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Opinion of the Court.

collateral kindred may acquire a decedent's property, which is subject to the dominion of our laws, is, that there shall be paid out of such property a tax of two and a half per cent into the treasury of the State. This, therefore, is not a tax upon the property itself, but is merely the price exacted by the State for the privilege accorded in permitting property so situated to be transferred by will or by descent or distribution."

That the tax is not a tax upon the property itself, but upon its transmission by will or by descent, is also held both in New York and in several other States, Mattor of the Estate of Swift, 137 N. Y. 77, in which it is said, p. 85, that "the effect of this special tax is to take froin the property a portion, or a percentage of it, for the use of the State, and I think it quite immaterial whether the tax can be precisely classified with a taxation of property or not. It is not a tax upon persons.” Matter of Hoffman, 143 N. Y. 327; School feld's Executor v. Lynchburg, 78 Virginia, 366; Strode v. Com monwealth, 52 Penn. St. 181; In re Cullum, 145 N. Y. 593. In this last case, as vell as in Wallace v. A[yers, 38 Fed. Rep. 184, it was held that, although the property of the decedent included United States bonds, the tax might be assessed upon the basis of their value, because the tax was not imposed upon the bonds themselves, but upon the estate of the decedent, or the privilege of acquiring property by inheritance. Eyre v. Jacob, 14 Grattan, 422; Dos Passos on Inheritance Tax Law, chap. 2, sec. 8, and cases cited. Such a tax was also held by this court to be free from any constitutional objection in Hager v. Grima, 8 How. 490, 493, Mr. Chief Justice Taney remarking that “the law in question is nothing more than an exercise of the power which every State and sovereignty possesses, of regulating the manner and terms within which property, real and personal, within its dominion may be transferred by last will and testament, or by inheritance; and of prescribing who shall and who shall not be capable of taking it.

If a State may deny the privilege altogether, it follows that when it grants it, it may annex to the grant any conditions which it supposes to be required by its interests or

Opinion of the Court.

policy.” To the same effect is United States v. Fox, 94 U. S. 315.

We think that it follows from this that the act in question is not open to the objection that it is an attempt to tax the property of the United States, since the tax is imposed upon the legacy before it reaches the hands of the gorernment. The legacy becomes the property of the United States only after it has suffered a diminution to the amount of the tax, and it is only upon this condition that the legislature assents to a bequest of it.

2. Whether the United States are a corporation “exempt by law from taxation," within the meaning of the New York statutes, is the remaining question in the case. The Court of Appeals has beld that this exemption was applicable only to domestic corporations declared by the laws of New York to be exempt from taxation. Thus, in Matter of Estate of Prime, 136 N. Y. 347, it was held that foreign religious and charitable corporations were not exempt from the payment of a legacy tax, Chief Judge Andrews observing (p. 360): “We are of opinion that a statute of a State granting powers and privileges to corporations must, in the absence of plain indications to the contrary, be held to apply only to corporations created by the State and over which it has power of visitation and control.

The legislature in such cases is dealing with its own creations, whose rights and obligations it may limit, define and control.” To the same effect are Catlin v. Trustees of Trinity College, 113 N. Y. 133; White v. Howard, 46 N. Y. 144; Matter of Balleis, 144 N. Y. 132; Minot v. Winthrop, 162 Mass. 113; Dos Passos, chap. 3, sec. 34. If the ruling of the Court of Appeals of New York in this particular case be not absolutely binding upon us, we think that, having regard to the purpose of the law to impose a tax generally upon inheritances, the legislature intended to allow an exemption only in favor of such corporations as it had itself created, and which might reasonably be supposed to be the special objects of its solicitude and bounty.

In addition to this, however, the United States are not one of the class of corporations intended by law to be exempt

Names of Counsel.

from taxation. What the corporations are to which the exemption was intended to apply are indicated by the tax laws of New York, and are confined to those of a religious, educational, charitable or reformatory purpose. We think it was not intended to apply it to a purely political or governmental corporation like the United States. Catlin v. Trustees of Trinity College, 113 N. Y. 133; Matter of Estate of Van Kleeck, 121 N. Y. 701; Dos Passos, cbap. 3, sec. 34. In the Matter of Hamilton, 148 N. Y. 310, it was held that the execution did not apply to a municipality, even though created by the State itself.

Upon the whole, we think the construction put upon the statute by the Court of Appeals was correct, and the judg: ment of the Supreme Court is, therefore,

Affirmed. MR. JUSTICE HARLAN dissented.

UNITED STATES V. FITCH. Error to the Supreme Court of the State of New York. No. 828. Submitted with No. 422.

MR. JUSTICE BROWN. In this case George W. Cullum, a resident of the State of New York, died in the city of New York on February 28, 1892, leaving a last will and testament, which, on the 30th day of April, 1892, was duly admitted to probate. By this will the testator bequeathed to the United States government the sum of $175,100, upon which, by order of the Surrogate's Court, there was assessed an inheritance tax of $8755.

The case does not differ in principle from the one above decided, and the judgment of the court below is, therefore,

Affirmed. MR. JUSTICE HARLAN dissented.

Mr. Solicitor General for plaintiffs in error.

Mr. Benjamin F. Dos Passos and Mr. Edgar J. Levey for defendant in error.





NO. 986. Subultted May 18, 1896. - Decided May 25, 1896.

The several acts described in and made panishable by Rev. Stat. & 5286, are

stated therein separately and disjunctively, connected by the conjunction “or." The indictment in this case, charging that the defendants committed some of those acts, connects them by the conjunction "and.” No question of duplicity was raised by the defendants' counsel. The trial judge instructed the jury that the evidence would not justify a conviction of anything more than providing the means for, or aiding the military expeditions set forth in the indictment, by furnishing transportation for their men, etc. Held, that the verdict could not be disturbed on the ground that more than one offence was included in the same count of the

indictment. Providing, or preparing the means of transportation for such & military

expedition or enterprise as is referred to in Rev. Stat. $ 5286, is one of

the forms of provision or preparation therein denounced. A hostile expedition, dispatched from a port of the United States, is within

the words “ carried on from thence.” A body of men went on board a tug in a port of the United States, loaded

with arms; were taken by it thirty or forty miles and out to sea; met a steamer outside the three mile limit by prior arrangement; boarded her with the arms, opened the boxes and distributed the arms among themselves; drilled to some extent; were apparently oficered; and then, as preconcerted, disembarked to effect an armed landing on the coast of Cuba, when the United States were at peace with Spain. Held, that this constituted a military expedition or enterprise withiu the provisions of

the Revised Statutes. On the question whether the defendants aided the expedition with knowl

edge of the facts, the jury were lostructed that they must acquit unless they were satisfied beyond reasonable doubt that defendants, when they left Philadelphia, had knowledge of the expedition and its objects, and had arranged and provided for its transportation. Held, that the defend

ants had no adequate ground of complaint on this branch of the case. A statement of facts by the court in a recapitulation of the eridence, based

on uncontradictcd testimony, no rule of law being incorrectly stated, and the facts being submitted to the determination of the jury, is not

open to exception. The ruling in Simmons v. United States, 142 U. S. 148, that “the judge pre

siding at a trial, civil or criminal, in any court of the United States, may express bis opinion to the jury upon the questions of fact which he sub

Statement of the Case.

mits to their determination" applied to statements by the court below in

its charge in this case. Assuming that a secret combination between the party and the captain or

oficers of the Horsa had been proven, then, on the question whether such combination was lawful or not, the declarations of those engaged in it

explanatory of acts done in fartherance of its object were competent. Where a plain error has been committed in a matter vital to defendants,

this court is at liberty to correct it, although the question may not be properly raised; and being of opinion that adequate proof of guilty knowledge or participation on the part of the mates is not shown by the record, it reverses the judgment as to them, although no exception was taken.

WIBORG, the captain, and Petersen and Johansen, the mates, of the steamer Horsa, were indicted in the District Court of the United States for the Eastern District of Pennsylvania under section 5286 of the Revised Statutes. The indictment charged that defendants, "mariners, at the district aforesaid and within the jurisdiction of this court, did, within the territory and jurisdiction of the United States, to rit, at the port of Philadelphia, Pennsylvania, within the district aforesaid, begin, set on foot and provide and prepare the means for a certain military expedition and enterprise to be carried on from thence against the territory and dominions of a foreign prince, to trit, against the Island of Cuba, the said Island of Cuba being then and there the territory and do minions of the King of Spain, the said United States being then and there at peace with the King of Spain,. contrary to the form of the act of Congress in such case made and provided and against the peace and dignity of the United States of America.” They were tried before Judge Butler and a jury, and convicted. Motions in arrest of judgment and for a new trial were severally made and overruled, and defendants were sentenced to pay fines and to serve terms in the state penitentiary. This writ of error was thereupon sued out and defendants admitted to bail.

The Horsa was a Danish steamer, sailing under the Danish flag, and defendant Wiborg, its captain, was a subject of the King of Denmark, as were also his co-defendants, as claimed by their counsel.

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