Respondents Brief — California ex rel. Brown v. St. Louis Union Trust Co.

DEC 29

| HAROLD B. WHL

IN THE

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1954,

No, 32,

STATE OF CALIFORNIA on Relation of Edmund G. Brown,

Attorney General, and Rebert C. Kirkwood,

State Controller,

Plaintiff and Petitioner,

ST. LOUIS UNION TRUST COMPANY, a Corporation

Organized Under the Laws of the State of Missouri,

Defendant and Respondent.

On Writ of Certiorari to the St. Louis Court of Appeals

of the State of Missouri.

CHAS. D. LONG and

MILTON YAWITZ,

Counsel for Respondent.

RASSIEUR, LONG & YAWITZ and

ROBERT H. BATTS,

418 Olive Street,

St. Louis 2, Missouri,

Of Counsel,

ft. Louis Law Parwrine Co. 415 North Bighth Street. CEntral 1-4477.

SUBJECT INDEX.

Page

PD EY do eeccdsnceccterccdvscnbcerventnases 1

ES EEG SSS PARDO AR a eS Pa ?

NE gre eccdswhinehecKeenesbosessue ss 2

i nich esutedvieeadesoseseesicaveuone 4

i ths sei siek ice ndeeen diese <neheewees s

Summary of argument.............. 0... .0cceeeeeee 11

PE ieteleccn cds ewe ian cdeesad re nedent ster ear 14

A. The construction by Missouri courts that the

cause of action created by the California statutes

is intransitory in nature presents no federal ques-

SN cakeed nduul cennewnedeeecoores cave coesei ce 14

Inasmuch as the decision of the St. Louis Court of

Appeals rests on the ground, among others, that

there was no competent evidence before the Mis-

souri courts from which they could have deter-

mined the amount of inheritance taxes allegedly

due California, this Court will not attempt to ex-

amine other grounds which might possibly involve

IES bass Dubwiswusi tudedadewedawess 18

Petitioner having failed to raise any constitutional

questions in its application for transfer to the

Supreme Court of Missouri, and having failed to

assert any specifie federal rights or questions in

its original or amended pleadings in the trial court,

cannot now assert such rights or raise such ques-

rome

a

cad

Since the original California judgment was not res

judicata or binding against respondent, its admis-

sion in evidence and its use as a basis for a judg-

ment against respondent in a Missouri court would

be a deprivation of property without due process

of law, contrary to the Fourteenth Amendment to

the Constitution of the United States..........., 99

California statutes cannot confer or impose upon

Missouri courts a jurisdiction and a mode of pro-

cedure for the determination and assessment of

California inheritance taxes entirely alien to the

Missouri Code of Civil Procedure................ 95

ES pa ere as eR pita, pny ee ea ne ees SRN 30

TABLE OF AUTHORITIES CLTED.

Cases Cited.

Allen v. Allegheny Co., 196 U. S. 458, 49 L. ed. 551, 25

ete era oles bec nghed uteeet eCeRUeeet 16, 18

Allen v. Arguimbau, 198 U. S. 149, 49 L. ed. 990, 25

6 ee ok ace ns chek newee eb ceh shel e Oakein 20

Atchison, Topeka & Santa Fe Railway Company vy.

Sawers, 213 U.S. 55, 70, 53 L. ed. 695, 702, 29'S. Ct.

Oe FE ET TEE eT TTR TEE ER ee 28

Bailey v. Anderson, 326 U. S, 2038, 90 L. ed. 3, 66

Oe ee sal ess eeet hewn veeern denen 13, 22

Banholzer v. New York Life Ins. Co., 178 U. S. 402, 44

Ba, ey A a Ge ean vncsenseseccereeeens 16, 18

Broderick v. Rosner, 294 U. 8S. 629, 643, 79 L. ed. 1100,

1108, 55 S. Ct. 589, 100 A. L. R. 1133............... 3 |

Buck v. California, 343 U. 8S. 99, 96 L. ed. 775, 72S. Ct.

~~ ~ are, = er, Oe

_

Davis v. P. EB. Harris & Co., 25 Wash. 2d 664, 171 P. 2d

iii

DE <\- cenuycge seven seth henssecvesasecevessusees 7

Dull v. Blackman, 169 U. S. 248, 42 L. ed. 733, 18S. Ct.

Perr Terr rr TT rrr Terr Tre rT Ter TTT erie 24

) Finney v. Guy, 189 U. S. 335, 47 L. ed. 839, 23.8, Ct.

BP err cak cy dab cau crei Genk ey nvnevstonecukets 16, 18

First National Bank of Chicago v. United Air Lines,

342 U. S. 396, 398, 96 L. ed. 441, 445, 72'S. Ct. 421... 28

First National Bank v. Dowdy, 175 Mo. App. 478, 482,

SE Wl pA Meas oo hes ebecSebebeeceteseeness 24

Fourth National Bank v. Francklyn, 120 U. 8S. 747, 753,

oe rr rk © Oe, OM Wi oc cee vescsegeceeseces 27

Fox Film Corp. v. Muller, 296 U. S. 207, 80 L. ed. 158,

Pe OE Mc cdvevnbubausbubebedescanenecsveees 20

Galveston TI. & S. A. R. Co. v. Wallace, 228 U.S. 481,

490, 56 L. ed. 516, 522, 32 S. Ct. 205.............05. 7

Glenn v. Garth, 147 U. S. 360, 37 L. ed. 208, 13 8. Ct.

” gpatrener Aas DENS Osage Re nlite ois ah gy Paleerts 11,16

Herndon v. Georgia, 295 U. S. 441, 79 L. ed. 1530, 55

i er Ure r cue ESOL Eee heen esha tenn an 29

Hughes v. Fetter, 341 U. S. 609, 611, 95 L. ed, 1212,

Se wee Oe ea cbc ove avieey déccnet bake keevs 2s

In re Atwell’s Estate, 85 Cal. App. 2d 454, 1983 P. 2d

ac era as Ne ee i bli a eae 2%6

In re Rath’s Estate, 10 Cal. 2d 399, 75 P. 2d 509, 115

a LL. © lee le ids avny Eu aoe Oe e ee O eek Se 26

John v. Paullin, 231 U. S. 583, 58 L. ed. 381, 34 8S. Ct.

Rn re a Ree PE Seg ied oi ol Ct incon 22

Klinger v. Missouri, 13 Wall. (80 U. 8S.) 257, 20 L. ed.

ES a ace IIR et BREE SS 2 GR rd A 13, 20

Louisville & Nashville Railroad Company vy. Melton,

218 U. S. 36, 54 L. ed. 921, 30 S. Ct. 676........ 16, 17-18

iv

Lynch v. New York ex rel. Pierson, 293 U. S. 52, 79 L.

I ee ag ”

MeDonald v. Mabee, 243 U. S. 90, 61 L. ed. 608, 37 §S.

ee ee OO nas cv euncnceduwieeca 24

Mosely v. Empire Gas & Fuel Company, 313 Mo. 225,

245, 281 S. W. 762, 767, 768, 45 A. L. R. 1223........ 97

Parker v. Illinois, 333 U. S. 571, 92 L. ed. 886, 68 S. Ct.

DP aleb ened pdechevdoustcandsevesecscenedy cusses 22

Pennoyer v. Neff, 95 U. S. 714, 24 L. ed. 565......... 13, 24

Pollard v. Bailey, 20 Wall. (87 U. S.) 520, 22 L. ed.

SN SaaAEGN sear even conehdsvesennuetebaidevexde% 12, 27

Rediker v. Rediker, 35 Cal. 2d 796, 221 P. 2d 1, 20

rh Tr Pn Ae héenoe dees éeeeeyess eeaneseceus 26

Riley v. New York Trust Co., 315 U. S. 343, 86 L. ed.

EE EN SI I b Kec deedecbdpencasvevetetseces 13, 24

Slater v. Mexican National Railroad Company, 194

U. S. 120, 128, 48 L. ed. 900, 903, 24'S. Ct. 581...... 28, 29

State ex rel. Oklahoma Tax Commission v. Rodgers et

al., 238 Mo. App. 1115, 193 S. W. (2d) 919, 165

is a eud4 anton odees Gide veteseenccews 10, 12, 21, 29

State of Colorado v. Harbeck, 232 N. Y. 71, 81, 133

i ee SE coke oxdeedetodeseudentoeeravesses 27, 29

State of Minnesota v. Karp, 84 Ohio App. 51, 60, 84

% & iy Ree rer rrr rete TT: Perr rr ptr er 23

Stewart v. B. & O. R. Co., 168 U. S. 445, 42 L. ed. 537,

SPO UE cv céddb seus thee eedcesene oueesewaveds 27

Tennessee Coal, Iron and Railroad Co. v. George, 233

U. S. 354, 359, 58 L. ed. 997, 999, 34S. Ct. 587...... 27, 28

Western Life Indemnity Co. v. Rupp, 235 U. 8. 261, ,

ie i Se Gk Ol na i cawsvidedarcsnceneces 12,17

Worchester County Trust Co. v. Riley, 302 U. S. 292,

298, 82 L. ed. 268, 274, 58 S. Ct. 185...............- 26

POOR COPY

BLEED THROUGH

Vv

Statutes Cited.

California Political Code:

SIs RCE REDE oe A a Oe Ba Fe 7,11

California Revenue and Taxation Code:

ERA Par A ee 5 isa) PA gee ees 4, 25, 26

a ee eS 5, 26

i Civ act Lveeiee suaes one che es ee ekuee 5, 26

RE ST lt ea aa A al ae )

i eis eet. BG re eid toe ee oF 6, 26

TT Cacti eins cid s obe's a casoeseese ewan 6, 26

Ea RE pipe els ES ON fa glen eer ee PIL 6

eg a aie EN en ee Er 6, 26

I i a Ce et ee a a 6

a a ee 7

sche cede~e oe ee eb as deed dodeéetcsc enue 7

sates eee id dad dooce debe cow eaneeea 7

See ek ON > rc adodesccdcvececececece 29

United States Code:

Title 23, Seetion 1257 (3)........ccccccccccccvece 2

a I te ee 2

United States Constitution:

EE re I Sib Gow eh dda cd ssGe cas diveneawdc 4

Fourteenth Amendment, Section 1................ 4

— SEE WE SRR mri RRS ee cites)

—_— saree am _ B

IN THE

SUPREME COURT OF THE UNITED STATES,

OCTOBER TERM, 1954,

No. 32,

STATE OF CALIFORNIA on Relation of Edmund G. Brown,

Attorney General, and Robert C. Kirkwood,

State Controller,

Plaintiff and Petitioner,

vs.

ST. LOUIS UNION TRUST COMPANY, a Corporation

Organized Under the Laws of the State of Missouri,

Defendant and Respondent.

On Writ of Certiorari to the St. Louis Court of Appeals

of the State of Missouri.

BRIEF FOR THE RESPONDENT.

' ’ OPINIONS BELOW.

The opinion of the St. Louis Court of Appeals of the

State of Missouri appears in the printed record (R. 131-

149) and is reported in 260 S. W. (2d) 821. It has not,

as yet, been reported in the official reports of the Courts

ee ee ‘ mg enc QR

erate oa

of Appeals of the State of Missouri. The denial by the

Supreme Court of Missouri of the application of petitioner

for transfer from the St. Louis Court of Appeals to the

Supreme Court of Missouri appears in the printed record

(R. 157) and is not yet officially reported.

9

The prior opinion of the Supreme Court of Missouri,

transferring the cause from that court to the St. Louis

Court of Appeals, appears in the printed record (R. 120-

126) as does its order of transfer (R. 126) and is reported

in 248 S. W. (2d) 592. Respondent’s motion for rehearing

or in the alternative to transfer to the court en bane ap-

pears in the printed record (R. 127-129). The opinion of

the Supreme Court of Missouri overruling that motion

appears in the printed record (R. 129-130) and is reported

in 248 S. W. (2d) 596.

JURISDICTION. |

Petitioner asserts that jurisdiction of this court arises

out of Title 28, Sections 2101-4, United States Code, rules

38 and 3814, rules of the Supreme Court of the United

States. We find no jurisdictional relevancy in the cited

provisions. Under them this court would have no juris-

diction.

The only provision of the U. S. Code under which this

court could possibly have jurisdiction is 28 U. S. C.

1257 (3).

QUESTIONS INVOLVED.

1.

The Missouri courts found that the cause of action

created by the California statutes is intransitory. Does

such a finding present a federal question?

POOR COPY

Since the decision of the St. Louis Court of Appeals

rests on the independent ground that there was no com-

petent evidence before the Missouri courts from which

could be determined the amount of inheritance taxes

allegedly due California, will this Court examine other

grounds for the decision which might possibly involve

federal questions?

Il.

Can the Petitioner, after having failed to raise any

federal questions in its Application for Transfer from the

St. Louis Court of Appeals to the Supreme Court of Mis-

souri, now raise federal questions before this Court?

IV.

Since the original California judgment was not res judi-

cata or binding against Respondent, would its admission in

evidence and its use as a basis for a judgment against

Respondent in a Missouri Court be a deprivation of prop-

erty without due process of law contrary to the provisions

of the Fourteenth Amendment to the Constitution of the

United States?

. 2

Can California statutes confer or impose upon Missouri

courts a jurisdiction, a precise and detailed procedure, end

a circumscribed method of assessing inheritance taxes, in-

digenous to California courts, and entirely alien to the Mis-

sourt Code of Civil Procedure?

te >

—,

pees ee

STATUTES INVOLVED.

Unitea states Constitution, Article ITV, Section 1:

‘Section 1. Full Faith and Credit shall be given

in each State to the Public Acts, Records, and Judicial

Proceedings of every other State. And the Congress

may by general Laws prescribe the Manner ir which

such Acts, Records and Proceedings shall be proved,

and the Effect thereof."’

United States Constitution, Fourteenth Amendment, See-

tion 1:

**Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State

wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or im-

munities of citizens of the United States; nor shall

any State deprive any person of life, liberty, or prop-

erty, without due process of law; nor deny to any

person within its jurisdiction the equal protection of

the laws.”’

California Revenue and Taxation Code:

**$ 14501. Appointment of appraiser. At or prior to

the time of the appointment of the probate appraiser

or appraisers pursuant to Section 605 of the Probate

Code, the superior court having jurisdiction in probate

of the estate of any decedent, or a judge of that court,

shall designate and appoint an inheritance tax ap-

praiser to ascertain and submit a report to the court

on the following:

‘*(a) The clear market value of the property in-

cluded in each transfer subject to this part from the

decedent to any person sharing in the estate, whether

the property transferred is in the estate or not.

al 7

—

‘‘(b) The amount of tax, if any, which is due and

payable on each transfer.

(ec) Such other facts regarding the tax as will

assist the court in the determination of the tax.

‘©. 14502. Powers of appraiser. Upon his designa-

tion and appointment the inheritance tax appraiser

has:

‘*(a) Jurisdiction to rejnire the attendance before

him of the executor, administrator, any person inter-

ested in the estate, or any other person who he may

have reason to believe possesses knowledge of the

estate, of any property transferred by the decedent by

a transfer subject to this part, or of any facts that

will aid the appraiser or the court in the determina-

tion of the tax.

‘*(b) All the powers of a referee of the superior

court.

**$ 14506. Report. Upon the completion of his ap-

praisement the appraiser shall file a written report

with the superior court setting forth the following:

‘*(a) The clear market value of the property in-

cluded in each transfer subject to this part from the

decedent to any person sharing in the estate, whether

the property transferred is in the estate or not.

‘*(b) The amount of tax which is due and payable

on each transfer.

‘*(¢) Such other facts as may advise the court in

regard to the tax, or which the court may require.

‘In addition to filing the report, the appraiser may

file with the court any deposition, exhibit, other evi-

dence, or other information taken before or submitted

to him.

**$ 14507. Copy to Controller. Upon filing the re-

port the appraiser shall mail a copy to the Controller.

a he Of =

py oa

**$ 14508. Notice of filing. On the day that the re-

port is filed, or on the next succeeding judicial day,

the clerk of the superior court shall give notice of

the filing to all persons interested by causing a notice

to be posted at the courthouse in the county where

the court holds its sessions, and shall mail a copy of

the notice to the Controller and to each person charge-

able with any tax in the report who has appeared in

the probate proceeding.

‘**$ 14509. Order fixing tax where no objections. |;

no objection to the report is filed prior to the expira-

tion of 10 days from and after the posting and mailing

of the notice, the superior court, a judge of the court,

or, if the court is located in a county or city and

county having a population of 900,000 or more, a court

commissioner appointed by the court may, without

further notice, make an order confirming the report

and fixing the tax in accordance therewith,

**$ 14510. Objections. At any time prior to the mak-

ing of the order, any person interested, including the

Controller, may file a written objection to the report.

**$ 14511. Notice of hearing. If an objection is

filed, the clerk of the superior court shall fix a time,

not less than 10 days after the filing, for a hearing

on the objection, and shall give notice of the hearing

by posting a notice of hearing at the courthouse in

the county where the court holds its sessions, and by

forthwith mailing a copy to the objection and of the

notice to the Controller, executor, administrator, and

the inheritance tax appraiser.

‘*§ 14512. Report presumed correct. For the pur-

pose of the hearing the report of the inheritance tax

appraiser is presumed to be correct, and at the hear-

ing it is the duty of the objector to proceed in sup-

port of his objection.

POOR COPY

——— es er, —— of ae ee

sete We ee a Re ICS Re Re Ponce oe ee ee

*§ 14515. Order. Upon the completion of the hear-

ing the court may make such order as to it may seem

appropriate.

**$ 14651. Probate court. The superior court which

has acquired jurisdiction in probate of the estate of

any decedent shall hear and determine in the probate

proceedings all questions relative to any tax imposed

by this part on each transfer subject to this part from

the decedent to any person sharing in the estate,

whether the property transferred is in the estate or

not.

‘*) 14652. Where resident decedent leaves no estate,

etc. The superior court of the county in which a de-

cedent who was a resident of this State resided at the

time of his death has jurisdiction to hear and deter-

mine all questions relative to any tax imposed by this

part on any transfer made by the decedent where the

decedent either (a) leaves no estate or (b) leaves an

estate in which the property transferred is not in-

’*

cluded and the transferee does not share.

: California Political Code:

, “<< 3671e. The courts of this State shall recognize

and enforce liabilities for taxes lawfully imposed by

other States which extend a like comity to this State.

“The Attorney General is hereby empowered to

| bring suits in the courts of other States to collect

taxes legally due this State. The officials of other

States which extend a like comity to this State are

empowered to sue for the collection of such taxes in

the courts of this State. <A certificate by the Seere-

tary of State under the great seal of the State that

such officers have authority to collect the tax shall be

conclusive evidence of such authority.’

a

STATEMENT.

The State of California at the relation of Fred N. Houser,

its then attorney general, filed suit in the Cireuit Court

of the County of St. Louis, State of Missouri, seeking re-

covery of inheritance taxes allegedly assessed on behalf

of the State of California during the course of administra-

tion in that state of the estate of Mary Agnes Rogers, and

allegedly remaining due and unpaid. The defendants

named in the Missouri action were the St. Louis Union

Trust Company, a Missouri corporation, as trustee under

a certain indenture of trust created by the decedent, Mary

Agnes Rogers, other defendant residents of Missouri

named as beneficiaries in said indenture of trust and a cor-

porate beneficiary, Bellefontaine Cemetery Association, a

Missouri corporation (R. 1-24).

Decedent, Mary Agnes Rogers, was originally a resident

of Missouri (R. 133, 134). During her lifetime, on July 8,

1936, she created a revocable trust, under the terms of

which she transferred to St. Louis Union Trust Company,

as trustee, certain intangible personalty. The terms of the

trust reserved the income to herself for life and provided

for distribution to certain named beneficiaries at her death

(R. 81-87). During her later years she lived in California

and died there on June 14, 1945 (R. 133, 134).

After her death her will was filed for probate in the

Superior Court of Los Angeles County, California, and her

estate was administered by the public administrator of that

county (R. 134, 137). Petitioner alleged that during the

course of that administration certain inheritance taxes

were assessed in California, which taxes were determined

by including the value of the assets of the Missouri trust

estate, as well as the value of other property physically

located in California and subject to the jurisdiction of its

POOR COPY

BLEED THROUGH

a

courts (R. 132). Petitioner also alleged that during the

course of administration the public administrator used the

assets physically within California to pay expenses of ad-

ministration, a Federal estate tax, and a portion of the

California inheritance taxes, leaving unpaid California in-

heritance taxes in the amount of $4,549.75 (R. 132).

During the course of probate administration in Cali-

fornia none of the defendants named in the original pleadd-

ings was within California or in any way personally sub-

ject to the jurisdiction of its courts (R. 137). Respondent,

St. Louis Union Trust Company, during such period, was

and still is, a Missouri corporation not qualified to do or

doing business in California, and none of the assets com-

prising the trust estate was physically located within Cali-

fornia (R. 136).

At the trial the only evidence sought to be introduced

by petitioner was evidence allegedly as to the domicile of

decedent, Mary Agnes Rogers, evidence allegedly support-

ing the facet that a proceeding was had in California for

determination of California inheritance taxes, evidence as

to the amount of such taxes, and evidence allegediy sup-

porting the balance of California inheritance taxes remain-

ing unpaid. After the trial the trial court dismissed as to

all of the defendants except respondent, and found in favor

of the petitioner and against respondent for the relief

prayed in the petition (R. 108).

Respondent appealed to the Supreme Court of Missouri,

which court transferred the cause to the St. Louis Court

of Appeals on the ground that Respondent had failed to

properly raise a State constitutional or a Federal consti-

tutional question (R. 120-126). Respondent then filed its

motion for rehearing, or in the alternative, to transfer to

the court en bane (R. 127-129). This motion was denied

by the Supreme Court of Missouri (R. 129-130) and the

ik dee ee oe ea, eed

arene @®

—10—

cause was transferred to the St. Louis Court of Appeals

(R. 126).

The St. Louis Court of Appeals reversed the decision

of the St. Louis County Cireuit Court on two bases: First,

that California had created a cause of action for the assess-

ment and collection of inheritance taxes not cognizable in

Missouri courts and, second, that Petitioner had failed to

introduce sufficient competent evidence to support what-

ever cause of action it may have had (R. 131-149). The

Petitioner then filed in the St. Louis Court of Appeals a

motion for rehearing or, in the alternative, for transfer to

the Supreme Court of Missouri (R. 151-152), which motion

was denied October 16, 1953 (R. 152).

Thereafter Petitioner filed in the Supreme Court of Mis-

souri an Application for Transfer of the cause from the

St. Louis Court of Appeals to the Supreme Court of Mis-

souri, which application failed in any wise to raise or

call to the attention of the Supreme Court of Missouri any

state constitutional or federal constitutional question, but

sought review only on the grounds that a conflict allegedly

existed between the instant decision by the St. Louis Court

of Appeals and an older decision of the St. Louis Court

of Appeals, State ex rel. Oklahoma Tax Commission v.

Rodgers et al., 238 Mo. App. 1115, 193 S. W. (2d) 919, 165

A. L. R. 785 (R. 154-156). The application was denied with-

out opinion by the Supreme Court of Missouri on Decem-

ber 14, 1953 (R. 157). On application of the Petitioner the

St. Louis Court of Appeals stayed its mandate to the trial

court by an order entered January 15, 1954 (R. 159). The

Writ of Certiorari was granted by the Supreme Court of

the United States on or about the 14th day of October, 1954.

Respondent’s attorneys received by mail three copies of

the Brief for Petitioner on November 24, 1954.

_——

es

SUMMARY OF ARGUMENT.

During the period of time involved in the administra-

tion of the Estate of Mary Agnes Rogers in the State of

California, California had in foree a precise and detailed

system for the determination of inheritance taxes involving

special procedures for giving notice, posting notices, ap-

pointment of an appraiser, report of the appraiser, ap-

proval of the report by the Court, order of the Court, ete.,

and providing that all those things take place under the

supervision and control of the Superior Court of Cali-

fornia of the County where decedent resided at time of

death (California Revenue and Taxation Code).

Without amending these inheritance tax statutes, Cali-

fornia passed a general statute purporting to give au-

thority to the Attorney General to sue in other states ‘‘to

collect taxes legally due this state’’ (California Political

Code, (3671e).

California courts, at the time of the various decisions by

the Missouri courts, had made no determination as to the

nature of the cause of action so created. The Missouri

courts in the instant ease determined that California had

created an intransitory cause of action, not cognizable by

Missouri courts. The St. Louis Court of Appeals states

that its decision was made after a careful examination of

the California statutes and the applicable California de-

cisions. That court found that the right created by the

California inheritance tax laws ‘‘is inextricably bound

up with a preseribed statutory remedy available only in

California’? (R. 144), and that consequently the cause of

action was an intransitory one. There is no federal ques-

tion to be found in this independent determination by the

Missouri Courts. Glenn v. Garth, 147 U. S. 360, 37 L. Ed.

203, 13 S. Ct. 350,

a

_ Be

California could have created a transitory cause of ae-

tion which would have been cognizable in the courts of

Missouri, but the Missouri courts deny that California, at

the time this case arose, had created such a cause of ge-

tion (R. 145, 146, 148). See State ex rel. Oklahoma Tax

Commission v. Rodgers, 238 Mo. App. 1115, 193 S. W. 24

919, 165 A. L. R. 785.

In other words, the Missouri courts have said in this

cease that California created a cause of action and confined

the remedy to specially created California machinery; that

in so doing, California did not have the power to invest

the courts of Missouri with the same machinery, so neces.

sary to the prescribed remedy. The Missouri courts also

decided that the statutes of Missouri have not invested

Missouri courts with the power and authority necessary

to the determination of California inheritance tax liability.

For such reasons, the St. Louis Court of Appeals correctly

decided that petitioner had no cause of action cognizable

in Missouri courts. Pollard v. Bailey, 20 Wall. (87 U.S.)

520, 22 L. ed. 376.

The St. Louis Court of Appeals in its opinion fully eon-

sidered and construed the California statutes and, by so

doing, gave full faith and credit to such statutes. There-

fore, even if the conclusions reached by the St. Louis

Court of Appeals were erroneous, such error would not

constitute a denial of full faith and credit, and would not

present a federal question. Western Life Indemnity Co.

v. Rupp, 235 U. S. 261, 59 L. ed. 220, 35 S. Ct. 37.

Further, the Missouri courts reached the decision in this

ease after finding that the Petitioner had failed to present

sufficient competent evidence to support any cause of ae-

tion, whether transitory or not. Under such circum-

stances, this court will not seek out a federal question,

even should there be one, for the mere purpose of obtain-

ing jurisdiction in order to re-examine the action taken by

——

the Missouri courts. This is an adequate non-federal

ground for the decision by the Missouri courts and this

court will not inquire beyond the adequacy of that ground

in order to examine a possible federal question. Klinger

y. Missouri, 13 Wall. (80 U.S.) 257, 20 L. ed. 635. Besides,

a judgment against the respondent in this case would vio-

late the provisions of the Due Process clause of the Four.

teenth Amendment to the Constitution of the United

States, since it would have to be based upon a California

judgment to which respondent was not a party. Pean-

oyer v. Neff, 95 U. S. 714, 24 L. ed. 565. Riley v. New

York Trust Co., 315 U. S. 343, 86 L. ed. 885, 62 S. Ct. 614.

Finally, the petitioner failed to raise any constitutional

questions, state or federal, in its application for transfer

to the Supreme Court of Missouri (R. 154-156). The Mis-

souri Supreme Court would not hear any federal question

petitioner failed to raise, and this court will not pass on

any federal questions not properly raised and preserved

before the Missouri Supreme Court. City of St. Louis v.

Butler Co., 358 Mo. 1221, 219 S. W. 2d 372; Bailey v. An.

derson, 326 U.S. 208, 90 L. ed. 3, 66.8. Ct. 66,

ee ee ret ne 2? |

A. The Construction by Missouri Courts That the Cause

of Action Created by the California Statutes Is In.

transitory in Nature Presents No Federal Question.

The decision of the St. Louis Court of Appeals for the

State of Missouri determining the nature of the cause

of action created by the California statutes applicable

to this case is not a denial of full faith and credit to those

statutes. In construing the California statutes, the St.

Louis Court of Appeals held (R. 145):

‘We find on reading the California statutes that a

remedy is prescribed, and that it must be pursued

in a specifically designated California court; not in

any court of any state, nor even in any Superior Court

in California, but in a single Superior Court, namely,

in ‘the superior court which has acquired jurisdic-

tion in probate of the estate of any decedent,’ See.

14651, Rev. and Tax Code, or if there be no estate, the

superior court of the county in which the decedent

resided at the time of his death, Sec. 14652. By See.

14501, that specified court appoints an inheritance

tax appraiser, who has ‘all the powers of a referee

of the superior court,’ See. 14502. He files his report

in the court, and the Clerk of the Superior Court

gives notice ‘by causing a notice to be posted at the

courthouse in the county where the court holds its

sessions’ ete., Sec. 14508. Ultimately, the court enters

its judgment or order fixing liability for the tax. It is

needless to recite other provisions, showing that the

statute prescribes a remedy in a specified California

court. This calls for application of the rule of the last

cited group of cases.’’

POOR COPY

| also (R. 146):

«| There is nothing in the Inheritance Tax

Statute of California which indicates that the legisla-

ture intended to create a right on which the state

could sue in a foreign state, instead of being con-

fined to a remedy in a specified superior court of

California. The statute under which the Attorney-

General of California asserts power to sue is a gen-

eral statute, part of the Political Code of California,

when this suit was brought, as Section 3671 (e)

thereof. It grants generally power to bring suit ‘to

collect taxes legally due this State,’ without specific

reference to inheritance taxes.”’

and further (R. 148):

‘In summation, we find that the new type of pro-

cedure here ingeniously attempted by the plaintiff

cannot he accepted because of the principle estab-

lished above, that when statutory right and remedy

are intertwined, as here, the prescribed remedy must

be followed, and being limited by the statutory pre-

script’ om to a local court, the remedy cannot be pur-

sued extraterritorially. The claim for inheritance tax

as created in California is not truly transitory (re-

gardless of whether it might conceivably have been

made so) but has been localized by the requirement

of California court procedure and California judg-

ment.’’

What the St. Louis Court of Appeals did was to exam-

ine at length the applicable California statutes and to en-

deavor to find decisions of California courts interpreting

those statutes. Having found no California decisions

which in any way shed any light on the nature of the

California cause of action, the St. Louis Court of Appeals

proceeded to make its own determination as to the nature

of the cause of action created by the California statutes.

SERS IIS NE TE HER NT POL ATT IN

— ee

This it was free to do and its decision in this regard will

not be disturbed by this court. Louisville & Nashville

Railroad Company v. Melton, 218 U. S. 36, 54 L. ed. 921,

30 S. Ct. 676; Allen v. Allegheny Co., 196 U.S. 458, 49 L,

ed. 551, 25 S. Ct. 311; Banholzer v. New York Life Ins. Co,,

178 U.S. 402, 44 L. ed. 1124, 20 8. Ct. 972; Pinney v. Guy,

189 U.S. 335, 47 L. ed. 839, 23 S. Ct. 558.

Petitioner argues under Point I of its argument that

California law provides a transitory cause of action for

the assessment and collection of California inheritance

taxes and argues under Point II that it is the duty of this

court to examine the nature of the California cause of ae-

tion and to correct the St. Louis Court of Appeals if that

court erred. Petitioner’s argument must be posited on

the assumption that the full faith and credit clause of the

federal constitution requires that the courts of Missouri

interpret the California statutes here involved in such

fashion that this court would approve the construction

were it sitting as a part of the state judicial structure of

Missouri. This would mean that this court would raise a

corrective hand in every instance in which a state court

construed the statute of another state in a fashion deemed

to be to the detriment of the party invoking the full faith

and credit clause.

In Glenn v. Garth, 147 U. S. 360, 368, 369, 370, 37 L. ed.

203, 206, 13 S. Ct. 350, this court disposed of similar con-

tentions:

‘‘If we were to assume jurisdiction of this case, it is

evident that the question submitted would be, not

whether the decision of the New York court was

against a right specially set up and claimed under

the Constitution of the United States, or necessarily

arising, but whether in that decision error intervened

in the construction of the statutes of Virginia. If

every time the courts of a state put a construction

COPY

BLEED THROUGH —

t PaaS OLA ELAN ET IE RN NEN EE INI AEE AE FN RIN IE BH TR I Oe RRL TEN

upon the statutes of another state, this court may be

required to determine whether that construction was

or Was not correct, upon the ground that if it were con-

eluded that the construction was incorrect, it would

follow that the state courts had refused to give full

faith and credit to the statutes involved, our jurisdic-

ion would be enlarged in a manner never heretofore

believed to have been contemplated.’’

“This record may be searched in vain for any proof

that, as matter of fact, the publie acts of Virginia had,

by law or usage in Virginia, any other effect thon

was given them in New York; nor can the contention

of counsel, that the Virginia statutes should be con-

strued according to their views, be treated as the

equivalent of the express assertion of a right arising

under the Constitution or laws of the United States.’’

So also where the affected party argued specifically, as

does Petitioner here, that the error of the state court had

heen demonstrated and that this court should correct it,

this court held:

“Tt is earnestly argued that the court erred in its

construction of the Illinois statute. We do not pass

upon this question, deeming it to be outside of the

limits of our jurisdiction; for it is settled that where,

in a state court, the validity of an act of the legisla-

ture of another state is not in question, and the con-

troversy turns merely upon its interpretation or con-

struction, no question arises under the ‘full faith

and credit” clause of the Federal Constitution. 5

Western Life Indemnity Co. v. Rupp, 235 U. S.

261, 275, 59 L. ed. 220, 225, 35 S. Ct. 37.

See in addition such eases as Louisville & Nashville Rail-

road Company v. Melton, 218 U.S. 36, 54 L. ed. 921, 30

—) =

S. Ct. 676; Allen v. Allegheny Co., 196 U. S. 458, 49 L. ed.

551, 25 S. Ct. 311; Banholzer v. New York Life Ins. Co,

178 U.S. 402, 44 L. ed. 1124, 20 S. Ct. 972,; Pinney v. Guy,

189 U. S. 335, 47 L. ed. 839, 23 8S. Ct. 558.

Il.

Inasmuch as the Decision of the St. Louis Court of Ap.

peals Rests on the Ground, Among Others, That There

Was No Competent Evidence Before the Missouri

Courts From Which They Could Have Determined

the Amount of Inheritance Taxes Allegedly Due

California, This Court Will Not Attempt to Examine

Other Grounds Which Might Possibly Involve Federal

Questions.

At the trial of this cause Petitioner made no effort to

have the Missouri court independently determine any of

the facts necessary for the determination of the California

inheritance tax, and the only question of fact actually liti-

gated was that of domicile of the decedent, Mary Agnes

Rogers. To support its allegations as to the assets of the

estate, the beneficiaries thereof and their relationship to

decedent, the interest and the value thereof received by

each beneficiary, the expenditures made on behalf of the

estate by the California Administrator, and such other

facts as were necessary for the determination of the Cali-

fornia inheritance tax, Petitioner, in the words of the St.

Louis Court of Appeals:

e.

. offered in evidence as its chief reliance in

this case the June 24, 1947, judgment of its Superior

Court (by a ‘Court Commissioner’ whose status and

authority are not established in this record, but that

issue is not before us) approving and confirming the

report of its inheritance tax appraiser, finding that

the market value of the property subject to inheritance

DnAMmeTe CHOPPY

—_

Le

tax is $98,152.27 and assessing and fixing the liabili-

ties of named heirs (Exh. A); and the account and

report of its public administrator and petition fer

discharge, nothing for distribution, with order of

Angust 9, 1948, approving said account and granting

said petition (Exh. B). Parenthetically, it might be

noted that although a copy of the Report of the In-

heritance Tax appraiser was attached to the petition

as an exhibit, no authenticated copy of same was ever

offered in evidence. However, some questions were

asked concerning said report, whereby some of the

contents thereof came into evidence.

“Without said Exhibit A and Exhibit B plaintiff

would have been without evidence of the value of

decedent’s estate, especially her California assets and

of the computation and assessment of inheritance tax.

ed) oY

It must be remembered that the court in speaking as

it did above, was answering the following question which

it had put to itself:

“Thus, in effeet, plaintiff contends that it here

pursued, and was entitled to pursue a third procedure,

viz., that it sued in Missonri to have defendant’s

liability for inheritance tax determined without rely-

ing on any prior California adjudication as a judg-

ment, but using prior California court orders as evi-

dence or proof of its case. May this be done?’’ (R.

143.)

Thus, the court found that the Respondent had failed

to offer competent evidence in support of its cause of

action. This finding is an adequate non-federal ground

sufficient to support the decision, and therefore, this court

will not go beyond that finding to seek out a possible

federal question.

ee MD nal

sun

—

In Klinger v. Missouri, 13 Wall. (80 U. 8.) 257, 263, 29

L. ed. 635, 637, the court said:

‘The rules which govern the action of this court jy

eases of this sort are well settled. Where it appears

by the record that the judgment of the state court

might have been based either upon a law which would

raise a question of repugnancy to the Constitution,

laws or treaties of the United States, or upon some

other independent ground, and it appears that the

court did, in fact, base its judgment on such independ-

ent ground, and not on the law raising the Federal

question, this court will not take jurisdiction of the

case, even though it might think the position of the

state court an unsound one. But where it does not ap-

pear on which of the two grounds the judgment was

based, then, if the independent ground on which it

might have been based was a good and valid one, suf-

ficient of itself to sustain the judgment, this court will

not assume jurisdiction of the case; but if such inde-

pendent ground was not a good and valid one, it will

be presumed that the state court based its judgment

on the law raising the Federal question, and this court

will then take jurisdiction. ”

See also Buck v. California, 343 U.S. 99, 96 L. ed. 775,

72 S. Ct. 502; Fox Film Corp. v. Muller, 296 U.S. 207, 80

L. ed. 158, 56 S. Ct. 183; Lynch v. New York ex rel. Pier.

son, 293 U. S. 52, 79 L. ed. 191, 55 S. Ct. 16; Allen v.

Arguimbau, 198 U.S. 149, 49 L. ed. 990, 25 S. Ct. 622.

Petitioner Having Failed to Raise Any Constitutional Ques-

tions in Its Application for Transfer to the Supreme

Court of Missouri, and Having Failed to Assert Any

Specific Federal Rights or Questions in Its Original or

Amended Pleadings in the Trial Court, Cannot Now

Assert Such Rights or Raise Such Questions.

The Petitioner did not assert the federal questions, which

it now raises, in its pleadings before the Trial Court; as a

matter of fact, its pleadings seem to be based upon the

theory of giving full faith and credit to a final judgment

of a California court, not seeking full faith and eredit for

California statutes.

But, moreover, even if petitioner had raised a federal

question in its initial pleadings, it must preserve that ques-

tion throughout. An examination of Petitioner’s Applica-

tion for Transfer to the Supreme Court of Missouri (R.

154-156) discloses that Petitioner failed in any wise to eall

to the attention of the court any ‘‘violation of its rights

under the United States Constitution’’ (Petitioner’s Brief,

pp. 15, 16). Review was sought by Petitioner in the Su-

preme Court of Missouri on the grounds that a conflict

allegedly existed between the instant decision by the St.

Louis Court of Appeals and an older decision of the St.

Louis Court of Appeals, State ex rel. Oklahoma Tax Com-

mission v, Rodgers, 238 Mo. App. 1115, 193 S. W. 2d 919,

165 A. L. R. 785. In this final and necessary step before the

Supreme Court of Missouri the Petitioner failed to raise or

preserve the questions which it now asserts before this

court. Petitioner did not, as required by Missouri pro-

cedure, call specific attention to the federal questions which

it now seeks to assert. Under the decided cases of Missouri,

failure to specify federal questions precludes their consid-

— AMER PEO EEE: DIS HI pT ek MAS 2. aa eon mea

a

wb Shen

eration by the highest State Court. City of St. Louis y.

Butler Co., 358 Mo. 1221, 319 S. W. 2d 372. Under these

cireumstances, this court will not consider any such ques.

tion. Parker v. Illinois, 333 U.S. 571, 92 L. ed. 886, 68 §.

Ct. 708; Bailey v. Anderson, 326 U. S. 203, 90 L. ed. 3,

66 S. Ct. 66; Herndon v. Georgia, 295 U.S. 441, 79 L. ed.

1530, 55 S. Ct. 794; John v. Paullin, 231 U.S. 583, 58 L. ed.

381, 34S. Ct. 178.

IV.

Since the Original California Judgment Was Not Res

Judicata or Binding Against Respondent, Its Admis.

sion in Evidence and Its Use as a Basis for a Judgment

Against Respondent in a Missouri Court Would Be a

Deprivation of Property Without Due Process of Law,

Contrary to the Fourteenth Amendment to the Consti-

tution of the United States.

Respondent, to sueceed here, must be permitted to use

as evidence the judgment of the California court determin-

ing the amount of inheritance taxes assessed against the

Estate of Mary Agnes Rogers (R. 20, 21) or the report of

the California Inheritance Tax Appraiser upon which the

California judgment was purportedly based (R. 22-24),

and an instrument purporting to be the first and final

account and report and petition for discharge filed in the

Superior Court of the State of California in and for the

County of Los Angeles, In the Matter of the Estate of

Mary Agnes Rogers, deceased (R. 39-41). Without the use

of these documents as evidence Petitioner would have no

proof either as to the amount of inheritance taxes which

had purportedly been assessed against the estate or the

amount which remained unpaid and presently due and

owing. Absent such documents, there is no evidence to

support any cause of action by Petitioner against Re-

spondent (R. 144).

POOR COPY

iets

The validity of the action taken by the California court,

in so far as it affeeted persons and property before the

California court, is not open to question, but neither the

Respondent nor any of the defendants in the original pro-

ceeding in the St. Louis County Cireuit Court were subject

to the jurisdiction of the California courts, as Petitioner

has admitted (R. 142). In so far as Respondent is con-

cerned, the determination of facts by the California court

was an ex parte determination and, therefore, not binding

upon Respondent in any way.

Principles which would be dispositive of the ease pres-

ently before this court were expressed in a case involving

a somewhat comparable fact situation. State of Minne-

sota v. Karp, 84 Ohio App. 51, 60, 84 N. KE. 2d 76, 80:

“It seems to us that the amended petition in the

case at bar discloses even more clearly that Minnesota

had nothing within its borders upon which to exercise

its power. The defendant at no time was a resident

of the state. It is not alleged that he was ever in the

state. No property was sequestered. The only sug-

gested basis for the exercise of its sovereignty is that

in 1940 he had received income from business trans-

acted in Minnesota. Where or in what manner he

received it is not shown. In this situation in 1944,

the Commissioner of Taxation, an administrative

officer, without personal service, assessed this tax

which under the law was made prima facie evidence

against the defendant. That, it seems to us, was an

attempt by Minnesota to extend its sovereignty be-

yond its boundaries and control and bind the defendant.

No such power resides in any state and an attempt to

so extend its power is void and violates the Fourteenth

Amendment to the Constitution of the United States.

To give effect to such an attempt would be to deprive

the defendant of property without due process of law.

eee SS” rors lr Sst S””S——”— — —

_—

‘We are of the opinion that the amended petition

fails to show a cause of action enforceable in Ohio.”

Assuming an even stronger case for Petitioner, one jn

which probate proceedings had been instituted in Missouri

in the Estate of Mary Agnes Rogers, as well as California

proceedings, the evidence relied upon by petitioner could

not have been used in an action against the Missouri ad-

ministrator. First National Bank v. Dowdy, 175 Mo. App.

478, 482, 161 S. W. 859, 860:

‘*The rule is that, ‘A judgment against an ancillary

administrator furnishes no cause of action, and is not

even evidence against the domiciliary executor or ad-

ministrator’ (2 Wharton on Conflict of Laws [3 Ed.],

par. 629a, p. 1382; Stacey v. Thrasher, 6 Howard 4;

Braithwaite v. Harvey, 27 L. R. A. 101). An unlimited

number of cases might be cited upon this proposition,

but those above cited will give the inquiring mind an

opportunity to find the majority of the decisions

touching this question. It appears that the authori-

ties are uniform on this proposition.”’

To recognize the evidence sought to be introduced by

Petitioner as determinative in Missouri courts as to Re-

spondent of the amount of the California inheritance taxes

and the amount thereof remaining unpaid, would do violence

to the Fourteenth Amendment to the Constitution of the

United States as a deprivation of property without due

process of law. MeDonald v. Mabee, 243 U.S. 90, 61 L. ed.

608, 37 S. Ct. 343, L. R. A. 1917 F 458; Pennoyer v. Neff,

95 U. S. 714, 24 L. ed. 565; Dull v. Blackman, 169 U. 8.

243, 42 L. ed. 733, 18 S. Ct. 333; Riley v. New York Trust

Co., 315 U.S. 343, 86 L. ed. 885, 62 S. Ct. 614.

POOR COPY

¥.

California Statutes Cannot Confer or Impose Upon Mis-

souri Courts a Jurisdiction and a Mode of Procedure

for the Determination and Assessment of California

Inheritance Taxes Entirely Alien to the Missouri

Code of Civil Procedure.

California has by statute created a system of inheritance

taxation and by such statutes has provided the means for

the assessment and collection of such taxes within Cali-

fornia. That state has, therefore, created a right and

provided a remedy for the enforcement of such right.

This right and its concomitant remedy are novel in the

sense that they are wholly unknown to the common law

and are also novel in the sense that no court of general

jurisdiction in the State of Missouri has the powers given

by California statutes to California courts for the assess-

ment and collection of such tax. This statutorily created

cause of action is not one which the common law consid-

ered transitory, nor is it comparable to any cause of action

generally recognized as transitory.

Under the California Revenue and Taxation Code, See-

tion 14501 provided, during the period in question, that a

specific California Court shall ‘* . . . designate and ap-

point an inheritance tax appraiser to ascertain and submit

a report to the court on the following:

(a) The clear market value of the property included in

each transfer subject to this part from the decedent to any

person sharing in the estate, whether the property trans-

ferred is in the estate or not.

(b) The amount of tax, if any, which is due and payable

on each transfer.

(ec) Such other facts regarding the tax as will assist the

court in the determination of the tax."’

—_—_ a

see te LN RE ee RA EN I eM on a

—_— po

Section 14502 of the Revenue and Taxation Code gives

such appraiser ‘‘. . . all the powers of a referee of the

Superior Court.’’ Section 14506 provides that the ap-

praiser file a written report with the Superior Court,

setting forth the items specified in Section 14501. Section

14508 requires the Clerk of the Superior Court to give

notice ‘*. . . by causing a notice to be posted at the

courthouse in the county where the court holds its sessions,

and shall mail a copy of the notice to the Controller and

to each person chargeable with any tax in the report who

has appeared in the probate proceeding.’’ Sections 14509

and 14511, respectively provide for confirmation of the

report and for hearing of objections if such are filed.

But at the end of the California proceeding what was

the net effect of an appraiser’s report which had been

confirmed by the Superior Court in which it was filed?

It resulted in a judgment which California considered

binding upon the property subject to the processes of the

California court and upon the parties who were personally

subject to the processes of the court. Worchester County

Trust Co. v. Riley, 302 U. S. 292, 298, 82 L. ed. 268, 274,

58 S. Ct. 185; In re Rath’s Estate, 10 Cal. 2«l 399, 75 P. 2d

509, 115 A. L. R. 836; In re Atwell’s Estate, 85 Cal. App.

2d 454, 193 P. 2d 519.

Thus, Petitioner began his Missouri proceeding with a

California judgment binding upon such property as was

before the California court and upon such persons who

were before the California court, but certainly not binding

as to any other property or as to anyone else. California

has recognized that a California court cannot make its

findings of fact binding on persons over whom it has no

jurisdiction. Rediker v. Rediker, 35 Cal. 2d 796, 221 P.

2d 1, 20 A. L. R. 2d 1152.

Petitioner recognizes that it cannot rest its claim upon

the California judgment as one entitled to full faith and

li ew

=

credit under the Federal Constitution (R. 142). Petitioner

has also disclaimed the right to require the courts of

Missouri to follow the procedural requirements of the

California Inheritance Tax laws (R. 142, 143). Henee,

Petitioner secks to assert that the California statutes

created a cause of action transitory in nature which this

court will require the courts of Missouri to recognize and

enforee. But then he is met with the facet that this is a

situation wherein the right is coupled with a provision for

a speedy remedy, which remedy alone must be employed.

Pollard v. Bailey, 20 Wall. (87 U.S.) 520, 526, 22 L. ed.

376, 378; Tennessee Coal, Iron and Railroad Co. v. George,

933 U.S. 354, 359, 58 L. ed. 997, 999, 34S. Ct. 587; Galves-

ton H. & S. A. R. Co. v. Wallace, 225 U.S. 481, 490, 56

L. ed. 516, 522, 32S. Ct. 205; Stewart v. B. & O. R. Co., 168

VS. 445, 42 L. ed. 537, 18 S. Ct. 105; Fourth National

Bank v. Francklyn, 120 U. S. 747, 753, 30 L. ed. 825, 828,

7S. Ct. 757; Davis v. P. E. Harris & Co., 25 Wash. 2d 664,

171 P. 2d 1016; Mosely v. Empire Gas & Fuel Company,

313 Mo. 225, 245, 281 S. W. 762, 767, 768, 45 A. L. R. 1223.

The argument which petitioner is making, that it is

entitled to succeed in having the courts of Missouri create

a new method for the assessment and collection of Cali-

fornia Inheritance Taxes, also appeared in a case decided

in 1920 by the New York Court of Appeals, State of Colo-

rado v. Harbeck, 232 N. Y. 71, 81, 153 N. E. 357, 358:

e

Irregular assessments and unauthorized

methods of collection may not be justified by pointing

out difficulties in the practical application of the statute

as written and appealing to the moral sense to meet

the objection that no legal liability has been estab-

lished against the beneficiaries. No substitute for the

statutory method of collecting taxes, as such method

is expressed or fairly implied, may be invoked either

in the State of Colorado or elsewhere.”’

LEMOS ES A MORK COPS ION,

2

—

An analogous situation occurred in Slater v. Mexican Na-

tional Railroad Company, 194 U.S. 120, 128,48 L.e —-,

903, 24 S. Ct. 581.

This is not a situation wherein the courts of Missouri

are arbitrarily refusing to recognize and enforce a cause

of action arising under the laws of one state while recog-

nizing and enforcing a similar cause of action arising un-

der the laws of another state, which seems to be the basis

for Petitioner’s argument on pages 28 and 29 of its brief,

Cf. Pirst National Bank of Chicago v. United Air Lines,

342 U. S. 396, 398, 96 L. ed. 441, 445, 72 S. Ct. 421.

Nor is this a situation wherein the courts of Missouri

are arbitrarily refusing to recognize and enforce a cause

of action arising under the laws of another state while

recognizing and enforcing a similar cause of action arising

under its own laws, which seems to be the basis for the

argument made by Petitioner on page 21 of its brief. Cf.

Hughes v. Fetter, 341 U.S. 609, 611, 95 L. ed. 1212, 1216,

71S. Ct. 980.

Further, this is not a situation wherein the courts of

Missouri are refusing access on the grounds of public

policy of the State of Missouri, Cf. Hughes v. Fetter,

e~ aus; Broderick v. Rosner, 294 U. S. 629, 643, 79 L. ed.

1100, 1108, 55'S. Ct. 589, 100 A. L. R. 1133; nor yet a sit-

uation wherein a state has created a transitory cause of ae-

tion and attempted to restrict its enforcement to its own

courts. Cf. Tennessee Coal, Iron and Railroad Co. v.

George, 233 U. S. 354, 360, 58 L. ed. 997, 1000, 34 S. Ct.

587; Atchison, Topeka & Santa Fe Railway Company v.

Sawers, 213 U. S. 55, 70, 53 L. ed. 695, 702, 29 S. Ct. 397.

See pages 20 and 21 of Petitioner’s brief.

It has been argued by Petitioner on page 21 of its brief

that this is a situation wherein both California and Mis-

POOR COPY

= ae

souri have created comparable causes of action for both

} have somewhat comparable inheritance tax statutes. This

is true and serves to illustrate the point, for Missouri also

: requires that inheritance taxes be determined in a particu- t

lar way, by particular procedures, under the supervision

of a special Missouri court of limited jurisdiction. Chap-

/ ter 145, R. S. Mo. 1949. See State of Colorado v. Harbeck,

932 N. Y. 71, 81, 133 N. E. 357, 358; Slater v. Mexican Na-

tional Railroad Company, 194 U. S. 120, 128, 48 L. ed. 900,

903, 24 S. Ct. 581.

Petitioner has also argued that Missouri courts have re-

fused petitioner equal protection of its laws and has de-

nied to the citizens of California the privilege it extends

to the citizens of Oklahoma in violation of Section 1 of the

Fourteenth Amendment to the United States Constitution

(Page 29, Petitioner’s Brief). This argument is based

upon Petitioner’s contention that State ex rel. Oklahoma

Tax Commission v. Rodgers et al., 238 Mo. App. 1115, 193

S. W. 2d 919, 165 A. L. R. 785, is a ease involving a cause

of action comparable to the cause of action in the case at

bar. This is a mistaken view of that case. The Oklahoma

Tax Commission case came before the St. Louis Court of

Appeals on an appeal from an order of the trial eourt

sustaining a demurrer to the petition. In view of the de-

murrer, the following pleadings were admitted as facts:

that Mr. and Mrs. Rodgers had heen residents of Okla-

homa during the various years involved, 1933 through

1936, inclusive; that they did file state income tax returns

while they were residents of Oklahoma; that under the

laws of Oklahoma and by virtue of the tax returns so filed,

they became indebted to the state in the amounts desig-

nated by the Tax Commission acting on such returns; that

the defendants had moved out of the state without paying

the taxes for which they were then indebted to the state;

that the state was pursuing them and suing them for that

debt.

PORE MAT QioRibe IANO ES yl RE So a =

—

Soft «Ret, PR At

x

Bice. % heban Re

t

*

— 30 —

As a result, the only issue raised in the St. Louis Court

of Appeals and decided in the Oklahoma Tax Commission

case was whether the public policy of Missouri prohibited

Missouri courts from entertaining causes of action based

on the revenue laws of another state. The issues pres.

ently before the Supreme Court of the United States were

not present in that case.

CONCLUSION.

For the foregoing reasons, it is respectfully submitted

that the Writ of Certiorari to the St. Louis Court of Ap-

peals of the State of Missouri should be dismissed, or in

the alternative, that the decision of the St. Louis Court

of Appeals should be affirmed.

Respectfully submitted,

CHAS. D. LONG and

MILTON YAWITZ,

Counsel for Respondent.

RASSIEUR, LONG & YAWITZ and

ROBERT H. BATTS,

418 Olive Street,

St. Louis 2, Missouri,

Of Counsel.

BLEED THROUGH — oe