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$357. Police and taxing powers of the State sustained; The Slaughter House Cases; Justice Miller's opinion. -There is also a line of cases which will be found in the

this treaty, if the State court had not so expounded its own law, and held that Louisiana was one of the

authorized by the laws of the State. And, by the laws of the State, as they then stood, it vested in him, subject to a tax of ten per cent, pay-States in which the proposed arable to the State. And certainly a rangements of the treaty were to be treaty, subsequently made by the carried into effect."

In this case a citizen of Louisiana died leaving legacies to certain inhabitants of Wurtemburg. The State of Louisiana claimed a ten per cent tax under a statute which provided that such tax should be paid by every person, not domicil

United States with France, could Frederickson vs. State of Louisnot divest rights of property al-iana, U. S. Sup. Ct. 1859, 23 Howready vested in the State, even if ard, 445, CAMPBELL, J. the words of the treaty had imported such an intention. But the words of the article, which we have already set forth, clearly apply to cases happening afterwards-not to cases where the party appeared, after the treaty, to assert his rights, but to cases where the right after-iated in the State and not being a wards accrued. And so it was decided by the Supreme Court of the State, and, we think, rightly. The constitutionality of the law is not disputed, that point having been settled in this court in the case of Mager vs. Grima, 8 How. 490.

"In affirming this judgment, it is proper to say that the obligation of the treaty and its operation in the State, after it was made, depend upon the laws of Louisiana. The treaty does not claim for the United States the right of controlling the succession of real or personal property in a State. And its operation is expressly limited to the States of the Union whose laws permit it, so long and to the same extent as those laws shall remain in force.' And, as there is no act of the legislature of Louisiana repealing this law and accepting the provisions of the treaty, so as to secure to her citizens similar rights in France, this court might feel some difficulty in saying that it was repealed by

citizen of any other State or Territory of the Union, receiving such legacies.

The legatees claimed that under the treaty of 1844 with Wurtemburg they could not be subjected to such a tax.

It was held in State vs. Poydras, 9 La. Ann. 165, that any citizen of Louisiana domiciliated abroad is also subject to this tax.

The Supreme Court in Mager vs. Grima, 8 Howard, 490, sustained the constitutionality of the ten per cent tax law; in this case it held that the treaty did not apply to cases in which a citizen of this country died, leaving his property to legatees within the jurisdiction of the other country and therefore affirmed the judgment in favor of the tax.

The opinion on this point says: "But we concur with the Supreme Court of Louisiana in the opinion that the treaty does not regulate the testamentary dispositions of citizens or subjects of the

notes affecting the Louisiana Succession Tax in which the tax was held constitutional, and not in conflict with treaty

Our treaty with that country provides in case of death of any citizen of France in the United States, without any testamentary executor by him appointed, the consul shall have the right to appear, personally or by delegate, in all proceedings on behalf of the absent or minor heirs. The stipulation is reciprocal, applying to estates of Americans dying in France. The French consul here appointed a delegate to represent the French heirs, and he applied for recognition to the Civil District Court, in which the succession was being administered. That court denied the application and appointed an attorney for the absent heirs. From the judgment dismissing the intervention of the appellant, claiming recognition as delegate, he prosecutes this appeal.

contracting Powers, in reference to | New Orleans, left heirs residing in property within the country of France. their origin or citizenship. The cause of the treaty was, that the citizens and subjects of each of the contracting Powers were or might be subject to onerous taxes upon property possessed by them within the States of the other, by reason of their alienage, and its purpose was to enable such persons to dispose of their property, paying such duties only as the inhabitants of the country where the property lies pay under like conditions. The case of a citizen or subject of the respective countries residing at home, and disposing of property there in favor of a citizen or subject of the other, was not in the contemplation of the contracting Powers, and is not embraced in this article of the treaty. This view of the treaty disposes of this cause upon the grounds on which it was determined in the Supreme Court of Louisiana. It has been suggested in the argument of this case, that the Government of the United States is incompetent to regulate testamentary dispositions or laws of inheritance of foreigners, in reference to property within the States.

"The question is one of great magnitude, but it is not important in the decision of this cause, and we consequently abstain from entering upon its consideration."

Rabasse's Succession, Sup. Ct. La. 1895, 47 La. Ann. 1452, MILLER, J.

"There is a motion to dismiss the appeal on the ground that there is no pecuniary interest involved. There is involved a question of the construction and the execution of our treaty with France in respect to the interest of French heirs in a succession of over one hundred thousand dollars. The motion is denied.

"If the treaty is susceptible of the construction of the appellant the result would be to avoid the appointment of the attorney for the absent heirs, and require the recognition of the appellant as the delegate of the French consul. In our view the stipulation in this treaty puts the delegate in the position of an agent of the French heirs, with the same effect as if he

The facts and the points decided in this case are fully stated in the opinion which in its entirety is as follows: "The deceased, a resident of held their mandate to represent

stipulations with foreign countries, it being shown that citizens of Louisiana were subject to the same tax; in this in

adjudged and decreed that said delegate be recognized and as such delegate, authorized to represent the absent heirs in this succession, and that the succession pay the costs.

them as heirs. That was the man- | reversed, and it is now ordered, ifest purpose, and the language of the treaty plainly expresses that intention. There is no power to appoint an attorney for absent heirs when the heirs are present or represented. Civil Code, art. 1210; Robouam's Heirs VS. Robouam's Executor, 12 La. 73; Addison vs. New Orleans Savings Bank, 15 La. 527.

"It is idle to call in question the competency of the treaty-making power, nor do we think any question can be raised that the subject of this treaty under discussion here is properly within the scope of the power. That subject is the rights of French subjects to be represented here by the consul of their country. On that subject the treaty provision is plain. The treaty by the organic law is the supreme law of the land, binding all courts, State and Federal. Constitution United States, art. 6, par. 2; 1 Kent's Commentaries, 165; Ware vs. Hylton, 3 Dallas, 197; 19 How. 1; 100 U. S. 483, 488; 133 U. S. 264, 266; Treaty with France, 1853, 10 Stats., 999, sec. 12; Treaty with Belgium, 1880, Art. XV.

"The treaty discloses no purpose to require our courts to appoint as the attorney for absent heirs the delegate of the French consul. Its purpose is accomplished by placing the delegate before the court as representing the absent heirs, and precluding the appointment of any attorney to represent them.

"It is therefore ordered, adjudged and decreed that the judgment of the lower court, dismissing the intervention of the delegates of the French consul, be avoided and

"On application for rehearing.

"Our decision in this case affirms that the French heirs of this succession are to be deemed represented by the delegate of the French consul, with the same effect as if the delegate held their power. This view of the treaty to which our decision is confined, displaces the power of the lower court (exerted in ordinary cases) to appoint any attorney to represent the French heirs of this succession.

"The hearing is refused." Rixner's Succession, Sup. Ct. La. 1896, 48 La. Ann. 552, WATKINS, J. This is a long opinion in regard to the rights of Italians under the treaty of 1871 as to the succession taxes in Louisiana.

The syllabus is as follows:

"A citizen and subject of Italy is exempt from the payment of the ten per centum tax levied against foreign heirs, on property situated in this State, under Act 130 of 1894, the title to which is derived by testamentary disposition of his mother's will, she having likewise been a citizen of Italy at the date of her death.

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stance the statutes were originally upheld by the State courts, and the decisions were subsequently affirmed by the Supreme

property within the territory of the latter, by donation, testament or otherwise, from or to aliens and subjects of the former.

"It is both wise and conservative for courts to adhere to what has been repeatedly adjudged; and when the intent and meaning of a law has been settled by the uniform and consistent course of judicial construction, the construction becomes, in so far as contract and treaty rights acquired thereunder are concerned, as much a part of the law as the text itself."

Sala's Succession, Sup. Ct. La. 1898, 50 La. Ann. 1009, NICHOLLS, Ch. J.

movable property. The effect of this limited action is to leave Act No. 130 of 1894 (unless unconstitutional) operative upon immovable property as against foreign heirs and legatees, except to the extent that it is controlled and limited under the third clause of the treaty, under the condition of affairs therein specially anticipated and provided for.

"4. Act No. 130 of 1894 is an act raising revenue and appropriating money, and should (under Art. 35 of the Constitution) have originated in the House of Representatives. Having originated in the Senate is decreed unconstitutional.

"5. There is nothing in the language of Act 130 of 1894 making the payment of a succession or inheritance tax by foreigners a con

The parties protested on the ground that they were exempt under the treaty with Spain of 1795, and the decision of the court is stated in the syllabus (pp. 1009-dition precedent to a right of 1010), as follows:

"1. The parties designated by Act 130 of 1894 as those to be charged under its provisions with a succession or inheritance tax are foreign heirs and legatees.

"2. The words personal goods in the first clause of Art. XI of the treaty, entered into on the 27th of October, 1795, and proclaimed on the 2d of August, 1796, between the United States and Spain, refer to and cover movable property only. Real estate or immovable property is referred to and dealt with in the treaty only in its third clause.

"3. The only action taken by the two governments in respect to real estate, or immovable property, was to deal with and provide for the consequences of the special case, where foreigners in either country should be prohibited from inheriting im

inheritance. The law permits the foreigner to inherit, but, having inherited, charges him with the tax. Succession of Pargoud, 13 An. 367; Succession of Rabasse, 49 An. 1405." 5 The cases relate more to State police powers under the Fourteenth Amendment than as to treaty stipulations, but they are cited as they show the extent to which State laws will be upheld when they relate to the police power.

Spies vs. Illinois, U. S. Sup. Ct. 1887, 123 U. S. 131, WAITE, Ch. J. On application for writ of error to the Supreme Court of the State of Illinois on behalf of certain men condemned to death, known as Chicago Anarchists, the writ was denied upon the ground that no federal question was raised, although the applicants contended that there were violations of treaty rights in

Court of the United States. The Supreme Court has, in regard to treaties, as it has in regard to Federal statutes, ever kept in view the exclusive right of States to regulate their internal affairs and have not allowed either treaty stipulations or Federal statutes to be so construed as to prevent the proper exercise of police powers. The decision rendered by the Supreme Court and the opinion delivered by Mr. Justice Miller, in the Slaughter House Cases1 will also stand, not only the condemnation of the prisoners. The court, however, held that the point had not been raised.

The application was dismissed on various grounds, the record not being in all respects complete. As to the treaty point, the opinion says: "As to the suggestion by counsel for the petitioners, Spies and Fielden-Spies having been born in Germany and Fielden in Great Britain-that they have been denied by the decision of the court below rights guaranteed to them by treaties between the United States and their respective countries, it is sufficient to say that no such questions were made and decided in either of the courts below, and they cannot be raised in this court for the first time. Besides, we have not been referred to any treaty, neither are we aware of any, under which such a question could be raised."

Brooks vs. Missouri, U. S. Sup. Ct. 1888, 124 U. S. 394, WAITE, Ch. J. This was a writ of error in a criminal case which was dismissed on the authority of Spies vs. Illinois. Treaty rights were not involved, but the doctrine in Spies vs. Illinois as to the supremacy of the State in legislation in regard to crimes was affirmed.

In re Kemmler, U. S. Sup. Ct. 1890, 136 U. S. 436, FULLER, Ch. J. In re Shibuya Jugiro, U. S. Sup. Ct. 1891, 140 U. S. 291, HARLAN, J.

McKinney vs. Saviego, U. S. Sup. Ct. 1855, 18 Howard, 235, CAMPBELL, J.

Baldwin vs. Goldfrank, Sup. Ct. TEXAS, 1895, 88 Tex. 249, GAINES, Ch. J. Held that the act of Feb. 8, 1850, of Texas, to investigate land grants in territory ceded to the United States under treaty of Guadalupe-Hildago, 1848, was not a violation of the treaty or an invasion of any right or reservation secured by the Constitution of the State or of the United States.

See also Haver vs. Yaker, U. S. Sup. Ct. 1869, 9 Wallace, 32, DAVIS, J.

§ 357.

1 The Slaughter House Cases, U. S. Sup. Ct. 1872, 16 Wallace, 36, MILLER, J. In speaking of these cases Mr. Carson, in his History of the Supreme Court says (pp. 459-460): "It was held that the law in question was a police regulation for the health and comfort of the people entirely within the power of State Legislatures and unaffected either by the Constitution of the United States previous to the adoption of the Amendments, or since . . . This decision was severely criticised and in its defense Mr. Justice Miller, who always referred to it in terms of pride, said at an address delivered before the alumni of the Law Department of Michigan on the Supreme Court of the United States at the semi-cen

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