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543, 550, 51 L. ed. 310, 27 Sup. Ct. Rep. 174. | See also Re Sherman, 153 N. Y. 1, 4, 46 N. E. 1032. For that reason the power is more unlimited than the power of a state to tax transfers generally, or the power of the United States to levy an inheritance tax. The distinction between state and United States inheritance taxes was recognized in Knowlton v. Moore, 178 U. S. 41, 58, 44 L. ed. 969, 976, 20 Sup. Ct. Rep. 747, and whatever may be thought of the decision in Snyder v. Bettman, 190 U. S. 249, 47 L. ed. 1035, 23 Sup. Ct. Rep. 803, I do not understand it to import a denial of the distinction reaffirmed by the dissenting members of the court. 190 U. S. 256, 47 L. ed. 1038, 23 Sup. Ct. Rep. 803.
If, then, a given state tax must be held to be a succession tax in order to maintain its validity, or if in fact it is held to be a succession tax by the state court of which it is the province to decide that matter, it follows that such a tax cannot be levied except where there is a succession, and when some element or step necessary to complete it still is wanting when the tax law goes into effect. If some element is wanting at that time, the succession depends, for taking effect, on the continuance of the permission to succeed or grant of the right on the part of the state; and, as the grant may be withdrawn, it may be qualified by a tax. But if there is no succession, or if the succession has fully vested, or has passed beyond dependence upon the continuing of the state's permission or grant, an attempt to levy a tax under the power to regulate succession would be an attempt to appropriate property in a way which the 14th Amendment has been construed to forbid. No matter what other taxes might be levied, a succession tax could not be, and so it has been decided in New York, Re Pell, 171 N. Y. 48, 55, 57 L.R.A. 540, 89 Am. St. Rep. 791, 63 N. E. 789; Re Seaman, 147 N. Y. 69, 41 N. E. 401.
It is not denied that the tax under consideration is a succession tax. The court of appeals treated it as such in the present case. It said: "If the power had been exercised by deed, a different question would have arisen; but it was exercised by will, and, owing to the full and complete control by the legislature of the making, the form, and the substance, of wills, it can impose a charge or tax for doing anything by will." Re Delano, 176 N. Y. 486, 494, 64 L.R.A. 279, 282, 68 N. E. 871, 873, Reversing 82 App. Div. 147, 81 N. Y. Supp. 762. That it was such a tax and valid for that reason was decided in Re Dows, 167 N. Y. 227, 52 L.R.A. 433, 88 Am. St. Rep. 509, 60 N. E. 439, Affirmed by this court. Orr v. Gilman, 183 U.
S. 278, 46 L. ed. 196, 22 Sup. Ct. Rep. 213, adopting the New York view, 183 U. S. 289, 46 L. ed. 202, 22 Sup. Ct. Rep. 213. And these decisions and some of the other decisions of this court cited above were relied upon by the court of appeals. 176 N. Y. 492, 64 L.R.A. 279, 68 N. E. 871. See, further, Re Vanderbilt, 50 App. Div. 246, 63 N. Y. Supp. 1079, Affirmed in 163 N. Y. 597, 57 N. E. 1127; Re Lansing, 182 N. Y. 238, 248, 74 N. Y. 882. Probably the tax would be invalid for other local reasons besides those mentioned in Re Dows, but for the construction which it has received. Re Pell, 171 N. Y. 48, 60, 57 L.R.A. 540, 89 Am. St. Rep. 791, 63 N. E. 789.
This being, then, a succession tax, I should have thought it plain that there was no succession for it to operate upon. More precisely, even if otherwise any element of succession could have been found,—a matter that I think would need explanation,-the execution of the power did not depend in any way upon the continued co-operation of the laws of New York by way of permission or grant. I am not concerned to criticize the statement of the court of appeals that in substance it is the execution of the power that gives to the grantee the property passing under it. It is enough if it is remembered that the instrument executing the power derives none of its efficiency in that respect from the present laws of New York. It is true that the instrument happens to be a will, and that it could not have operated as a will except by the grant of the privilege from the state at the time when Mrs. Delano died. But what would execute the power depended, in the first place, upon the deed creating it, and if that deed did not require a will, but only an instrument otherwise sufficiently characterized, it did not matter whether the instrument was also good as a will or not. Ela v. Edwards, 16 Gray, 91, 100.
What the deeds which I am considering required was "an instrument in its nature testamentary, to be acknowledged by her (Mrs. Delano) as a deed in the presence of two witnesses, or published by her as a will." The language was chosen carefully, I presume, in view of the incapacities of married women at that time. By the terms used a will was unnecessary. It was enough if Mrs. Delano sealed and acknowledged an instrument in its nature testamentary, in the presence of two witnesses, whether it was good as a will or not. Strong v. -Wilkin, 1 Barb. Ch. 9, 13; Heath v. Withington, 6 Cush. 497. This she did. In Orr v. Gilman, 183 U. S. 278, 46 L. ed. 196, 22 Sup. Ct. Rep. 213, the power was created by will, and, what is more obviously mate
4. The claim of a right under the Federal Constitution to prove the truth of certain published articles held to constitute a contempt of court is too clearly unfounded to serve as the basis of a writ of error from the Federal Supreme Court to a state court.
rial, it required a will for its execution, and | Error to state court-frivolousness of Fedso might be held to invoke and submit itself to the law in force when the execution should take place. Therefore that case has no bearing upon this. The ground upon which this tax is imposed is, I repeat, the right of the state to regulate, or, if it sees fit, to destroy, inheritances. If it might have not appropriated the whole it cannot appropriate any part by the law before us. And I also repeat that it has no bearing Argued March 5, 6, 1907. Decided April 15, upon the matter that, by a different law, the state might have derived an equal revenue
State of Colorado to review a judgment upon an information for contempt. Dis. missed for want of jurisdiction.
from these donees in the form of a tax. IN ERROR to the Supreme Court of the do not understand it to be suggested that the state, without compensation, could have appropriated the remainder after Mrs. Delano's life, which Mr. Astor parted with in 1844 and shortly following years. If it could not have done so I am unable to see on what ground this tax is not void. The English decisions throw no light upon the question before us because they are concerned only with the construction of statutes which, however construed, are law.
Mr. Justice Moody concurs in this dissent.
See same case below (Colo.) 84 Pac. 912. The facts are stated in the opinion. Messrs. Thomas M. Patterson in propria persona, Harry M. Teller, Charles S. Thomas, Sterling B. Toney, James H. Blood, Harvey Riddell, S. W. Belford, John A. Rush, and Richardson & Hawkins for plaintiff in
Messrs. I. B. Melville, Horace G. Phelps, Samuel Huston Thompson, Jr., William H. Dickson, and N. C. Miller for defendant in
THOMAS M. PATTERSON, Plff. in Err.,
PEOPLE OF THE STATE OF COLORADO
Error to state court-Federal question-lo
1. The objections that the information in contempt was not supported by an affidavit until after it was filed, and that the suits referred to in the published articles complained of as constituting the contempt were not then pending, present questions of local law, which will not sustain a writ of error from the Federal Supreme Court to a state court.
Error to state court-Federal question.
2. A decision of a state court upon a question of law cannot be reviewed in the Federal Supreme Court as presenting a question of the violation of the 14th Amendment to the Federal Constitution because such decision is asserted to be wrong, and contrary to previous decisions of the same court.
Error to state court-Federal question.
3. The objection that certain published articles did not constitute a contempt of court does not present a question which will sustain a writ of error from the Federal Supreme Court to a state court; at least, where there is no showing that innocent conduct has been laid hold of as an arbitrary pretense for an arbitrary punish
Mr. Justice Holmes delivered the opinion of the court:
This is a writ of error to review a judg ment upon an information for contempt. 84 Pac. 912. The contempt alleged was the publication of certain articles and a cartoon, which, it was charged, reflected upon the motives and conduct of the supreme court of Colorado in cases still pending, and were intended to embarrass the court in the impartial administration of justice. There was a motion to quash on grounds of local law and the state Constitution and also of the 14th Amendment to the Constitution of the United States. This was overruled and thereupon an answer was filed, admitting the publication, denying the contempt, also denying that the cases referred to were still pending, except that the time for motions for rehearing had not elapsed, and averring that the motions for rehearing subsequently were overruled, except that in certain cases the orders were amended so that the Democratic officeholders concerned could be sooner turned out of their offices. The answer went on to narrate the transactions commented on, at length, intimating that the conduct of the court was unconstitutional and usurping, and alleging that it was in aid of a scheme, fully explained, to seat various Republican candidates, including the governor of the state. in place of Democrats who had been elected, and that
two of the judges of the court got their seats as a part of the scheme. Finally the answer alleged that the respondent published the articles in pursuance of what he regarded as a public duty, repeated the previous objections to the information, averred the truth of the articles, and set up and claimed the right to prove the truth under the Constitution of the United States. Upon this answer the court, on motion, ordered judgment fining the plaintiff in error for contempt.
The foregoing proceedings are set forth in a bill of exceptions, and several errors are alleged. The difficulties with those most pressed is that they raise questions of local law, which are not open to re-examination here. The requirement in the 14th Amendment of due process of law does not take up the special provisions of the state Constitution and laws into the 14th Amendment for the purposes of the case, and in that way subject a state decision that they have been complied with to revision by this court. French v. Taylor, 199 U. S. 274, 278, 50 L. ed. 189, 192, 26 Sup. Ct. Rep. 76; Rawlins v. Georgia, 201 U. S. 638, 639, 50 L. ed. 899, 900, 26 Sup. Ct. Rep. 560; Burt v. Smith, 203 U. S. 129, 135, 51 L. ed. 121, 27 Sup. Ct. Rep. 37. For this reason, if for no other, the objection that the information was not supported by an affidavit until after it was filed cannot be considered. See, further, Ex parte Wall, 107 U. S. 265, 27 L. ed. 552, 2 Sup. Ct. Rep. 569. The same is true of the contention that the suits referred to in the article complained of were not pending. Whether a case shall be regarded as pending while it is possible that a petition for rehearing may be filed, or, if in an appellate court, until the remittitur is issued, are questions which the local law can settle as it pleases without interference from the Constitution of the United States. It is admitted that this may be true in some other sense, but it is not true, it is said, for the purpose of fixing the limits of possible contempts. But here again the plaintiff in error confounds the argument as to the common law, or as to what it might be wise and humane to hold, with that concerning the state's constitutional power. If a state should see fit to provide in its Constitution that conduct otherwise amounting to a contempt should be punishable as such if occurring at any time while the court affected retained authority to modify its judgment, the 14th Amendment would not forbid. The only question for this court is the power of the state. Virginia v. Rives (Ex parte Virginia) 100 U. S. 313, 318, 25 L. ed. 667, 669; Missouri v. Dockery, 191 U. S. 165, 171, 48 L. ed. 133, 134, 24 Sup. Ct. Rep. 53. It is argued that the decisions criticized,
and in some degree that in the present case, were contrary to well-settled previous adjudications of the same court, and this allegation is regarded as giving some sort of constitutional right to the plaintiff in error. But while it is true that the United States courts do not always hold themselves bound by state decisions in cases arising before them, that principle has but a limited application to cases brought from the state courts here on writs of error. Except in exceptional cases the grounds on which the circuit courts are held authorized to follow an earlier state decision rather than a later one, or to apply the rules of commercial law as understood by this court rather than those laid down by the local tribunals, are not grounds of constitutional right, but considerations of justice or expediency. There is no constitutional right to have all general propositions of law once adopted remain unchanged. Even if it be true, as the plaintiff in error says, that the supreme court of Colorado departed from earlier and well-established precedents to meet the exigencies of this case, whatever might be thought of the justice or wisdom of such a step, the Constitution of the United States is not infringed. It is unnecessary to lay down an absolute rule beyond the possibility of exception. Exceptions have been held to exist. But, in general, the decision of a court upon a question of law, however wrong and however contrary to previous decisions, is not an infraction of the 14th Amendment merely because it is wrong or because earlier decisions are reversed.
It is argued that the articles did not constitute a contempt. In view of the answer, which sets out more plainly and in fuller detail what the articles. insinuate and suggest, and in view of the position of the plaintiff in error that he was performing a public duty, the argument for a favorable interpretation of the printed words loses some of its force. However, it is enough for us to say that they are far from showing that innocent conduct has been laid hold of as an arbitrary pretense for an arbitrary punishment. Supposing that such a case would give the plaintiff in error a standing here, anything short of that is for the state court to decide. What constitutes contempt, as well as the time during which it may be committed, is a matter of local law.
The defense upon which the plaintiff in error most relies is raised by the allegation that the articles complained of are true, and the claim of the right to prove the truth. He claimed this right under the Constitutions both of the state and of the United States, but the latter ground alone comes into consideration here, for reasons already
stated. Re Kemmler, 136 U. S. 436, 34 L. | interference with the course of justice ed. 519, 10 Sup. Ct. Rep. 930. We do not by premature statement, argument, or pause to consider whether the claim was suffi- intimidation hardly can be denied. cient in point of form, although it is easier parte Terry, 128 U. S. 289, 32 L. ed. 405, to refer to the Constitution generally for the 9 Sup. Ct. Rep. 77; Telegram Newspaper supposed right than to point to the clause Co. v. Com. 172 Mass. 294, 44 L.R.A. 159, from which it springs. We leave undecided 70 Am. St. Rep. 280, 52 N. E. 445; State the question whether there is to be found in v. Hart, 24 W. Va. 416, 49 Am. Rep. 257; the 14th Amendment a prohibition similar Myers v. State, 46 Ohio St. 473, 491, 15 to that in the 1st. But even if we were to Am. St. Rep. 638, 22 N. E. 43; Hunt v. assume that freedom of speech and freedom of Clarke, 58 L. J. Q. B. N. S. 490, 492; King the press were protected from abridgments v. Parke  2 K. B. 432. It is objecton the part not only of the United States ed that the judges were sitting in their own but also of the states, still we should be case. But the grounds upon which confar from the conclusion that the plaintiff in tempts are punished are impersonal. Uniterror would have us reach. In the first ed States v. Shipp, 203 U. S. 563, 574, 51 L. place, the main purpose of such constitu- ed. 319, 27 Sup. Ct. Rep. 165. No doubt judgtional provisions is "to prevent all such pre- es naturally would be slower to punish when vious restraints upon publications as had the contempt carried with it a personal disbeen practised by other governments," and honoring charge, but a man cannot expect they do not prevent the subsequent punish- to secure immunity from punishment by the ment of such as may be deemed contrary to proper tribunal, by adding to illegal conduct the public welfare. Com. v. Blanding, 3 a personal attack. It only remains to add Pick. 304, 313, 314, 15 Am. Dec. 214; Res- that the plaintiff in error had his day in publica v. Oswald, 1 Dall. 319, 325, 1 L. ed. court and opportunity to be heard. We have 155, 158, 1 Am. Dec. 246. The preliminary scrutinized the case, but cannot say that it freedom extends as well to the false as to shows an infraction of rights under the Conthe true; the subsequent punishment may stitution of the United States, or discloses extend as well to the true as to the false. more than the formal appeal to that instruThis was the law of criminal libel apartment in the answer to found the jurisdiction from statute in most cases, if not in all.
Com. v. Blanding, ubi supra; 4 Bl. Com. 150. In the next place, the rule applied to criminal libels applies yet more clearly to contempts. A publication likely to reach the eyes of a jury, declaring a witness in a pending cause a perjurer, would be none the less a contempt that it was true. It would tend to obstruct the administration of justice, because even a correct conclusion is not to be reached or helped in that way, if our system of trials is to be maintained. The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.
What is true with reference to a jury is true also with reference to a court. Cases like the present are more likely to arise, no doubt, when there is a jury, and the publication may affect their judgment. Judges generally perhaps are less apprehensive that publications impugning their own reasoning or motives will interfere with their administration of the law. But if a court regards, as it may, a publication concerning a matter of law pending before it, as tending toward such an interference, it may punish it as in the instance put. When a case is finished courts are subject to the same criticism as other people; but the propriety and necessity of preventing
of this court.
Writ of error dismissed.
Mr. Justice Harlan, dissenting:
I cannot agree that this writ of error should be dismissed.
By the 1st Amendment of the Constitution of the United States, it is provided that "Congress shall make no law respecting an establishment of religion, or abridging the freedom of speech, or of the press, or of the right of the people peaceably to assemble and to petition the government for redress." In the Civil Rights Cases, 109 U. S. 1, 20, 27 L. ed. 835, 843, 3 Sup. Ct. Rep. 18, it was adjudged that the 13th Amendment, although in form prohibitory, had a reflex character, in that it established and decreed universal civil and political freedom throughout the United States. In United States v. Cruikshank, 92 U. S. 542, 552, 23 L. ed. 588, 591, we held that the right of the people peaceably to assemble and to petition the government for a redress of grievances-one of the rights recognized in and protected by the 1st Amendment against hostile legislation by Congress-was an attribute of "national citizenship." So the 1st Amendment, although in form prohibitory, is to be regarded as having a reflex character, and as affirmatively recognizing freedom of speech and freedom of the press as rights belonging to citizens of the United
States; that is, those rights are to be deemed attributes of national citizenship or citizenship of the United States. No one, I take it, will hesitate to say that a judgment of a Federal court, prior to the adoption of the 14th Amendment, impairing or abridging freedom of speech or of the press, would have been in violation of the rights of "citizens of the United States" as guaranteed by the 1st Amendment; this, for the reason that the rights of free speech and a free press were, as already said, attributes of national citizenship before the 14th Amendment was made a part of the Constitution.
ding a state to deprive any person of his liberty without due process of law. It is, I think, impossible to conceive of liberty, as secured by the Constitution against hostile action, whether by the nation or by the states, which does not embrace the right to enjoy free speech and the right to have a free press.
Mr. Justice Brewer, dissenting:
While not concurring in the views expressed by Mr. Justice Harlan, I also dissent from the opinion and judgment of the court. The plaintiff in error made a distinct claim that he was denied that which he asserted to be a right guaranteed by the Federal Constitution. His claim cannot be re
ceedings for contempt be entirely disassociated from the general proceedings of the case in which the contempt is charged to have been committed. I think, therefore, that this court has jurisdiction and ought to inquire and determine the alleged rights of the plaintiff in error. As, however, the court decides that it does not have jurisdiction, and has dismissed the writ of error, it would not be fit for me to express any opinion on the merits of the case.
Now, the 14th Amendment declares, in express words, that "no state shall make or enforce any law which shall abridge the privi-garded as a frivolous one, nor can the proleges or immunities of citizens of the United States." As the 1st Amendment guaranteed the rights of free speech and of a free press against hostile action by the United States, it would seem clear that, when the 14th Amendment prohibited the states from impairing or abridging the privileges of citizens of the United States, it necessarily prohibited the states from impairing or abridging the constitutional rights of such citizens to free speech and a free press. But the court announces that it leaves undecided the specific question whether there is to be found in the 14th Amendment a prohibition as to the rights of free speech and a free press similar to that in the 1st. It yet proceeds to say that the main purpose of such constitutional provisions was to prevent all such “previous restraints" upon publications as had been practised by other governments, but not to prevent the subsequent punishment of such as may be deemed contrary to the public welfare. I cannot assent to that view, if it be meant that the legislature may impair or abridge the rights of a free press and of free speech whenever it thinks that the public welfare requires that to be done.
EDGAR C. WILLIAMS.
Cases certified-by circuit court of appeals -question of mixed law and fact.
A question of mixed law and fact, upon the decision of which the whole case turns, cannot be certified by a circuit court of appeals to the Federal Supreme Court for determination.
The public welfare cannot override consti- Argued and submitted March 14, 15, 1907.
tutional privileges, and if the rights of free speech and of a free press are, in their essence, attributes of national citizenship, as I think they are, then neither Congress nor any state, since the adoption of the 14th Amendment, can, by legislative enactments or by judicial action, impair or abridge them. In my judgment the action of the court below was in violation of the rights of free speech and a free press as guaranteed by the Constitution.
I go further and hold that the privileges of free speech and of a free press, belonging to every citizen of the United States, constitute essential parts of every man's liberty, and are protected against violation by that clause of the 14th Amendment forbid
Decided April 15, 1907.
NA CERTIFICATE from the United States Circuit Court of Appeals for the Eighth Circuit presenting a question as to the validity of a contract for the transportation of live stock. Dismissed because presenting a mixed question of law and fact.
Statement by Mr. Justice Harlan:
This case is before the court upon a question certified by the circuit court of appeals under the 6th section of the judiciary act of March 3d, 1891, providing that in every case within its appellate jurisdiction a circuit court of appeals may certify to this court any questions or propositions of law con