#237 450 *would clearly have been payable. Is not this virtually the effect of what was actually done? I think it is." um in which the dividend is paid be cash or stock, and that it may define, as it has done, *238 what dividends representing profits shall be deemed income. It surely is not clear that the enactment exceeds the power granted by the Sixteenth Amendment. And, as this court has so often said, the high prerogative of declaring an act of Congress invalid, should never be exercised except in a clear case. Sixth. If stock dividends representing profits are held exempt from taxation under the Sixteenth Amendment, the owners of the most successful businesses in America will, as the facts in this case illustrate, be able to escape taxation on a large part of what is actually their income. So far as their profits "It is but a decent respect due to the wisdom, are represented by stock received as divi- the integrity and the patriotism of the legisladends they will pay these taxes not upon tive body, by which any law is passed, to pretheir income but only upon the income of tion of the Constitution is proved beyond all reasume in favor of its validity, until its violatheir income. That such a result was intend-sonable doubt." Ogden v. Saunders, 12 Wheat. 213, 269, 6 L. Ed. 606. Mr. Justice CLARKE concurs in this opin "It is our duty, when required in the regular course of judicial proceedings, to declare an act of of the United States; but this declaration should Congress void if not within the legislative power never be made except in a clear case. Every pos ed by the people of the United States when adopting the Sixteenth Amendment is inconceivable. Our sole duty is to ascertain their intent as therein expressed.8 In terse, com-ion. prehensive language befitting the Constitution, they empowered Congress "to lay and collect taxes on incomes from whatever source derived." They intended to include thereby everything which by reasonable understanding can fairly be regarded as in-sible presumption is in favor of the validity of a come. That stock dividends representing profits are so regarded, not only by the plain people, but by investors and financiers, and by most of the courts of the country, is shown, beyond peradventure, by their acts and by their utterances. It seems to me clear, therefore, that Congress possesses the power which it exercised to make dividends representing profits, taxable as income, whether the medi Compare Rugg, C. J., Tax Commissioner v. Putnam, 227 Mass. 522, 524, 116 N. E. 904, 910 (L. R. A. 1917F, 806): "It is a grant from the sovereign people and not the exercise of a delegated power. It is a statement of general principies and not a specification of details. Amendments to such a charter of government ought to be construed in the same spirit and according to the same rules as the original. It is to be interpreted as the Constitution of a state and not as a statute or an ordinary piece of legislation. Its words must be given a construction adapted to carry into effect its purpose." shown beyond a rational doubt. One branch of the "With the exception of the extraordinary decree rendered in the Dred Scott Case, all of the acts or the portions of the acts of Congress invalidated by the courts before 1868 related to the organization of courts. Denying the power of Congress to make notes legal tender seems to be the first departure from this rule." Haines, American Doctrine of Judicial Supremacy, p. 288. The first legai tender decision was overruled in part two years later (1870), Legal Tender Cases, 12 Wall. 457, 20 L. Ed. 287; and again in 1883, Legal Tender Case, 110 U. S. 421, 4 Sup. Ct. 122, 28 L Ea. 204. (40 Sup.Ct.) (252 U. S. 239) No. 234. 1. COURTS 385(6)-ON DIRECT WRIT OF ER- On a direct writ of error to the Supreme Court, sued out under Judicial Code, § 238 (Comp. St. § 1215), because of contentions that statutes were unconstitutional, the jurisdiction continues for the purpose of disposing of other questions, though the constitutional questions have since been set at rest by other decisions. 2. CONSPIRACY 43(11)-INDICTMENT SUFFICIENTLY ALLEGED CONSPIRACY AND OVERT ACTS UNDER ESPIONAGE ACT. A count alleging that defendants conspired together and with unknown persons to commit the offense of unlawfully, feloniously, and willfully attempting to cause insubordination, disloyalty, and refusal of duty in the military and naval forces, and to the injury of the United States in, through, and by personal solicitations, public speeches, and distributing certain pamphlets which should persistently urge insubordination, etc., and that they made personal solicitations and public speeches, and distributed such pamphlets, showed a sufficiently definite averment of a conspiracy and overt acts, under Espionage Act June 15, 1917, tit. 1, 88 3, 4 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 10212c, 10212d). 7. INDICTMENT AND INFORMATION 150- In a prosecution for making false reports or PAMPHLET WITH KNOWLEDGE OF CONTENTS Where defendants distributed the pamphlet, the distribution of which was charged to constitute a violation of the Espionage Act, with full understanding of its contents, they were charged with an intent and attempt to bring about any and all such consequences as reasonably might be anticipated from its distribution. 9. ARMY AND NAVY 40-INTERPRETATION OF PAMPHLET DISTRIBUTED AND PROBABLE In a prosecution for violating the Espionage Act, by distributing a highly colored and sensational pamphlet, denouncing the war and protesting against its further prosecution, where the jury might fairly find that it would have a tendency to cause insubordination and disloyalty and refusal of duty, and amounted to an obstruction of the recruiting and enlistment 3. CONSPIRACY 26-FAILURE TO AGREE AS service, its interpretation and probable effect TO PRECISE METHOD OF VIOLATING LAW DOES A conspiracy, under Espionage Act, tit. 1, § 4 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10212d), when attempted to be carried into effect, is none the less punishable because the conspirators do not agree in advance upon the precise method in which the law shall be violated. ALLEGATIONS RE 4. CONSPIRACY 43(5) OF OVERT ACTS. The averment of a conspiracy under Espionage Act, tit. 1, § 4 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10212d), cannot be aided by allegations respecting overt acts. 5. CONSPIRACY 27-OVERT ACTS NEED NOT BE CRIMINAL ACTS. Though, under Espionage Act, tit. 1, § 4 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10212d), a mere conspiracy, without overt act done in pursuance of it, is not punishable criminally, yet the overt act need not be itself a criminal act. 6. CONSPIRACY 43(4)-INDICTMENT FAIRLY IMPORTED UNLAWFUL MOTIVE. Counts charging a violation of, and a conspiracy to violate, the Espionage Act, fairly imported an unlawful motive, where they charged that defendants unlawfully, willfully, and feloniously committed the forbidden acts. were questions for the jury. 10. ARMY AND NAVY 40-MOTIVES OF DEFENDANTS IN DISTRIBUTING PAMPHLET A QUESTION FOR THE JURY. Where the jury might reasonably have TRIBUTION OF PAMPHLET A QUESTION FOR Where the jury might reasonably have found that a pamphlet distributed by defendants would have a tendency to cause insubordination, etc., and obstruct the recruiting and enlistment service, whether it would in fact produce, as a proximate result, a material interference with the recruiting or enlistment service, or the operation or success of the forces of the United States, was a question for the jury to decide, in view of all the circumstances and the place and manner of distribution. 12. CONSPIRACY 47-ACTS OF DEFENDANT IN CONCERT IN DISTRIBUTING PAMPHLET KNOWING ITS CONTENTS CONSTITUTED SUFFICIENT EVIDENCE OF CONSPIRACY AND OVERT ACTS. Concert of action on the part of defendants in distributing, with knowledge of its contents, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes a pamphlet denouncing the war, and protesting, ments purport to constitute comment on matagainst its further prosecution, and having a ters pretended to be facts of public knowledge. tendency to cause insubordination, etc., and ob- 18. CRIMINAL LAW 1167(2)—INSUFFICIENstruct the recruiting and enlistment service, constituted sufficient evidence of a conspiracy and overt acts to sustain a conviction. 13. WAR 4 EVIDENCE ADMISSIBLE TO WITH INTENT TO INTERFERE WITH MILITARY In a prosecution for making and distributing, with intent to interfere with the operation and success of the military and naval forces, false reports and statements, including the statement that the Attorney General was so busy sending men to prison, who did not stand up when the Star Spangled Banner was played, that he had no time to protect the food supply from gamblers, testimony of the United States attorney that no federal law made it a crime not to stand up when the Star Spangled Banner was played, and that he had no knowledge of prosecutions for failure to do so, was admissible to show the falsity of such statements. 14. WAR 4 EVIDENCE ADMISSIBLE ΤΟ SHOW FALSITY OF STATEMENT DISTRIBUTED On a trial for making and distributing, with intent to interfere with the operation and success of the military and naval forces, false reports and statements, including the statement that our entry into the war was determined by the certainty that, if the Allies did not win, loans to the Allies would be repudiated, the declaration of war and the President's address to Congress on April 2d preceding were admissible to show the falsity of such statements. 15. CRIMINAL LAW 862-COMMON KNOWL- In a prosecution under the Espionage Act, the jury were warranted by common knowledge in finding that statements distributed by defendants that the Attorney General was sending men to prison for not standing up when the Star Spangled Banner was played, and that our entry into the war was determined by the certainty that, if the Allies did not win, loans to them would be repudiated, were false and known to be false by defendants, or distributed recklessly, without effort to ascertain their truth. 16. CRIMINAL LAW 741(1)—WHETHER EVIDENCE REMOVES REASONABLE DOUBT IS QUESTION FOR JURY, court. CY OF COUNT NOT GROUND FOR REVERSAL The conceded insufficiency of one count of an indictment does not warrant a reversal, where the sentences imposed did not exceed those which might lawfully have been imposed under the good counts. Mr. Justice Brandeis and Mr. Justice Holmes, dissenting. In error to the District Court of the United States for the Northern District of New York. Cinton H. Pierce and others were convicted of offenses under the Espionage Act (245 Fed. 878), and they bring error. Affirmed. See, also, 245 Fed. 888. *240 *Mr. Frederick A. Mohr, of Auburn, N. Y., for plaintiffs in error. Mr. Assistant Attorney General Stewart, for the United States. Mr. Justice PITNEY delivered the opinion of the Court. Plaintiffs in error were jointly indicted October 2, 1917, in the United States District Court for the Northern District of New York, upon six counts, of which the fourth and fifth were struck out by agreement at the trial and the first is now abandoned by the government. The second count charged that throughout *241 the period from *April 6, 1917, to the date of the presentation of the indictment, the United States being at war with the Imperial German government, defendants at the city of Albany, in the Northern district of New York and within the jurisdiction, etc., unlawfully and feloniously conspired together and with other persons to the grand jurors unknown to commit an offense against the United States, to wit: "The offense of unlawfully, feloniously and willfully attempting to cause insubordination, disloyalty and refusal of duty in the military and naval forces of the United States when the United States was at war and to the injury of the United States in, through, and by personal solicitations, public speeches and distributing Where there is substantial evidence in sup-ed States certain articles printed in pamphlets and publicly circulating throughout the Unitport of the charges, the question whether its called "The Price We Pay,' which said pameffect is to overcome any reasonable doubt of guilt is a question for the jury, and not for the phlets were to be distributed publicly throughout the Northern district of New York, and which said solicitations, speeches, articles and pamphlets would and should persistently urge insubordination, disloyalty and refusal of duty in the said military and naval forces of the United States to the injury of the United States Espionage Act June 15, 1917, tit. 1, § 3 and its military and naval service and failure (Comp. St. 1918, Comp. St. Ann. Supp. 1919, and refusal on the part of available persons § 10212c), prohibiting the making of false state- to enlist therein and should and would through ments or reports with intent to interfere with and by means above mentioned obstruct the rethe operation or success of the military or cruiting and enlistment service of the United naval forces, applies, though the false state-States when the United States was at war to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 17. WAR 4-ESPIONAGE ACT APPLIES TO FALSE STATEMENTS, THOUGH PURPORTING TO BE COMMENTS ON MATTERS OF PUBLIC KNOWL EDGE. (40 Sup.Ct.) the injury of that service and of the United | Brolan v. United States, 236 U. S. 216, 35 Sup. States." Ct. 285, 59 L. Ed. 544. For overt acts it was alleged that certain of the defendants, in the city of Albany, at times specified, made personal solicitations and public speeches, and especially that they published and distributed to certain persons named and other persons to the grand jurors unknown certain pamphlets headed "The Price We pay," a copy of which was annexed to the indictment and made a part of it. The third count charged that during the same period and on August 26, 1917, the *242 United States being at war, etc., *defendants at the city of Albany, etc., willfully and feloniously made, distributed, and conveyed to certain persons named and others to the grand jurors unknown certain false reports and false statements in certain pamphlets attached to and made a part of the indictment and headed "The Price We Pay," which false statements were in part as shown by certain extracts quoted from the pamphlet, with intent to interfere with the operation and success of the military and naval forces of the United States. *243 *It is insisted that there was error in refusing to sustain the demurrer, and this on the ground that (1) the facts and circumstances upon which the allegation of conspiracy rested were not stated; (2) there was a failure to set forth facts or circumstances showing unlawful motive or intent; (3) there was a failure to show a clear and present danger that the distribution of the pamphlet would bring about the evils that Congress sought to prevent by the enactment of the Espionage Act; and (4) that the statements contained in the pamphlet were not such as would naturally produce the forbidden consequences. [2-5] What we have recited of the second count shows a sufficiently definite averment of a conspiracy and overt acts under the provisions of title 1 of the Espionage Act. The fourth section makes criminal a conspiracy "to violate the provisions of sections two or three of this title," provided one or more of *244 the conspirators do any act to *effect the Such a conspiracy, object of the conspiracy. thus attempted to be carried into effect, is none the less punishable because the conspirThe sixth count charged that at the same place, during the same period and on Augustators fail to agree in advance upon the 27, 1917, while the United States was at war, violated. It is true the averment of the conprecise method in which the law shall be etc., defendants willfully and feloniously attempted to cause insubordination, disloyalty, spiracy cannot be aided by the allegations mutiny, and refusal of duty in the military respecting the overt acts. United States v. and naval service of the United States by Britton, 108 U. S. 199, 205, 2 Sup. Ct. 531, means of the publication, circulation, and 27 L. Ed. 698; Joplin Mercantile Co. v. United States, 236 U. S. 531, 536, 35 Sup. Ct. distribution of "The Price We Pay" to cer291, 59 L. Ed. 705. On the other hand, while tain persons named and others to the grand jurors unknown. A general demurrer was overruled, whereupon defendants pleaded not guilty and were put on trial together, with the result that Pierce, Creo, and Zeilman were found guilty upon the first, second, third, and sixth counts, and Nelson upon the third count only. Each defendant was separately sentenced to a term of imprisonment upon each count on which he had been found guilty; the several sentences of Pierce, Creo, and Zeilman, however, to run concurrently. under section 4 of the Espionage Act, as under section 37 of the Criminal Code (Comp. St. § 10201), a mere conspiracy, without overt act done in pursuance of it, is not punishable criminally, yet the overt act need not be in 1 Extract from Act June 15, 1917, c. 30, 40 Stat. 217, 219. Section 3: "Whoever, when the United States is at war, shall willfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States, or to promote the suc cess of its enemies, * and whoever, when the United States is at war, shall willfully cause, or attempt to cause, insubordination, dis loyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or shall will fully obstruct • ** the recruiting or enlistment [1] The present direct writ of error was sued out under section 238, Judicial Code (Comp. St. § 1215), because of contentions that the Selective Draft Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 2044a-2044k) and the Espionage Act (40 Stat. 217) were unconstitutional. These have since been set at rest. Selective Draft Law Cases, 245 U. S. 366, 38. Sup. Ct. 159, 62 L. Ed. 349, L. R. A. 1918C, 361, Ann. Cas. 1918B, 856; Schenck v. United States, 249 U. S. 47, 51, 39 Sup. Ct. 247, 63 L. Ed. 470; Frohwerk v. United States, 249 U. S. 204, 39 Sup. Ct. 249, 63 L. Ed. 561; Debs v. United States, 249 U. S. 211, 215, 39 Sup. Ct. 252, 63 L. Ed. 566. But our jurisdiction continues for the purpose of dis- penal laws of the United States approved March fourth, nineteen hundred and nine." Comp. St. posing of other questions raised in the record. 1918, Comp. St. Ann. Supp. 1919, §§ 10212c, 10212d. "Black death will be a guest at every American fireside. Mothers and fathers and sisters, wives and sweethearts will know the weight of that awful vacancy left by the bullet which finds its mark. "And still the recruiting officers will come; seizing age after age, mounting up to the elder ones and taking the younger ones as they grow to soldier size; [7] The third and fourth objections point to no infirmity in the averments of the indictment. Whether the statements contained in the pamphlet had a natural tendency to produce the forbidden consequences, as alleged, was a question to be determined, not upon demurrer, but by the jury at the trial. "The manhood of America gazes at that seethThere was no error in overruling the demur-ing, heaving swamp of bloody carrion in Europe, rer. Upon the trial, defendants' counsel moved that the jury be directed to acquit the defendants, upon the ground that the evidence was not sufficient to sustain a conviction. Under the exceptions taken to the refusal of this motion it is urged that there was no proof (a) of conspiracy; (b) of criminal purpose or intent; (c) of the falsity of the state *245 ments contained in the pamphlet cir*culated; (d) of knowledge on defendants' part of such falsity; or (e) of circumstances creating a danger that its circulation would produce the evils which Congress sought to prevent; and further (f) that the pamphlet itself could not legitimately be construed as tending to produce the prohibited consequences. The pamphlet "The Price We Pay"-was a highly colored and sensational document, issued by the national office of the Socialist party at Chicago, Ill., and fairly to be construed as a protest against the further prosecution of the war by the United States. It contained much in the way of denunciation of war in general, the pending war in particular; something in the way of assertion that under Socialism things would be better; little or nothing in the way of fact or argument to support the assertion. It is too long to be quoted in full. The following extracts will suffice; those indicated by italics being the same that were set forth in the body of the third count: "Conscription is upon us; the draft law is a fact! "Into your homes the recruiting officers are coming. They will take your sons of military age and impress them into the army; "Stand them up in long rows, break them into squads and platoons, teach them to deploy and wheel; "Guns will be put into their hands; they will be taught not to think, only to obey without questioning. "And still the toll of death will grow. * * and say 'Must we-be that!' |
