Plaintiffs Brief — Knowlton v. Moore

ARE a APES

PEELE IE Se

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f, o inte

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In the Supreme Court of the United States.

Ocroser Term, 1899.

Grorcge T. Murpock, as ex- q

ecutor, etc.,

Plaintiff in error, ;

v. No. 458.

Joun G. Warp, Collector,

ete.,

Defendant in error.

Grorce DD). SHERMAN,

Plaintiff in error,

v. No. 459.

Tiwe Unirep Stares,

Defendant in error.

ERRATUM.

Correction of Brief for plaintiffs in error filed under

rule of the Court of February 26, 1900.

By a mistake of the printer in putting together

the matter of this brief, what appears as page 9

should be read as page 8 and what appears as page

8 should be read as page 9.

CHARLES FE. PATTERSON,

of Counsel.

Re TINE IOP NLL ELLE LILLIE A ALES LOE DE LTE SEER

IN THE

SUPREME COURT

OF THE

UNITED STATES.

Ocroser TERM, 1899.

Grorcre T. Murpock, as ex-

ecutor of Jane H. Sherman,

deceased,

Plaintiff in error,

; No. 458.

against

Joun G. Warp,, United

States Collector of Internal

Revenue.

Grorce D. SHERMAN,

Plaintiff in error,

against

Tue Unirep States.

>No. 459.

BRIEF ON BEHALF OF THE PLAINTIFFS IN ERROR,

UNDER ORDER OF THE COURT MADE THE

26TH DAY OF FEBRUARY, 1900.

(The Court has called for farther briefs ‘on the construc-

tion of the act under consideration in respect of the question

whether the tax or daty imposed on each of the legacies is

measured by the volume of the estate or the amount of the

legacy.”)

Upon the argument of these cases in court, the coun-

sel taking part therein, both for plaintiffs in error, and

for the government, were agreed in their constrvction

of the statute in question, that the tax or duty imposed

upon each legacy, or upon the amount received by each

legatee, is measured by the volume of the estate, and

not by the amount of the legacy. If there shal] obtain

a different construction, all the taxes imposed in the

cases now before the court have been improperly assessed,

and all the actions have been well brought, even though

the constitutionality of the law in question shall be

upheld. The result may be that the plaintiffs will not

have the full relief sought, but must be awarded a modi-

fied relief.

It does not seem possible that there can be any other

construction given to the statute, than the one recog-

nized by the Commissioner of Internal Revenue, and

heretofore conceded by all the counsel to be its true con-

struction.

While it is the duty of the Court to construe doubtful

language in a statute, so that the construction will not

work mischief or injustice, it is not the duty of the Court

to revise and rewrite statutes and to substitute consti-

tutionally just and harmonious laws in the place of

those enacted by the Congress, which are plainly uncon-

stitutional, and whose injustice is, beyond question,

the result of the deliberate intent of the Congress. Other-

wise, this Court will usurp the prerogative of the Con-

gress, and while the remedial result will be effected of

removing unconstitutional features from a statute, by

amendments written in by the Court, the functions of

the law-making power will be infringed upon, and in

effect taken away by the law-construing branch of the

government.

In Doe, Lessee of Poor, v. Considine, 6 Wallace, 458,

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PEE a RAS WN A AR Fe Ree HT Ae

in the opinion of the Court, per Mr. Justice Swayne,

there occurs this, which expresses the position of counsel :

“Were we to adopt the construction claimed by the plain-

“tiff’s counsel, instead of adjudicating we should legis-

“late. This we have no power to do. Our function is

“to execute the law, not to make it.” Perhaps the word

“execute,” as here used, may be subject to some criti-

cism or modification, for the Court construes the law,

and executes it only when its process is required for that

purpose.

It is not necessary in this case to carry well recognized

rules to any extreme. The language of the statute in

question seems to be so clear and so unmistakable, that

any injustice that may result from imposing a tax upon

a legacy proportioned the value of the estate of the tes-

tator, instead of proportioned to the amount of the leg-

acy, is so apparent, that there can be no doubt that the

Congress intended just exactly what the President ap-

proved of, and that is the injustice that is now com-

plained of.

In the construction of statutes, undoubtedly the intent

of the law-making power is first to be sought, and the

efforts of the Court should be directed towards giving

effect to that intention. “But a necessary qualification

“has been annexed to that proposition; that the inten-

“tion, to which such effect is to be given, must be such

“an intention and object as the Legislature have used

“fit words to express.”

Potter’s Dwarris on Statutes, 192.

It is not a rule for the construction of statutes, as

appears to have been contended for by the learned Solici-

tor Gencral in his main argument, that because Congress

could never have intended to pass an act void and in-

operative on its face, therefore an unconstitutional or

inoperative act of Congress must be rewritten by the

Court in such language as will make it operative. The

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language of the learned Solicitor General is this (pp.

30, 31, of original brief) :

“The practical operation of the statute—the real na-

“ture of the exaction—is what the court will look to in

“determining whether the tax is direct or not. Is it not

“absurd to jump to the conclusion that Congress would

“do a wholly futile thing by levying an unapportioned

“tax upon personal property’ Certainly Congress

“never intended to pass an act void and inoperative on

“its face. It was the design of Congress to pass a valid

“law, to pay a tax in accordance with the constitution.

“This it could do by taxing the privilege of transmit-

“ting the property; it could not de se by taxing the

“property itself.”

In so far as the intent of the legislative bedy is sub

ject of consideration in the interpretation of its acts,

that intent must be ascertained from the language of

the statute itself. If the language of the statute is of

doubtful import, aid may be given to its construction by

a consideration of the circumstances under which the

enactment was made.

Now in this case, we have as part of the surrounding

circumstances, one fact which is recognized in the title

of the statute under consideration. The title is “An

“Act to provide ways and means to mect war expendi-

“tures, and for other purposes.”

It is a matter of history, and is made matter of record

by the statute itself, that at the time of this enactment

a necessity was imposed upon the government of the

United States to provide an extraordinary revenue to

meet extraordinary expenditures, by reason of pending

warfare. It may not be matter of official record, but it

is a matter of current history, and a matter of which

this Court cannot fail to take cognizance, that at the

time this statute was enacted, there was a great popu-

lar—or if not popular, at least populistie—outery

SNE EE

against taxation being imposed so as to fall heavily upon

persons possessed of smal] means, and exempting large

estates from taxation.

For the present, without laying special stress upon the

language of the statute, it is not too much to ask the

Court to consider, that Congress, in enacting the statute

in question, had intended to accomplish these two ob-

jects: (a) Raising of war revenue; (b) the imposing

of the heavy burden of taxation for the purpose of the

war revenue upon large estates.

Assuming the law in question to be constitutional, it

was admirably adapted to accomplish the intent of the

legislative body. The Court cannot ignore the fact that

under the provisions of this act, even outside of sections

29 and 530, now under consideration, an enormous reve-

nue has been raised for the purposes of the government,

and sutticient to meet all of its extraordinary expendi-

tures for purposes of warfare. The intent of the Con-

gress to tax rich estates to the exemption of small ones,

is clearly and unmistakably expressed in the language

of the act now under consideration. Indeed, the lan-

guage seems so clear, and so explicit, that it is almost

impossible to reach any conclusion other than that it

was the intent of Congress to impose the tax under con-

sideration, with reference to the volume of the estate re-

gardless of the amount of the legacies that might pass.

The construction that has been given to this statute by

the Commissioner of Internal Revenue is in perfect har-

mony with the language of the statute, and has been

recognized by every department of the government, and

was recognized by all the counsel who took part in the

argument of these cases.

Undoubtedly the Court has reached, or may reach, the

same conclusion that counsel have, that the statute in this

respect is unconscionable, unreasonable and unjust, and

if these are sufficient reasons for a decision in favor of

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the plaintiffs in error, the Court must also reach the

conclusion that the statute is unconstitutional.

Although these may not, of themselves, be sufficient

reasons for an adjudication that the law is unconstitu-

tional, they are pertinent matters for the Court to con-

sider in determining whether the law does not violate the

spirit of the constitution, which seeks uniformity and

equality of taxation, and therefore aid in determining a

true constructon of the letter of the constitution.

While the Court ought, in the harmonious workings

of its separate department, in connection with the ex-

ecutive and legislative departments of the government,

to seek to sustain those departments in all their acts and

enactments, and while it should strain in every reason-

able way to uphold an enactment of the Congress as con-

stitutional, yet where the enactment is clearly unconsti-

tutional, this Court is not called upon to violate its con-

science, or to rewrite statutes, so as to make them what

the Congress might have constitutionally provided.

To come now to a critical examination of the language

of the statute in question. Section 29 says: “Any per-

“son or persons having in charge or trust, as administra-

“tors, executors or trustees, any legacies or distributive

“shares arising from personal property, where the

“whole amount of SUCH PERSONAL PROPERTY AS AFORE-

“‘saip, shall exceed the sum of ten thousand dollars in

“actual value, passing, after the passage of this act,

“from any person possessed of such property, either by

“will or by the intestate laws of any State or territory

“* * * to any person or persons, or to any body or

“bodies, political or corporate, in trust or otherwise, shall

“be, and hereby are, made subject to a duty or tax, to

“be paid to the United States, as follows, that is to say:

“Where the whole amount of said personal property

“shall exceed in value ten thousand and shall not exceed

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“in value the sum of twenty-five thousand dollars, the

“tax shall be:

“First. Where the person or persons entitled to any

“beneficial interest in said property shall be the lineal

“issue or lineal ancestor, brother, or sister, to the person

“who died possessed of such property, as aforesaid, at

“the rate of seventy-five cents for each and every hundred

“dollars of the clear value of such interest in such prop-

“erty.”

Then the act goes on to provide in the second, third,

fourth and fifth subdivisions, for a different rate of taxa-

tion, according to the remoteness of the relationship of

the person entitled to receive such beneficial interest, or

in accordance with the lack of kinship of the recipient

of the property to the deceased.

Then a further provision follows, that “where the

“amount or value of said property shall exceed the sum

“of twenty-five thousand dollars, but not exceed the sum

“or value of one hundred thousand dollars, the rates of

“duly or tax above set forth shall be multiplied by one

“and one-half,” and so the rate goes on inereasing,

until “where the amount or value of sap PRovERTY shall

“exceed the sum of one million dollars, such rates of

“duty shall be multiplied by three.”

If this Court is bound by any rules of grammar, in its

construction of statutes, it is not possible so to construe

this statute, as to find otherwise than that the tax here

imposed is proportioned to the value of the property

Which passes from a testator to an administrator, execu-

tor or trustee. No other possible construction can satisfy

rules of grammar. If the courts shall hold that there

was a legislative intent to make the tax to be measured

by the amount of the legacy, instead of by the amount

of the estate of the tesator, such intent is not manifested

in anything which the Congress has said. If this Court

shall say that it would have been constitutional for the

Apateree wi mreeny

AGP ALMERIA RAEIIE A PPR IEMA NA, ERED BARI IRI PELE ID 4 CLA NATE SPE ct MCA 2 a

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tion of this law, upon an equality with all the multi-

millionaires of the country. Persons with less than a mil-

lion dollars are commiserated and pitied in accordance

with the smallness of their means, so that if a party has

not more than ten thousand dollars at the time of his

death, his estate will escape government taxation.

Supposing the contention should prevail that the tax

imposed by this statute is measured by the amount of

the legacy, and not by the amount of the estate of the

decedent, any party owning upwards of ten thousand

dollars at the time of his death may provide a means of

escape for his estate from the payment of any tax what-

ever under this statute, and yet give all his property to

a single legatee or beneficiary. Whatever the amount of

the estate, he may create separate trustees for each

$9,999 thereof, anad give each separate parcel of his

estate to the amount of $9,999 thereof, to a separate

trustee, for the benetit of one particular beneficiary.

lf the tax be imposed upon the particular legacy, or

upon the trustee with reference to the legacy which the

particular trustee has, and is not imposed upon the bulk

of the estate, the estate of a millionaire may be as free

from this government tax as the estate of one not worth

more than ten thousand dollars.

It is not probable that the members of the House of

Representatives, and of the Senate of the United States,

who voted for this particular enactment, fully considered

the effect of their votes, or thoroughly understood the

consequences of their action. If so, it is doubtful

whether they would have said that the Saratoga Hospital

must pay $750 to the government for receiving a legacy

of $5,000 from Mrs. Sherman, merely because she was

worth more than $1,000,000, while if she had not been

worth more than $10,000 the Hospital might have re-

ceived that same legacy without paying a cent of tax.

It is certain, however, that the legislative intent was

DEC eS ——

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Congress to have passed a statute imposing a tax upon

legacies varying in amount according to the amount of

the legacy, and varying in amount according to the de-

gree of kinship, or because of lack of kinship of the

beneficiary to an intestate, it may be reasonably said

that no such question has been before this court.

If the Justices of this Court shall be of opinion that

such a law would be constitutional, it is not within the

province of this Court to enact such a law. To say that

this law means what it has not said, and to say that

there shall be a tax imposed upon legacies according to

the amount of the legacy, and according to the degree of

kinship, or lack of kinship, will be for this Court to

arrogate to itself legislative powers, and to impose a tax

which the Congress in its tax-making power has not

imposed.

It will be a travesty upon justice, if this Court shall

adopt the line of reasoning of the learned Solicitor Gen-

eral, and say that Congress could not be assumed to in-

tend to pass an unconstitutional or inoperative law, and

therefore this Court will modify or remake the law which

was enacted by the Congress, and substitute for what is

unconstitutional a law that shall be constitutional.

In saying this it is not intended to concede, and it is

not conceded that the law would be constitutional, even

if it apportioned the tax according to the amount of the

legacy, and not according to the volume of the estate.

To put a construction upon the statute, that the tax

is to be proportioned to the amount of the legacy, and

not to the volume of the estate, would subvert entirely

the intent of the Congress. Nothing can be clearer from

the language of the statute, than that it was intended to

mike a distinction against large estates, and to impose a

heavy tax upon those who should die rich. The line of

demarcation is drawn at millionaires. A man worth a

million dollars at the time of his death is, in contempla-

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IRAE DEAE A OS IONE LOE LEG ID IALT LEROY CEA EIN ELS ELPA. ORR SEO pe A IBGE LLOEGR

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expressed in the language which it used, and because

Mrs. Sherman was worth more than a million dollars at

the time of her death, it was the intent of the Legislature

that the Saratoga Hospital should pay. $750 to help

carry on the wars of the United States. The injustice

and unreasonableness of the enactment are not suflicien|

grounds for the Court to reverse the action of the Reve-

nue Department in collecting this tax, but the) are sub-

jects worthy of the consideration of this Court, in deter-

mining the question whether the Constitution is so

frained as to permit such injustice to be done.

In the record in the Sherman case, there is incorpor-

ated a transcript of the assessment sheet, by which the

government imposed its tax upon the Sherman estate.

This sheet was prepared in the office of the Commissioner

of Internal Revenue, and undoubtedly was advised by

the law advisers of the government. It seems to be

strictly in accordance with the detailed provisions of the

statute in question. By reason of the assessment made

upon that sheet, a tax has been imposed upon the differ-

ent legatees under Mrs. Sherman’s will, the rate of which

has been determined by the value of the whole of Mrs.

Sherman’s estate, and not by the amount of legacies

given to the different legatees. If a contrary conten-

tion should prevail, and it should be held that the tax

should have been apportioned according to the value of

each legacy, and the degree of kinship of the legatee, suf-

ficient ground is afforded for a reversal of the judgment,

even though this Court should hold the law to be consti-

tutional.

At the same time, for the reasons stated upon the ar-

gument of this case, and in the briefs heretofore filed,

it is contended that the whole law is unconstitutional,

even though this Court should construe the statute dif-

ferently from what it has ever heretofore been construed.

While there may be no cases decided by this Court,

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involving this direct question, and which may aid the

Court in a construction of this statute, the attention of

the Court is called to the case of Matier of Hoffman (143

N. Y. 327), in which almost the identical case was de-

cided under a transfer act of the State of New York.

(Chap. 399, Laws of 1892.) It is probable because of

the decision in this case of Hoffman, that the act of 1892

has been revised.

The language of that statute is not as explicit as in

this case, that the value of the whole estate was the deter-

mining question in affixing a tax.

The Court of Appeals of the State of New York held

that, under that statute, the limitation applied to the

aggregate value of all property transferred, and not to

the separate value of each several transfer.

There is a similar decision under the same statute,

“In the Matter of the Estate of Samuel Hall, deceased”

(88 Hun, 68), and in which the syllabus is:

“The transfer tax, created by chapter 399 of the Laws

“of 1892, is imposed by the terms of the act upon the

“aggregate of the property which descends from the de-

“cedent, and not upon the separate parcels or shares into

“which it may be divided:

“A share less in amount than $500 is taxable under

“the act, if all property of the deceased was of the value

“of $500 or over.”?

These cases may not be regarded as authority by this

Court, but they seem to throw some light upon the cun-

struction contended for. They are in the line of the

claim that is now made, and, it is believed, add some

strength to a position that, even without their aid, would

be regarded as impregnable.

There are authorities in this Court which bear upon

the question of the construction of statutes, and are per-

tinent to the present inquiry.

In Ruggles v. Illinois (108 U. S.. 526), at page 534,

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in the opinion of Mr. Chief Justice Waite, reference is

made to a general maxim of interpretation applied to

the construction of a statute, which is as follows:

“But Vattel’s first general maxim of interpretation

“is that ‘it is not allowable to interpret what has no need

“of interpretation, and he continues: ‘When a deed

“Gs worded in clear and precise terms—when its mean-

‘ing is evident and leads to no absurd conclusion—

‘there can be no reason for refusing to admit the mean-

‘ing which such deed naturally presents. To go else-

‘where in search of conjectures, in order to restrict

‘or extend it, is but to elude it.’ Vattel’s Law of Na-

“tions, 244. Here the words are plain and interpret

“themselves.”

In Aldridge v. Williams (3 How. [U. S.] p. 24), the

language of Mr. Chief Justice Taney is as follows:

“The law, as it passed, is the will of the majority of

“both houses, and the only mode in which that will is

“spoken is in the act itself; and we must gather their

“intention from the language there used, comparing it,

“when any ambiguity exists, with the laws upon the

“same subject, and looking, if necessary, to the public

“history of the times in which it was passed.”

In Lake County v. Rollins (180 U. S. 662), the

Court, by Mr. Justice Lamar, made use of this lan-

guage:

“We are unable to adopt the constructive interpola-

“tions ingeniously offered by counsel for defendant in

“error. Why not assume that the framers of the consti-

“tution, and the people who voted it into existence, meant

“exactly what it says? At the first glance, its reading

“produces no impression of doubt as to the meaning. It

“seems all sufficiently plain; and in such ease there is

“a well settled rule which we must observe. The object

“of construction, applied to a constitution, is to give ef-

“fect to the intent of its framers, and of the people in

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“adopting it. This intent is to be found in the instru-

“ment itself; anad when the text of a constitutional pro-

“vision is not ambiguous, the courts, in giving construc-

“tion thereto, are not at liberty to search for its meaning

“beyond the instrument.

“To get at the thought or meaning expressed in a stat-

“ute, a contract or a constitution, the first resort, in all

“cases, is to the natural signification of the words, in

“the order of grammatical arrangement in which the

“framers of the instrument have placed them. If the

“words convey a definite meaning which involves no ab-

“surdity, nor any contradiction of other parts of the

“instrument, then that meaning, apparent on the face

“of the instrument, must be accepted, and neither the

“courts nor the Legislature have the right to add to it

“or take from it. Newell v. People, 7 N. Y. 9, 97;

“Hills v. Chicago, 60 Mlinois, 86; Denn v. Reid, 10 Pet.

“524; Leonard v. Wiseman, 31 Maryland, 201, 204,

“People v. Potter, 47 N. Y. 375; Cooley, Const. Lim.

“57; Story on Const. Sec. 400; Beardstown v. Virginia,

“76 Illinois, 34. So also, where a law is expressed in

“plain and unambiguous terms, whether those terms are

“general or limited, the Legislature should be intended

“to mean what they have plainly expressed, and

“consequently no room is left for construction. United

“States v. Fisher, 2 Cranch, 358, 399; Doggett v. Flor-

“ida Railroad, 99 U.S. 72.”

In Yerke v. United States (173 U. S. 439, 442), this

Court said, per Mr. Justice McKenna: “The rule is

“elemental, that language which is clear needs no con-

“struction.”

In United States v. Philbrick (120 U. S. 52), in con-

struing a statute, great force was given to the fact that

the executive department, upon whose officers had been

imposed the duty of executing the statute, had placed a

particular construction upon it. In the opinion of the

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Court, delivered by Mr. Justice Harlan, there is this

language (p. 59):

“A contemporaneous construction by the officers upon

“whom was imposed the duty of executing those stat-

“utes is entitled to great weight, and since it is not clear

“that that construction was erroneous, it ought not now

“to be overturned. See Hahn v. United States, 107

“U.S. 405, and Brown v. United States, 113 U.S. 571,

“and authorities cited in each case.”

In United States v. Hill, 120 U. S. 169, there is this

language used by Mr. Justice Blatchford, in giving the

opinion of the Court:

“In Edwards’ Lessee v. Darby, 12 Wheat. 206, 210,

“it was said: ‘In the construction of a doubtful and

“ambiguous law, the contemporaneous construction of

“ ‘those who were called upon to act under the law, and

“ “were appointed to carry its provisions into effect, is

“ ‘entitled to very great respect.’ To the same effect are

“United States v. Dickson,, 15 Pet. 141, 145; United

“States v. Gilmore, 8 Wall. 330; Smythe v. Fiske, 23

“Wall. 374, 382; United States v. Moore, 95 U.S. 760,

“763; United States v. Pugh, 99 U. 8. 265, 269; Hahn

“v, United States, 107 U. 8. 402, 406; and Five per

“cent Cases, 110 U. S. 471, 485. In the case of Brown

“vy. United States, 113 U. S. 568, the same doctrine was

“applied, the cases in this Court on the subject being

“collected, and it being said that a ‘contemporane-

“ous and uniform interpretation,’ by executive

“officers charged with the duty of acting under

“a statute, ‘is entitled to weight’ in its construction, ‘and

“in a ease of doubt ought to turn the scale.’ A still

“more recent case on the subject is United States v. Phil-

“brick, ante, 52, where this language is used: ‘A con-

“ “temporaneous construction by the officers upon whom

“ ‘was imposed the duty of executing those statutes is

“ ‘entitled to great weight; and since it is not clear that

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“ “that construction was erroneous, it ought not now to

“be overturned.’ ”

In connection with the two cases last cited, the Court

should take into consideration that the executive depart-

ments placed a practical construction upon the statute

in question, immediately after it became a law, and

when it may not be surmised or conjectured that there

was any reason why the executive departments, aided by

the law department, should not attempt to construe the

law exactly as it was understood to have been enacted by

the Congress. To undertake to spell out a different con-

struction than was then put upon it by the intelligent

ofticers charged with its execution, in order that by rea-

son of a strained construction, contrary to the meaning

of the language used, and contrary to all grammatical

and rhetorical construction of language, an unintended

statute may be evolved that will be consistent with the

provisions of the constitution, is unreasonable, and ab-

horrent to all the principles which govern this Court in

its administration of justice.

CHARLES E. PATTERSON,

Of Counsel.

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