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(45 S.Ct.)

erty rights of those whose machines against mitted the issues properly to the jury extheir will are taken into other jurisdictions. cept possibly in one respect to which we The fourth section merely makes more shall refer.

effective the regulation contained in the [5] It appeared that Brooks, the defendthird section. The third section punishes ant, owned a garage in Sioux Falls, S. D., the transportation of a stolen automobile and that he went to Sioux City, Iowa, and with knowledge of the theft. The fourth obtained these two automobiles which had section punishes the receipt, the concealment, been stolen and transferred them to Sioux the storing, the bartering, the sale or the Falls. We cannot say that the circumstances disposition of such stolen vehicle moving were not such that a jury might properly as interstate commerce or as a part thereof infer that the defendant knew that they were with knowledge of its having been stolen. stolen and had acquired them and transOf course this section can and does apply ported them to South Dakota for the purpose only to the storing or concealment of a stolen of profiting by the transaction in stolen automobile with knowledge of its theft as goods. It is said that there was no evidence a final step in the use of interstate trans- after the cars were stored in Sioux Falls portation to promote the scheme of its un- that the defendant made any effort to selawful disposition and the withholding of crete, conceal or store them with guilty it from its owner. For these reasons we knowledge. It is not necessary for us to think that sections 3 and 4 are within the examine into this question or another mooted power of Congress. by the defendant's counsel. He contends that under the charge of the court the jury might have been led to convict the defend

[3] The constitutional question brought this case directly to this court. Being here, the other questions arising on the record must be decided. Pierce v. United States, 252 U. S. 239, 40 S. Ct. 205, 64 L. Ed. 542; Brolan v. United States, 236 C. S. 216, 35 S. Ct. 285, 59 L. Ed. 544.

[4] It is objected that the counts of the indictments failed to inform the defendant of the nature and cause of the accusation. There were two indictments with two counts each. One charged violation of section 3 in the first count and of section 4 in the second count as to one automobile. The second indictment made the same charges as to a second automobile. The charge in one under section 3 was that defendant "knowingly, unlawfully and feloniously did transport and

*440

cause to be transported in *interstate commerce" from Sioux City, Iowa, to Sioux Falls, S. D., a touring automobile describing it as of $1,000 value, the property of and belonging to one W. C. Wendt of Omaha, Neb., which said automobile theretofore on September 7th, A. D. 1921, had been stolen from Wendt, and that the defendant did not have the consent of the owner to transport it from Sioux City to Sioux Falls "all of which he, the said Rae Brooks, then and there well knew." The argument is that this does not sufficiently charge that the defendant knew that the automobile was stolen when he transported it. We think it does; that it is a reasonable construction to hold that the last words refer to the whole previous narration.

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ant on the second count in each indict*ment, on the theory that he became aware of the stolen character of the cars only after he reached Sioux Falls, and stored them after he became aware of their stolen character in Sioux Falls. This, he says, was an erroneous application of the fourth section because if his connection with the transportation was innocent, his subsequent criminal concealment of the stolen property

would be disconnected with interstate com

merce and be only a crime against the state. We do not think it necessary to pass on this question for the reason that the verdict of the jury was general, that the defendant was found guilty on both the counts of each of the two indictments and that the defendant was sentenced to 18 months on each indictment and each count, the sentences to run concurrently. As the convictions can be sustained on the first count in each indictment under the verdict, there is no ground for reversing the case because of error in charging as to the second count. Claassen v. United States, 142 U. S. 140, 146, 12 S. Ct. 169, 35 L. Ed. 966; Evans v. United States, 153 U. S. 608, 609, 14 S. Ct. 939, 38 L. Ed. 839; Abrams v. United States, 250 U. S. 616, 619, 40 S. Ct. 17, 63 L. Ed. 1173; Pierce v. United States, 252 U. S. 239, 252, 40 S. Ct. 205, 64 L. Ed. 542.

There are some objections made to the form of some questions put by the district attorney. We do not think they are shown to have been sufficiently prejudicial to justify a new trial.

The third objection is that there is no evidence of the defendant's guilt, and that the jury should have been so advised. We have read the evidence and read the charge! The judgment of the District Court is afof the court. The charge of the court sub- firmed.

(267 U. S. 442)

the taxpayers of their property without due

BARCLAY & CO., Inc., v. EDWARDS, Collec- process of law. The statute attacked in No. tor of Internal Revenue.

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1. Commerce
void as tax on exports.

Revenue Act held not

Revenue Act 1918, § 233 (b), being Comp. St. Ann. Supp. 1919, § 6336%p, imposing tax on net income of domestic corporations from all sources, including foreign business, and on income of foreign corporation from sources within the United States only, held not void as tax on exports.

2. Constitutional law 286 — Internal revenue 2-Tax on total income of domestic corporation and on only part of that of foreign corporation held not violative of due process clause.

Revenue Act 1918, § 233 (b), being Comp. St. Ann. Supp. 1919, § 6336% p, imposing tax on net income of domestic corporations from all sources, including foreign business, and on income of foreign corporations from sources within the United States only, held not violative of due process clause of Const. Amend. 5, the classification being reasonable.

3. Constitutional law 286-Classification of taxpayers not in violation of Fifth Amendment, unless arbitrary and capricious.

Power of Congress in levying taxes is very

wide, and where a classification is made of taxpayers that is reasonable, and not merely arbitrary and capricious, the Fifth Amendment of the Constitution cannot apply.

320 was the income tax of 1921; that in this
case was the income tax of 1918.

The plaintiffs in the two cases were corpo-
rations of this country engaged in the busi-
ness of the purchase and manufacture of per-
sonal property within the United States and
#447

the sale thereof without the United States.
Their objection to the taxes both of 1921 and
1918 was that they were subjected to a tax
on all of their net income, including profits
made by them in the sale of their goods
abroad, while foreign corporations engaged
in the same business of buying and manufac-
turing goods in this country and selling them
abroad were not taxed upon their whole net
income but were exempted from a tax on all
or a part of it.

Another objection to the tax was that the
tax in both instances was a tax on exports.
That was disposed of by this court in opin-
ion No. 320 by reference to the case of Peck
& Co. v. Lowe, 247 U. S. 165, 38 S. Ct. 432,
62 L. Ed. 1049.

The court further pointed out that in respect to what was called discrimination in favor of foreign corporations Congress might adopt a policy calculated to serve the best interests of this country in dealing with citizens or subjects of another country and might properly say as to earnings from business begun in one country and ending in another that the net income of foreign subjects or citizens should be left to the taxation of their own government or to that

Error to the District Court for the South- having jurisdiction of the sales; that the ern District of New York.

Action by Barclay & Co., Incorporated against William H. Edwards, Collector of Internal Revenue for the Second District of New York. From a judgment of dismissal, plaintiff brought error, and judgment was affirmed in memorandum opinion (267 U. S. 442, 45 Sup. Ct. 135, 69 L. Ed. 703). On petition for rehearing. Overruled.

question of taxing foreign corporations on such income might properly be affected by the consideration that domestic corporations had the power of the United States to protect their interests and redress their wrongs in whatever part of the world their business might take them, while the foreign corporations must look to the country of their origin for protection against injury or redress of losses occurring in countries other than the United States. Having disposed of No. 320 for these reasons in favor of the government by affirming the judgment below, a short opinion was delivered by Mr. Justice McKenna in No. 547 (267 U. S. 442, 45 S. Ct. 135, 69 L. Ed. 703), in which he said that the charge Mr. Chief Justice TAFT delivered the of invalidity in that case was on the same opinion of the Court.

Messrs. Porter J. McCumber, of Washington, D. C., and Franklin Grady, of New York City, for plaintiff in error.

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*Mr. James M. Beck, Sol. Gen., of Washington, D. C., for defendant in error.

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judgment should be aflirmed. *A petition for
rehearing seeks now to differentiate the pres-
ent case from that considered and decided
in No. 320.

On December 15, 1924, Mr. Justice McKen-grounds as those set up in No. 320, and that na delivered the opinion of this court in the upon authority of the decision in No. 320 the case of National Paper & Type Co. v. Frank K. Bowers, Collector (No. 320 of the present term) 266 U. S. 373, 45 S. Ct. 133, 69 L. Ed. That case was heard at the same time with this. They were suits to recover taxes The Revenue Act of 1918 (40 Stat. 1076, § which it was claimed had been illegally col-230 [Comp. St. Ann. Supp. 1919, § 63361⁄4nn]) lected, for the reason that the statutes un- provided for a tax of 12 per cent. on the net der which they had been exacted deprived! income in excess of certain credits upon

---.

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

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(45 S.Ct.)

domestic corporations, but contained this [cated to sources within the United States provision in case of foreign corporations, and imposed a tax on that part of such inunder section 233 (b): come allocated to manufacture, whereas the "In the case of a foreign corporation gross Revenue Act of 1918, under which this case income includes only the gross income from arose exempted from tax all income of forsources within the United States, including the eign corporations derived from the manufacinterest on bonds, notes, or other interest-ture or purchase of goods within the United bearing obligations of residents, corporate or States which they sold or disposed of in forotherwise, dividends from resident corpora- eign countries. But we do not think that tions, and including all amounts received (al- that distinction makes any difference in the though paid under a contract for the sale of goods or otherwise) representing profits on the manufacture and disposition of goods within the United States." 40 Stat. 1077 (section 6336p).

The Revenue Act of 1921 taxed the net

income (meaning the gross income, less certain deductions) of domestic corporations. 42 Stat. 252, 254, §§ 230, 232 (Comp. St. Ann. Supp. 1923, §§ 6336% nn, 633600). The same section, No. 232, provided that:

application of the principle upon which the judgment in No. 320 was based. Whatever the difference between the acts, whether the foreign corporations were wholly exempted or only partially exempted, they constituted a class all by themselves and could be properly so treated by Congress because of the considerations suggested in the opinion in No. 20. The attack made upon the law of 1921 for discrimination against American corporations in favor of foreign corporations was

*450

"In the case of a foreign corporation * the computation shall also be made in the quite as *vigorous in the briefs of counsel for manner provided in section 217."

The relevant parts of sections 217 and 233 (Comp. St. Ann. Supp. 1923, §§ 6336%hh, 6336%p) were as follows:

"Sec. 217. (a) That in the case of a nonresident alien individual or of a citizen entitled to the benefits of section 262. *

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"(e) Items of gross income, expenses, losses and deductions, other than those specified in subdivisions (a) and (c), shall be allocated or apportioned to sources within or without the United States under rules and regulations prescribed by the Commissioner with the approval of the Secretary. * Gains, profits and income from (1) transportation or other services rendered partly within and partly without the United States, or (2) from the sale of personal property produced (in whole or in part) by the taxpayer within and sold without the United States, or produced (in whole or in

#449

the plaintiffs in error in No. 320 as in No. 547 and rested on the same argument, and while the exemption of the net income of foreign corporations from manufacture in the United States did not exist in the act of 1921 as in the act of 1918, the question of discrimination in the two cases only differed in extent and did not call for any real distinction in deciding them. The question where an income is earned is always a matter of doubt when the business is begun in one country and ended in another. As pointed out by the plaintiff in error in his brief in No. 320, much of the business in such foreign trade in addition to the manufacture is done in the United States in storehouses and docks and in other ways after the manufacture, but whatever of that might be equitably allocated as done in the United States is exempted from taxation of foreign corporations by the act of 1921. Thus exactly the same question presents itself as in No. 320. It is only a difference in degree.

part) by the taxpayer *without and sold within the United States, shall be treated as derived partly from sources within and partly from sources without the United States. Gains, prof[3] The power of Congress in levying taxits and income derived from the purchase of personal property within and its sale without es is very wide and where a classification is the United States or from the purchase of per- made of taxpayers that is reasonable, and sonal property without and its sale within the not merely arbitrary and capricious, the United States, shall be treated as derived en- Fifth Amendment cannot apply. As this tirely from the country in which sold. * * "court said, speaking of the taxing power of 42 Stat. 243, 244, 245. Congress, in Evans v. Gore, 253 U. S. 245, "Sec. 233. * 256, 40 S. Ct. 550, 554 (64 L. Ed. 887, 11 A. L. R. 519):

*

*

"(b) In the case of a foreign corporation, gross income means only gross income from sources within the United States, determined (except in the case of insurance companies subject to the tax imposed by sections 243 or 246) in the manner provided in section 217." 42 Stat. 254.

[1, 2] Counsel contend in their petition for rehearing that the Revenue Act of 1921 provided with respect to the manufacture within the United States by foreign corporations of goods which they sold in foreign countries that the income derived should be allo

"It may be applied to every object within its range in such measure as Congress may determine,' enables that body to select one calling and omit another, to tax one class of property and to forbear to tax another,' and may be applied in different ways to different objects so long as there is 'geographical uniformity' in the duties, imposts and excises 316, 431; Pacific Insurance Co. v. Soule, 7 Wall. McCulloch v. Maryland, 4 Wheat. imposed. 433, 443; Austin v. Aldermen, 7 Wall. 694, 699; Veazie Bank v. Fenno, 8 Wall, 533, 541, 548; Knowlton v. Moore, 178 U. S. 41, 92, 106;

Treat v. White, 181 U. S. 264, 268, 269; Mc- might legitimately be imposed on them, but

*451

Cray v. United States, 195 U. S. 27, 61; Flint

v. Stone Tracy Co., 220 U. S. 107, 158; Billings v. United States, 232 U. S. 261, 282; Brushaber v. Union Pacific R. R. Co., 240 U. S. 1, 24–26."

act.

which Congress does not think it wise to exSuch considerations justify a different classification of foreign corporations doing business in the United States either of manufacture or purchase and making profit out The power of Congress to make a differ- of that business in other countries from that ence between the tax on foreign corporations which would apply to its own corporations. and that of domestic corporations is not The injustice thought to be worked upon domeasured by the same rule as that for de-mestic corporations engaged in sales abroad termining whether taxes imposed by one state upon the profits of a manufacturing corporation are an imposition of tax upon a subject-matter not within the jurisdiction of the taxing state. Cases on that subject like Underwood Typewriter Co. v. Chamberlain, 254 U. S. 113, 41 S. Ct. 45, 65 L. Ed. 165, have no application to the question here. Considerations of policy toward foreign countries may very well justify an exemption of the foreign corporations from taxes that ruled.

by a different classification for purposes of taxation of foreign corporations similarly engaged is an argument, not for the constitutional invalidity of the law before a court, but for its repeal before Congress.

The opinion of Mr. Justice McKenna applying the same principles in this case to those applied in No. 320 was entirely justified, and the petition for rehearing is over

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No. 226. Sallie CANARD, plaintiff in error, v. R. E. SNELL, Jr., et al. March 2, 1925. In error to the Supreme Court of the State of Oklahoma. For opinion below, see 95 Okl. 145, 218 P. 813. Mr. Lewis C. Lawson, of Holdenville, Okl., for plaintiff in error.

PER CURIAM. Dismissed for the want of jurisdiction upon the authority of section 237 of the Judicial Code, as amended by the act of September 6, 1916, c. 448, sec. 2, 39 Stat. 726 (Comp. St. § 1214); Jett Bros. Distilling Co. v. Carrollton, 252 U. S. 1, 5, 6, 40 S. Ct. 255, 64 L. Ed. 421. Petition for a writ of certiorari herein denied.

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No. 254. Joseley TIGER, plaintiff in error, v. Aaron DRUMRIGHT et al. March 2, 1925. In error to the Supreme Court of the State of Oklahoma. For opinion below, see 95 Okl. 174, 217 P. 453. Mr. Lewis C. Lawson, of Holdenville, Okl., for plaintiff in error.

PER CURIAM. Dismissed for the want of jurisdiction upon the authority of section 237 of the Judicial Code, as amended by the act of September 6, 1916, c. 448, § 2, 39 Stat. 726 (Comp. St. § 1214); Jett Bros. Distilling Co. v. Carrollton, 252 U. S. 1, 5, 6, 40 S. Ct. 255, 64 L. Ed. 421.

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No. 267. W. C. SINGLETON, plaintiff in March error, v. The STATE OF GEORGIA. 2, 1925. In error to the Court of Appeals of the State of Georgia. For opinion below, see 30 Ga. App. 670, 117 S. E. 670. Mr. John R. Cooper, of Macon, Ga., for plaintiff in error.

PER CURIAM. Dismissed for the want of jurisdiction, upon the authority of section 237 of the Judicial Code, as amended by the act of September 6, 1916, c. 448, § 2, 39 Stat. 726 (Comp. St. § 1214); Jett Bros. Distilling Co. v. Carrollton, 252 U. S. 1, 5, 6, 40 S. Ct. 255, 64 L. Ed. 421.

(267 U. S. 609)

(45 S.Ct.)

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No. 341. The UNITED STATES of America, plaintiff in error, v. Lucia NAPONIELLO et al. March 2, 1925. In error to the District Court of the United States for the Northern District of Illinois. See, also, 291 F. 1008. The Attorney General, for the United States. PER CURIAM. Dismissed for the want of jurisdiction upon the authority of Farmers and Mechanics National Bank v. Wilkinson, 266 U. S. 503, 45 S. Ct. 144, 69 L. Ed.; decided January 5, 1925; Union Trust Co. v. Westhus, 228 U. S. 519, 522-524, 33 S. Ct. 593, 57 L. Ed. 947; Brown v. Alton Water Co., 222 U. S. 325, 331-334, 32 S. Ct. 156, 56 L. Ed. 221.

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No. 389. GUARDIAN SAVINGS & TRUST COMPANY, Trustee, petitioner, v. ROAD IMPROVEMENT DISTRICT NO. 7 OF POINSETT COUNTY, ARKANSAS. March 2, 1925. For former opinion, see 267 U. S. 1, 45 S. Ct. 201, 69 L. Ed. -. Messrs. G. B. Rose, D. H. Cantrell, J. F. Loughborough, and A. W. Dobyns, all of Little Rock, Ark., for petitioner. Mr. Henry D. Ashley, of Kansas City, Mo., for respondent.

Order. It is ordered by this court that the direction in the opinion heretofore filed to send the case back to the District Court of the United States for the Eastern District of Arkansas is changed, and the case sent back to the United States Circuit Court of Appeals for the Eighth Circuit for further proceedings, and the mandate already issued shall be amended accordingly.

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Angeles, Cal., for appellant Atchison, T. & S. F. R. Co. Messrs. Max C. Sloss, Henley Clifton Booth and William F. Herrin, all of San Francisco, Cal., for appellant Southern Pac. Co. Dismissed, per stipulation.

No. 487. FARMERS & MECHANICS NATIONAL BANK OF FORT WORTH, TEXAS, appellant, V. W. W. WILKINSON et al. March 2, 1925. For former opinion, see 266 U. S. 503, 45 S. Ct. 144, 69 L. Ed. -. Mr. Charles A. Boynton, of Waco, Tex., for appellant. Mr. Mark McMahon, of Fort Worth, Tex., for appellees.

Order. It is ordered by this court that the opinion heretofore filed be amended by striking from the sixth line the word "appellant," and from the seventh line the words "in the meantime, having," and by inserting in the seventh line between the word "note," and the word "appellant," the words "and, thereafter."

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No. 562. CORBY'S ESTATE, plaintiff in error, v. The CITY OF ST. JOSEPH. March 2, 1925. In error to the Supreme Court of the State of Missouri. For opinion below, see 263 S. W. 97. Mr. John E. Dolman, of St. Joseph, Mo., for plaintiff in error.

PER CURIAM. Dismissed for the want of of the Judicial Code, as amended by the act of jurisdiction, upon the authority of section 237 September 6, 1916, c. 448, § 2, 39 Stat. 726 v. Carrollton, 252 U. S. 1, 5, 6, 40 S. Ct. 255, (Comp. St. § 1214); Jett Bros. Distilling Co. 64 L. Ed. 421.

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No. 590. J. C. CROWSON, plaintiff in error, v. Michael CODY et al. March 2, 1925. In error to the Supreme Court of the State of Alabama. Petition for rehearing denied. For former opinion, see 266 U. S. 590, 45 S. Ct. 195, 69 L. Ed. Mr. W. A. Gunter, of Montgomery, Ala., for plaintiff in error.

PER CURIAM. Dismissed for the want of

jurisdiction upon the authority of section 237

of the Judicial Code, as amended by the act of September 6, 1916, c. 448, § 2, 39 Stat. 726 (Comp. St. § 1214); Jett Bros. Distilling Co. v. Carrollton, 252 U. S. 1, 5, 6, 40 S. Ct. 255, 64 L. Ed. 421; Ireland v. Woods, 246 U. S. 323, 328, 38 S. Ct. 319, 62 L. Ed. 745; Stadelman v. Miner, 246 U. S. 544, 546, 38 S. Ct. 359, 62 L. Ed. 875; Chicago Great Western R. R. Co. v. Basham, 249 U. S. 164, 165, 39 S.

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