Flournoy v. Wiener/Opinion of the Court

by Harlan F. Stone

United States Supreme Court

321 U.S. 253

Flournoy  v.  Wiener

 Argued: Feb. 4 and 7, 1944. --- Decided: Feb 28, 1944

This case comes here on appeal under § 237(a) of the Judicial Code, 28 U.S.C. § 344(a), 28 U.S.C.A. § 344(a), from a judgment of the Supreme Court of Louisiana, appellant assigning as error that that court had held invalid, as in violation of the Fifth Amendment, § 402(b)(2) of the Revenue Act of 1942, 56 Stat. 942, 26 U.S.C.A. Int.Rev.Code, § 811(e)(2). On considering the jurisdictional statement filed by appellant pursuant to Rule 12 of the Rules of this Court, 28 U.S.C.A. following section 354, we postponed decision of the jurisdictional questions to the argument on the merits.

Section 237(a) of the Judicial Code authorizes an appeal to this Court from a judgment of the highest court of the state 'where is drawn in question' the validity of a statute of the United States and the decision is against its validity. The error assigned is therefore one cognizable on appeal. The question for our decision is whether, the state court having rested its decision and judgment upon two independent grounds, each adequate to support the decision but only of which appellant has assigned as error on appeal to this Court, we have jurisdiction to decide either.

Appellees, children and sole legatees of Wiener, who had died a resident of Louisiana, leaving his widow surviving, brought the present proceeding in the District Court for the First Judicial District of Louisiana to establish the amount of the state inheritance tax on the interest acquired by them under the will of decedent. Under state law they cannot be placed in possession of the property inherited by them until they have paid the tax. Act No. 127 of the Extra Session of 1921, as amended by Act No. 44 of 1922; see § 3 of Act No. 119 of 1932. So far as material here, the amount of their liability for the tax depends upon the meaning and application of Act No. 119 of the Louisiana Acts of 1932, Louisiana Code of Practice, Arts. 996.89-996.97, and of § 402(b)(2) of the Revenue Act of 1942. Act No. 119 directs the levy, in addition to existing inheritance taxes, of 'an estate transfer tax upon all estates which are subject to taxation under the Federal Revenue Act of 1926'. The Act provides that whenever the aggregate amount of all inheritance, succession, legacy and estate taxes actually paid to the several states of the United States in respect to any property owned by the decedent shall be less than 80% of the estate tax payable to the United States under the provisions of the Revenue Act of 1926, the difference between that amount and 80% shall be paid to Louisiana. ^[1]

Section 402(b)(2) of the Revenue Act of 1942 amends § 811(e) of the Internal Revenue Code, which was derived from § 302(e) of the Revenue Act of 1926, 26 U.S.C.A. Int.Rev.Acts, page 230, so as to include in the gross estate of decedent for purposes of the federal estate tax, property 'to the extent of the interest therein held as community property by the decedent and surviving spouse under the law of any State, Territory, or possession of the United States, or any foreign country, except such part thereof as may be shown to have been received as compensation for personal services actually rendered by the surviving spouse or derived originally from such compensation or from separate property of the surviving spouse.'

Relying on these statutory provisions appellant, who is charged by state law with the duty of collecting the state inheritance tax, set up by his answer that the State of Louisiana is entitled to recover an inheritance tax equal to 80% of the basic federal estate tax, which by § 402(b)(2) of the Revenue Act of 1942, is to be computed upon the entire community, and prayed judgment against appellees for an inheritance tax so computed.

To this answer appellees interposed pleas that the inheritance tax demanded of them, insofar as it is measured by the interest of the widow in the community, is unconstitutional for want of the uniformity prescribed by § 8 of Article I of the Constitution, and is a denial of due process, in contravention of the Fifth Amendment, in that it taxes property not belonging to decedent and not acquired by appellees under the will. The District Court sustained these pleas on the grounds assigned and gave judgment accordingly.

It will be observed that although the federal estate tax, laid on all the property included in the taxable estate of the decedent, is payable by the estate, ^[2] the effect of appellant's contention in both state courts was that Act No. 119 had, by virtue of § 402(b)(2) of the Revenue Act of 1942, imposed an inheritance tax measured by the entire community property and had authorized collection of that entire tax from the decedent's legatees. The case thus presented not only the question whether a tax could constitutionally be imposed on the entire community property on the death of the husband, but also the further question, not necessarily governed by the federal Act, cf. Riggs v. Del Drago, 317 U.S. 95, 63 S.Ct. 109, 142 A.L.R. 1131, whether the entire tax could be collected from those who inherit from the decedent, although they took no interest in the share of the community property retained by the surviving spouse.

On appeal to the state Supreme Court the Attorney General of the United States was allowed to intervene; on the argument there he urged that the validity of § 402(b)(2) of the Revenue Act of 1942 was not in question, but that the only issue before the court was the validity of Act No. 119 under the Fourteenth Amendment, if construed and applied in the manner contended for by appellant. Appellees accordingly were allowed to amend their plea of unconstitutionality so as to plead in the alternative that if Act No. 119 were construed so as to impose on them an inheritance tax measured by the entire community property it would violate the Fourteenth Amendment.

The Supreme Court of Louisiana affirmed the judgment of the District Court but for different reasons. Succession of Wiener, 203 La. 649, 14 So.2d 475, 478. It held that 'the construction sought to be placed on Act No. 119 of 1932 by the tax collector * * * would render it violative of the due process guaranteed by the 14th amendment to the Constitution of the United States, since such interpretation would result in the imposition of a tax upon those succeeding to the estate of a decedent measured in part by the property comprising the estate of another, to which the estate of the decedent is in no way related.' For this conclusion it relied upon Hoeper v. Tax Commission, 284 U.S. 206, 52 S.Ct. 120, 76 L.Ed. 248, 78 A.L.R. 246, holding that a state graduated income tax measured by the joint income of husband and wife violated the Fourteenth Amendment. It said that the tax was there held invalid because 'any attempt by a state to measure the tax on one person's property or income by reference to the property or income of another is contrary to due process of law as guaranteed by the Fourteenth Amendment.'

The Court thus made an alternative decision that either Act No. 119 did not impose on appellees a tax on property not bequeathed to them or that if it did it violated the Fourteenth Amendment. But it also went on to hold that 'the limitation placed upon the states by the Fourteenth Amendment is likewise placed on the Federal Government by the Fifth Amendment' and that § 402(b) of the Revenue Act of 1942, which appellant, by interpretation of Act No. 119, had contended was the measure of the tax to be imposed on appellees, is likewise a violation of the Fifth Amendment if interpreted so as to tax the entire community property here.

Appellant, in his assignments of error here, made no mention of the ruling of the state Supreme Court that Act No. 119, as construed and sought to be applied by him, violates the Fourteenth Amendment. He assigned as error the Supreme Court's decision that § 402(b)(2) of the Revenue Act of 1942 violates the Fifth Amendment. He also asserted that it had erred 'in denying legal efficacy' to that provision of the Revenue Act which required the valuation of all the community property of decedent and his surviving spouse in the computation of the federal estate tax. But in his 'Statement of the points on which he intends to rely', filed pursuant to paragraph 9 of Rule 13 of this Court, he stated, 'the only issue before the Court, and the point on which he intends to rely is that the Act of Congress held by the Supreme Court of Louisiana to be unconstitutional, to-wit Section 402(b)(2) of the Revenue Act of 1942, approved October 21, 1942, is constitutional and that the Supreme Court of Louisiana erred in holding said statute to be violative of the Fifth Amendment to the Federal Constitution.'

Rule 9 of this Court's Rules requires the appellant in all cases to file assignments of error 'which shall set out separately and particularly each error asserted', and paragraph 9 of Rule 13, requiring the statement of points to be relied upon, provides that 'The court will consider nothing but the points of law so stated'. See also Rule 27, par. 6. It is a familiar rule, consistently followed, that upon appeal from a state court this Court will not pass upon or consider federal questions not assigned as error or designated in the points to be relied upon even though properly presented to and passed upon by the state court. O'Neil v. Vermont, 144 U.S. 323, 331, 12 S.Ct. 693, 696, 36 L.Ed. 450; People of State of New York v. Kleinert, 268 U.S. 646, 651, 45 S.Ct. 618, 619, 69 L.Ed. 1135; Herbring v. Lee, 280 U.S. 111, 117, 50 S.Ct. 49, 51, 74 L.Ed. 217, 64 A.L.R. 1430; Seaboard Airline R. Co. v. Watson, 287 U.S. 86, 91, 53 S.Ct. 32, 34, 77 L.Ed. 180, 86 A.L.R. 174; Southern Pacific Co. v. Gallagher, 306 U.S. 167, 172, 59 S.Ct. 389, 391, 83 L.Ed. 586; Jones v. Opelika, 316 U.S. 584, 592, 62 S.Ct. 1231, 1236, 86 L.Ed. 1691, 141 A.L.R. 514. The rule is the same in the case of applications for certiorari. Rule 38, par. 2; General Talking Pictures Co. v. Western Electric Co., 304 U.S. 175, 179, 546, 58 S.Ct. 849, 851, 82 L.Ed. 1273; National Licorice Co. v. National Labor Relations Board, 309 U.S. 350, 357, 60 S.Ct. 569, 574, 84 L.Ed. 799.

There is a special reason why this practice should be followed here. Doubtless because of appellant's disclaimer, in his points to be relied upon, of a purpose to present any but the Fifth Amendment question, appellees have proceeded on argument and in briefs in this Court on the assumption that only the Fifth Amendment question was before us. Appellant's only mention of the impact of the tax on appellees is to say that 'they have been victimized by the state law not the federal law'. And he has made no effect to sustain the constitutionality of the imposition by the state of the entire burden of the tax on appellees. This is important because on the present record the two questions as to the constitutionality of the state and federal statutes are materially different in point of substance and in kind. The Fifth Amendment is relevant only because the federal tax on community property is made the measure of the tax which Louisiana, not the federal government, imposes upon appellees. If the federal tax on community property infringes the Fifth Amendment then obviously that property is not 'subject to taxation under the Federal Revenue Act' as the Louisiana Act requires, and there is wanting the taxable subject matter upon which the Louisiana statute purports to impose the tax, namely community property which is subject to a federal tax.

It is not the federal but the state statute which imposes the tax on appellees, and the Fourteenth Amendment question in this case is not merely that the state statute, like the federal statute, imposes the tax on a subject matter which is not constitutionally taxable, but that the state statute does something which, as we have seen, the federal statute does not do, namely imposes on appellees an inheritance tax which includes in its measure some of the community property which they do not receive. As already pointed out, this was the question raised by appellees' supplemental plea of unconstitutionality, allowed and decided by the Supreme Court of Louisiana. By it they challenged, as a violation of the Fourteenth Amendment, the imposition on them of an 'inheritance tax' 'based or measured upon the value of the entire community'. Even though it were decided that the federal statute validly imposes the tax on decedent's estate with its burden distributed among all those entitled to share in the estate as the state law may provide, see Riggs v. Del Drago, supra, the question would remain for decision whether the Fourteenth Amendment permits the particular distribution for which appellant contends, requiring appellees to bear all the tax although they share in only part of the estate on which it is laid.

But this question is not before us because appellant, by his statement of points to be relied on, has affirmatively excluded it from consideration on this appeal and has limited himself to the different question arising under the Fifth Amendment. In any case we ought not to consider it here because in reliance upon this declaration neither party has briefed or argued it in this Court. Rule 27, paragraph 6 declares that errors not urged in the briefs will be disregarded. And, independently of 'technical' rules it is not the habit of this Court to decide important constitutional questions which the parties have not presented, briefed or argued.

It is apparent that the decision of the single question arising under the Fifth Amendment, cannot, in the present state of the record, be dispositive of the case. The only tax here sought to be imposed is the state inheritance tax authorized by Act No. 119. The state court having held that that Act is either inapplicable or, if applicable, is an infringement of the Fourteenth Amendment, any ruling we could make as to the validity of § 402(b)(2) could afford no basis for affirming, modifying or setting aside the decision of the state court that by reason of the invalidity or inapplicability of Act No. 119, the tax demanded cannot be imposed.

Any determination which we might make of the Fifth Amendment question would thus leave unaffected the state court's judgment brought here for revire. Our opinion on that subject would be advisory only, since there is nothing before us on which we could render a decision that would have any controlling effect on the rights of the parties. Hence the case stands in the same posture as those in which we have repeatedly held that where the judgment of a state court rests in part on a non-federal ground adequate to support it, this Court will not consider the correctness of the decision which the state court also made of a federal question otherwise reviewable here. Berea College v. Kentucky, 211 U.S. 45, 53, 29 S.Ct. 33, 34, 53 L.Ed. 81; Enterprise Irr. Dist. v. Farmers' Mut. Canal Co., 243 U.S. 157, 163, 164, 37 S.Ct. 318, 320, 321, 61 L.Ed. 644; Lynch v. New York, 293 U.S. 52, 54, 55, 55 S.Ct. 16, 17, 79 L.Ed. 191; Fox Film Corp. v. Muller, 296 U.S. 207, 210, 211, 56 S.Ct. 183, 184, 80 L.Ed. 158. In such a case this Court has said that it will not enter 'a useless and profitless reversal' 'where the same judgment will be rendered by the court below, after they have corrected the error in the Federal question.' Murdock v. City of Memphis, 20 Wall. 590, 634, 635, 22 L.Ed. 429. Compare Pugh v. McCormick, 14 Wall. 361, 374, 20 L.Ed. 789. For like reasons we have refused to answer questions certified to us by a lower federal court where it appears that the answer cannot affect the result, United States v. Buzzo, 18 Wall. 125, 129, 21 L.Ed. 812; United States v. Britton, 108 U.S. 199, 207, 2 S.Ct. 531, 536, 27 L.Ed. 698; Lederer v. McGarvey, 271 U.S. 342, 344, 46 S.Ct. 534, 535, 70 L.Ed. 977. See also the rules stated in City of New Orleans v. Emsheimer, 181 U.S. 153, 21 S.Ct. 584, 45 L.Ed. 794; New York Tel. Co. v. Maltbie, 291 U.S. 645, 54 S.Ct. 443, 78 L.Ed. 1041; Lindheimer v. Illinois Bell Tel. Co., 292 U.S. 151, 176, 54 S.Ct. 658, 668, 78 L.Ed. 1182; and in Hirabayashi v. United States, 320 U.S. 81, 85, 63 S.Ct. 1375, 1378, 87 L.Ed. 1774, and cases cited.

The cause is accordingly dismissed for want of jurisdiction. In the view we take of the case we do not reach the question whether the appeal should not also be dismissed because of doubt whether the decision of the Louisiana Supreme Court as to Act No. 119 rests on a holding that the Act violates the Fourteenth Amendment, or merely that it is inapplicable as a matter of construction of a state statute not reviewable here. With that left in doubt, we could not say that the decision of the state Supreme Court does not rest on a non-federal ground adequate to support it. Compare Lynch v. New York, supra, 293 U.S. 55, 55 S.Ct. 17, 79 L.Ed. 191; Honeyman v. Hanan, 300 U.S. 14, 57 S.Ct. 350, 81 L.Ed. 476; Bakery & Pastry Drivers & Helpers Local v. Wohl, 313 U.S. 572, 61 S.Ct. 960, 85 L.Ed. 1530; People of State of New York ex rel. Rogalski v. Martin, 64 S.Ct. 258, with State Tax Commission v. Van Cott, 306 U.S. 511, 59 S.Ct. 605, 83 L.Ed. 950; State of Minnesota v. National Tea Co., 309 U.S. 551, 60 S.Ct. 676, 84 L.Ed. 920; Standard Oil Co. v. Johnson, 316 U.S. 481, 62 S.Ct. 1168, 86 L.Ed. 1611.

Appellant having assigned as error the decision of the Louisiana Supreme Court holding the Federal Act invalid, the case is properly an appeal, and appellant could have included in his assignments of error any other denial of federal right whether or not capable in itself of being brought here by appeal. Prudential Insurance Co. v. Cheek, 259 U.S. 530, 547, 42 S.Ct. 516, 523, 66 L.Ed. 1044, 27 A.L.R. 27. Or he could have filed a petition for writ of certiorari in addition to his appeal. Columbus & Greenville Ry. Co. v. Miller, 283 U.S. 96, 98, 51 S.Ct. 392, 393, 75 L.Ed. 861. But since he failed to raise or brief in this Court any question as to the validity of the Louisiana statute under the Fourteenth Amendment, we have no jurisdiction of the case either on certiorari on on appeal, and there is no occasion for the application of Judicial Code, § 237(c), 28 U.S.C. § 344(c), 28 U.S.C.A. § 344(c). See Robertson and Kirkham, jurisdiction of the Supreme Court of the United States, page 40, and cases cited.

Dismissed.

Mr. Justice FRANKFURTER, with whom Mr. Justice ROBERTS and Mr. Justice JACKSON concur, dissenting.

Notes

1. The purpose of the Act, declared by § 4, was to secure for the state the benefit of the credit allowed by § 301(b) of the Revenue Act of 1926, 26 U.S.C. § 813(b), 26 U.S.C.A. Int.Rev.Acts, page 226, which allowed the taxpayer a credit against the estate tax imposed by that Act for estate, inheritance or legacy taxes actually paid to a state or territory or the District of Columbia, and provided that the total credit for such taxes should not exceed 80% of the federal estate tax payable.
2. The tax is made a lien on the gross estate, which includes the entire community property here, Internal Revenue Code § 827(a), 26 U.S.C.A. Int.Rev.Code, § 827(a), and is a personal liability of the wife to the extent of the interest acquired by her, Revenue Act of 1942, § 411, 26 U.S.C.A. Int.Rev.Code, §§ 827(b), 900(e).