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543, 550, 51 L. ed. 310, 27 Sup. Ct. Rep. 174. S. 278, 46 L. ed. 196, 22 Sup. Ct. Rep. 213, See also Re Sherman, 153 N. Y. 1, 4, 46 N. adopting the New York view, 183 U. S. 289, E. 1032. For that reason the power is more 46 L. ed. 202, 22 Sup. Ct. Rep. 213. And unlimited than the power of a state to tax these decisions and some of the other de. transfers generally, or the power of the cisions of this court cited above were relied United States to levy an inheritance tax. upon by the court of appeals. 176 N. Y. The distinction between state and United 492, 64 L.R.A. 279, 68 N. E. 871. See, furStates inheritance taxes was recognized in ther, Re Vanderbilt, 50 App. Div. 246, 63 Knowlton v. Moore, 178 U. S. 41, 58, 44 L. N. Y. Supp. 1079, Affirmed in 163 N. Y. 597, ed. 969, 976, 20 Sup. Ct. Rep. 747, and 57 N. E. 1127; Re Lansing, 182 N. Y. 238, whatever may be thought of the decision in 248, 74 N. Y. 882. Probably the tax would Snyder v. Bettman, 190 U. S. 249, 47 L. ed. be invalid for other local reasons besides 1035, 23 Sup. Ct. Rep. 803, I do not under those mentioned in Re Dows, but for the stand it to import a denial of the distinction construction which it has received. Re Pell, reaffirmed by the dissenting members of the 171 N. Y. 48, 60, 57 L.R.A. 540, 89 Am. court. 190 U. S. 256, 47 L. ed. 1038, 23 Sup. St. Rep. 791, 63 N. E. 789. Ct. Rep. 803.
This being, then, a succession tax, I If, then, a given state tax must be held to should have thought it plain that there was be a succession tax in order to maintain its no succession for it to operate upon. More validity, or if in fact it is held to be a suc- precisely, even if otherwise any element of cession tax by the state court of which it succession could have been found,-a matter is the province to decide that matter, it that I think would need explanation,—the follows that such a tax cannot be levied ex-execution of the power did not depend in cept where there is a succession, and when any way upon the continued co-operation of some element or step necessary to complete the laws of New York by way of permission it still is wanting when the tax law goes or grant. I am not concerned to criticize into effect. If some element is wanting at the statement of the court of appeals that that time, the succession depends, for takin substance it is the execution of the power ing effect, on the continuance of the per that gives to the grantee the property passmission to succeed or grant of the right on ing under it. It is enough if it is rememthe part of the state; and, as the grant may bered that the instrument executing the be withdrawn, it may be qualified by a tax. power derives none of its efficiency in that But if there is no succession, or if the suc. respect from the present laws of New York. cession has fully vested, or has passed be. It is true that the instrument happens to yond dependence upon the continuing of be a will, and that it could not have operthe state's permission or grant, an attempt ated as a will except by the grant of the to levy a tax under the power to regulate privilege from the state at the time when succession would be an attempt to appro- Mrs. Delano died. But what would execute priate property in a way which the 14th the power depended, in the first place, upon Amendment has been construed to forbid. the deed creating it, and if that deed did not No matter what other taxes might be levied, require a will, but only an instrument othera succession tax could not be, and so it has wise sufficiently characterized, it did not been decided in New York, Re Pell, 171 N. matter whether the instrument was also Y. 48, 55, 57 L.R.A. 540, 89 Am. St. Rep. good as a will or not. Ela v. Edwards, 16 791, 63 N. E. 789; Re Seaman, 147 N. Y. Gray, 91, 100. 69, 41 N. E. 401.
What the deeds which I am considering It is not denied that the tax under con- required was "an instrument in its nature sideration is a succession tax. The court of testamentary, to be acknowledged by her appeals treated it as such in the present (Mrs. Delano) as a deed in the presence of case. It said: “If the power had been extwo witnesses, or published by her as a ercised by deed, a different question would will.” The language was chosen carefully, have arisen ; but it was exercised by will, I presume, in view of the incapacities of and, owing to the full and complete control married women at that time. By the terms by the legislature of the making, the form, used a will was unnecessary. It was enough and the substance, of wills, it can impose if Mrs. Delano sealed and acknowledged an a charge or tax for doing anything by will." instrument in its nature testamentary, in Re Delano, 176 N. Y. 486, 494, 64 L.R.A. the presence of two witnesses, whether it 279, 282, 68 N. E. 871, 873, Reversing 82 was good as a will or not. Strong v. -WilApp. Div. 147, 81 N. Y. Supp. 762. That it kin, 1 Barb. Ch. 9, 13; Heath v. Withing. was such a tax and valid for that reason was ton, 6 Cush. 497. This she did. In Orr v. decided in Re Dows, 167 N. Y. 227, 52 L.R.A. Gilman, 183 U. S. 278, 46 L. ed. 196, 22 433, 88 Am. St. Rep. 509, 60 N. E. 439, Af- Sup. Ct. Rep. 213, the power was created firmed by this court. Orr v. Gilman, 183 U.' by will, and, what is more obviously material, it required a will for its execution, and Error to state court-frivolousness of Fedso might be held to invoke and submit itself eral question. to the law in force when the execution 4. The claim of a right under the Fed. should take place. Therefore that case has eral Constitution to prove the truth of cer. no bearing upon this. The ground upon
tain published articles held to constitute a which this tax is imposed is, I repeat, the contempt of court is too clearly unfounded
to serve as the basis of a writ of error from right of the state to regulate, or, if it sees the Federal Supreme Court to a state court. fit, to destroy, inheritances. If it might have not appropriated the whole it cannot
[No. 223.] 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
1907. state might have derived an equal revenue from these donees in the form of a tax. I IN ERROR to the Supreme Court of the do not understand it to be suggested that
State of Colorado to review a judgment the state, without compensation, could have upon an information for contempt. Dis. appropriated the remainder after Mrs. De missed for want of jurisdiction. lano's life, which Mr. Astor parted with in
See same case below (Colo.) 84 Pac. 912. 1844 and shortly following years.
The facts are stated in the opinion. could not have done so I am unable to see
Messrs. Thomas M. Patterson in propria on what ground this tax is not void. The persona, Harry M. Teller, Charles S. ThomEnglish decisions throw no light upon the as, Sterling B. Toney, James H. Blood, Har. question before us because they are convey Riddell, S. W. Belford, John A. Rush, cerned only with the construction of stat. ) and Richardson & Hawkins for plaintiff in utes which, however construed, are law.
Messrs. I. B. Melville, Horace G. Phelps, Mr. Justice Moody concurs in this dissent. Samuel Huston Thompson, Jr., William H.
Dickson, and N. C. Miller for defendant in
THOMAS M. PATTERSON, Piff. in Err., Mr. Justice Holmes delivered the opinion v.
of the court: PEOPLE OF THE STATE OF COLORADO This is a writ of error to review a judg.
EX REL. ATTORNEY GENERAL OF ment upon an information for contempt. THE STATE OF COLORADO.
84 Pac. 912. The contempt alleged was the Error to state court-Federal question—10- which, it was charged, reflected upon the
publication of certain articles and a cartoon, cal law.
1. The objections that the information motives and conduct of the supreme court of in contempt was not supported by an affi- Colorado in cases still pending, and were indavit until after it was filed, and that the tended to embarrass the court in the imsuits referred to in the published articles partial administration of justice. There complained of as constituting the contempt was a motion to quash on grounds of local were not then pending, present questions of law and the state Constitution and also local law, which will not sustain a writ of of the 14th Amendment to the Constitution error from the Federal Supreme Court to a of the United States. This was overruled state court.
and thereupon an answer was filed, admitError to state court-Federal question.
ting the publication, denying the contempt, 2. A decision of a state court upon a question of law cannot be reviewed in the also denying that the cases referred to were Federal Supreme Court as presenting a
still pending, except that the time for moquestion of the violation of the 14th tions for rehearing had not elapsed, and Amendment to the Federal Constitution beaverring that the motions for rehearing subcause such decision is asserted to be wrong, sequently were overruled, except that in and contrary to previous decisions of the certain cases the orders were amended so same court.
that the Democratic officeholders concerned Error to state court-Federal question. could be sooner turned out of their offices.
3. The objection that certain published The answer went on to narrate the transacarticles did not constitute a contempt of tions commented on, at length, intimating court does not present a question which that the conduct of the court was unconstiwill sustain a writ of error from the Fed: tutional and usurping, and alleging that it eral Supreme Court to a state court; at least, where there is no showing that inno- was in aid of a scheme, fully explained, to cent conduct has been laid hold of as an
seat various Republican candidates, includarbitrary pretense for an arbitrary punish- ing the governor of the state, in place of ment.
Democrats who had been elected, and that two of the judges of the court got their seats and in some degree that in the present case, as a part of the scheme. Finally the answer were contrary to well-settled previous adalleged that the respondent published the judications of the same court, and this al. articles in pursuance of what he regarded as legation is regarded as giving some sort of a public duty, repeated the previous objec- constitutional right to the plaintiff in error. tions to the information, averred the truth But while it is true that the United States of the articles, and set up and claimed the courts do not always hold themselves bound right to prove the truth under the Constitu- by state decisions in cases arising before tion of the United States. Upon this an- them, that principle has but a limited apswer the court, on motion, ordered judgment plication to cases brought from the state fining the plaintiff in error for contempt. courts here on writs of error. Except in
The foregoing proceedings are set forth exceptional cases the grounds on which the in a bill of exceptions, and several errors are circuit courts are held authorized to follow alleged. The difficulties with those most an earlier state decision rather than a later pressed is that they raise questions of local one, or to apply the rules of commercial law law, which are not open to re-examination as understood by this court rather than here. The requirement in the 14th Amend- those laid down by the local tribunals, are ment of due process of law does not take up not grounds of constitutional right, but conthe special provisions of the state Constitu- siderations of justice or expediency. There tion and laws into the 14th Amendment for is no constitutional right to have all genthe purposes of the case, and in that way eral propositions of law once adopted resubject a state decision that they have been main unchanged. Even if it be true, as the complied with to revision by this court. plaintiff in error says, that the supreme French v. Taylor, 199 U. S. 274, 278, 50 L. court of Colorado departed from earlier and ed. 189, 192, 26 Sup. Ct. Rep. 76; Rawlins well-established precedents to meet the exiv. Georgia, 201 U. S. 638, 639, 50 L. ed. 899, gencies of this case, whatever might be 900, 26 Sup. Ct. Rep. 560; Burt v. Smith, 203 thought of the justice or wisdom of such a U. S. 129, 135, 51 L. ed. 121, 27 Sup. Ct. Rep. step, the Constitution of the United States 37. For this reason, if for no other, the ob- is not infringed. It is unnecessary to lay jection that the information was not sup- down an absolute rule beyond the possibilported by an affidavit until after it was filed ity of exception. Exceptions have been held cannot be considered. See, further, Ex parte to exist. But, in general, the decision of a Wall, 107 U. S. 265, 27 L. ed. 552, 2 Sup. court upon a question of law, however wrong Ct. Rep. 569. The same is true of the con- and however contrary to previous decisions, tention that the suits referred to in the is not an infraction of the 14th Amendment article complained of were not pending. merely because it is wrong or because earWhether a case shall be regarded as pend- lier decisions are reversed. ing while it is possible that a petition for It is argued that the articles did not conrehearing may be filed, or, if in an appellate stitute a contempt. In view of the answer, court, until the remittitur is issued, are which sets out more plainly and in fuller dequestions which the local law can settle as tail what the articles, insinuate and suggest, it pleases without interference from the and in view of the position of the plaintiff Constitution of the United States. It is ad- in error that he was performing a public mitted that this may be true in some other duty, the argument for a favorable intersense, but it is not true, it is said, for the pretation of the printed words loses some of purpose of fixing the limits of possible con- its force. However, it is enough for us to tempts. But here again the plaintiff in er- say that they are far from showing that inror confounds the argument as to the com- nocent conduct has been laid hold of as an mon law, or as to what it might be wise and arbitrary pretense for an arbitrary punishhumane to hold, with that concerning the ment. Supposing that such a case would state's constitutional power. If a state give the plaintiff in error a standing here, should see fit to provide in its Constitution anything short of that is for the state court that conduct otherwise amounting to a con
to decide. What constitutes contempt, as tempt should be punishable as such if occur
well as the time during which it may be ring at any time while the court affected re- committed, is a matter of local law. tained authority to modify its judgment, the The defense upon which the plaintiff in er24th Amendment would not forbid. The ror most relies is raised by the allegation only question for this court is the power of that the articles complained of are true, , the state. Virginia v. Rives (Ex parte Vir- and the claim of the right to prove the ginia) 100 U. S. 313, 318, 25 L. ed. 667, truth. He claimed this right under the Con669; Missouri v. Dockery, 191 U. S. 165, stitutions both of the state and of the Unit171, 48 L. ed. 133, 134, 24 Sup. Ct. Rep. 53. ed States, but the latter ground alone comes
It is argued that the decisions criticized, I 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. Ex 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 instru. This was the law of criminal libel apartment in the answer to found the jurisdiction from statute in most cases, if not in all of this court. Com. v. Blanding, ubi supra; 4 Bl. Com. 150. Writ of error dismissed.
In the next place, the rule applied to criminal libels applies yet more clearly to Mr. Justice Harlan, dissenting: contempts. A publication likely to reach the
I cannot agree that this writ of error eyes of a jury, declaring a witness in a pend- should be dismissed. ing cause a perjurer, would be none the less
By the 1st Amendment of the Constitution a contempt that it was true. It would tend of the United States, it is provided that to obstruct the administration of justice, “Congress shall make no law respecting an because even a correct conclusion is not to establishment of religion, or abridging the be reached or helped in that way, if our freedom of speech, or of the press, or of the system of trials is to be maintained. The right of the people peaceably to assemble theory of our system is that the conclusions and to petition the government for redress.” to be reached in a case will be induced only In the Civil Rights Cases, 109 U. S. 1, 20, by evidence and argument in open court, and 27 L. ed. 835, 843, 3 Sup. Ct. Rep. 18, it was not by any outside influence, whether of pri-adjudged that the 13th Amendment, alvate talk or public print.
though in form prohibitory, had a reflex What is true with reference to a jury is character, in that it established and decreed true also with reference to a court.
Cases universal civil and political
political freedom like the present are more likely to arise, no throughout the United States. In United doubt, when there is a jury, and the pub-States v. Cruikshank, 92 U. S. 542, 552, 23 lication may affect their judgment. Judges L. ed. 588, 591, we held that the right of generally perhaps are less apprehensive the people peaceably to assemble and to petithat publications impugning their own tion the government for a redress of grievreasoning or motives will interfere with ances—one of the rights recognized in and their administration of the law. But if protected by the 1st Amendment against hosa court regards, as it may, a publication tile legislation by Congress—was an attriconcerning a matter of law pending before bute of “national citizenship.” So the 1st it, as tending toward such an interference, Amendment, although in form prohibitory, it may punish it as in the instance put. is to be regarded as having a reflex characWhen a case is finished courts are subject ter, and as affirmatively recognizing freedom to the same criticism as other people; but of speech and freedom of the press as the propriety and necessity of preventing rights belonging to citizens of the United
States; that is, those rights are to be ding a state to deprive any person of his deemed attributes of national citizenship liberty without due process of law. It is, I or citizenship of the United States. No one, think, impossible to conceive of liberty, as I take it, will hesitate to say that a judg. secured by the Constitution against hostile ment of a Federal court, prior to the adop- action, whether by the nation or by the tion of the 14th Amendment, impairing or states, which does not embrace the right to abridging freedom of speech or of the press, enjoy free speech and the right to have a would have been in violation of the rights free press. of "citizens of the United States” as guaranteed by the 1st Amendment; this, for the Mr. Justice Brewer, dissenting: reason that the rights of free speech and a While not concurring in the views exfree press were, as already said, attributes pressed by Mr. Justice Harlan, I also disof national citizenship before the 14th sent from the opinion and judgment of the Amendment was made a part of the Consti-court. The plaintiff in error made a distinct tution.
claim that he was denied that which he Now, the 14th Amendment declares, in ex. asserted to be a right guaranteed by the Fedpress words, that “no state shall make or en-eral Constitution. His claim cannot be reforce any law which shall abridge the privi- garded as a frivolous one, nor can the proleges or immunities of citizens of the Unit-ceedings for contempt be entirely disassoed States.” As the 1st Amendment guaran. ciated from the general proceedings of the teed the rights of free speech and of a free case in which the contempt is charged to press against hostile action by the United have been committed. I think, therefore, States, it would seem clear that, when the that this court has jurisdiction and ought 14th Amendment prohibited the states from to inquire and determine the alleged rights impairing or abridging the privileges of cit- of the plaintiff in error. As, however, the izens of the United States, it necessarily court decides that it does not have jur prohibited the states from impairing or
or tion, and has dismissed the writ of error, abridging the constitutional rights of such it would not be fit for me to express any citizens to free speech and a free press. But opinion on the merits of the case. 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 CHICAGO, BURLINGTON, &
RAILWAY COMPANY. press similar to that in the 1st. It yet proceeds to say that the main purpose of such
EDGAR C. WILLIAMS. constitutional provisions was to prevent all such “previous restraints” upon publications
Cases certified-by circuit court of appeals as had been practised by other governments,
-question of mixed law and fact. but not to prevent the subsequent punish
A question of mixed law and fact, ment of such as may be deemed contrary to upon the decision of which the whole case the public welfare. I cannot assent to that s turns, cannot be certified by a circuit court view, if it be meant that the legislature may of appeals to the Federal Supreme Court for
determination. impair or abridge the rights of a free press and of free speech whenever it thinks that
[No. 243.] the public welfare requires that to be done. tutional privileges, and if the rights of free. Argued and submitted March 14, 15, 1907.
Decided April 15, 1907. speech and of a free press are, in their essence, attributes of national citizenship, as NA CERTIFICATE from the United
ON I think they are, then neither Congress nor States Circuit Court of Appeals for the any state, since the adoption of the 14th Eighth Circuit presenting a question as to Amendment, can, by legislative enactments the validity of a contract for the transporor by judicial action, impair or abridge tation of live stock. Dismissed because prethem. In my judgment the action of the senting a mixed question of law and fact. court below was in violation of the rights of free speech and a free press as guaranteed Statement by Mr. Justice Harlan: by the Constitution.
This case is before the court upon a quegI go further and hold that the privileges tion certified by the circuit court of appeals of free speech and of a free press, belonging under the 6th section of the judiciary act of to every citizen of the United States, con March 3d, 1891, providing that in every case stitute essential parts of every man's liber.within its appellate jurisdiction a circuit ty, and are protected against violation by court of appeals may certify to this court that clause of the 14th Amendment forbid. I any questions or propositions of law con.