Sup. Ct. 708, 52 L. Ed. 1103, supra. In Londoner v.. Denver the section of the charter now involved was before this court, being then section 31 of the charter. Section 300 to all intents is the same in terms as section 31, ex-faults."

(40 Sup.Ct.)

[3] Plaintiffs in error did not avail themselves of the privilege of a hearing as provided by this section, but after the assessing ordinance had been passed began this proceeding in the district court to test the constitutionality of the law. As we have said, the question as to what should be a proper construction of the charter provision was not for our decision; that matter was within the


*sole authority of the state court, and was disposed of, as the Supreme Court of Colorado held, by the former cases reported in 33 Colorado, and by our decision based upon that construction in Londoner v. Denver, 210 U. S. 373, 28 Sup. Ct. 708, 52 L. Ed. 1103, supra. As the plaintiffs in error had an opportunity to be heard before the board duly constituted by section 300, they cannot be heard to complain now. It follows that the judgment of the Supreme Court of Colorado must be


(252 U. S. 12)

Action by the George G. Prendergast Construction Company against David Goldsmith and others. A judgment for plaintiff was affirmed by the Supreme Court of Missouri (273 Mo. 184, 201 S. W. 354), and defendants bring error. Affirmed.

Mr. David Goldsmith, of St. Louis, Mo., for plaintiffs in error.

Mr. Hickman P. Rodgers, of St. Louis, Mo., for defendant in error.


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

Suit was brought in the circuit court of the city of St. Louis by the Construction Company to recover upon a special tax-bill issued by the city of St. Louis for the construction of the sewer in what is known as Manchester Road sewer district No. 111, city of St. Louis. The Construction Company recovered a judgment on the tax-bills against the plaintiffs in error, who were owners of abutting property. Upon appeal to the Supreme Court of Missouri the judgment below was affirmed upon hearing and rehear

GOLDSMITH et al. v. GEORGE G. PREN- ing. Prendergast Const. Co. v. Goldsmith,


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.)

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The mere fact that part of a city park excluded from a sewer assessment district might have been drained into the sewer will not warrant the federal Supreme Court in reversing the action of the state courts in upholding the assessment on the ground that by such exclusion the assessment is rendered void as a deprivation of constitutional rights secured to property owners by the due process and equal protection clauses of Const. Amend. 14.

made, was constructed in a certain boulevard known as Kingshighway Boulevard. On the east of this boulevard, and fronting on the same for a considerable distance, is a tract belonging to the city, and known as Tower Grove Park; this property was not assessed for the building of the sewer. This omission is alleged to be of such an arbitrary and discriminatory character as to render the ordinance making the assessment void as a deprivation of federal constitutional rights


*secured to the plaintiffs in error by the due process and equal protection clauses of the Fourteenth Amendment.

The circuit court made findings of fact in

2. CONSTITUTIONAL LAW 233, 290(1)-As- which it found that there was no evidence


The federal Supreme Court only interferes with assessments for public improvements on the ground of violation of constitutional rights secured by Const. Amend. 14 when the action of the state authorities is arbitrary or wholly unequal in operation and effect.


No federal constitutional right was violated by the refusal of the Missouri Supreme Court to transfer a cause from a division of that court to the court en banc.

that the municipal assembly of the city of St. Louis, in passing the ordinances in question, was actuated by motives of fraud or oppression; that such motives, if any, must be inferred solely from the failure to incorporate parcels or tracts of land in the sewer district, the topography of which might render it necessary or expedient to then, or thereafter, drain the water or sewage therefrom into the sewer. The court recites the nature of the title of the tract known as Tower Grove Park.

It appears that the park had been conveyed to the city, the grantor reserving therefrom a strip 200 feet wide, surrounding the same. 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.

Iand the strip of 200 feet in width, surround

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

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