Flournoy v. Wiener/Dissent Frankfurter
Mr. Justice FRANKFURTER, with whom Mr. Justice ROBERTS and Mr. Justice JACKSON concur, dissenting.

If this appeal were dismissed summarily I should remain silent. But opinions on the jurisdiction of this Court must serve as guides for the bar as well as for all other courts. Therefore the reasons for my inability to concur in the Court's views, involving as they do general considerations, call for somewhat detailed expression.

1. The law of the jurisdiction of this Court raises problems of a highly technical nature. But underlying their solution are matters of substance in the practical working of our dual system and in the effective conduct of the business of this Court. While therefore the disposition of jurisdictional questions involves specialized knowledge, we are not dealing with problems the answers to which depend on the use of talismanic words or on the observance of rigid forms. On no one I venture to believe has the conviction stronger hold than on me that it is important to postpone constitutional adjudications and therefore constitutional conflicts until they are judicially unavoidable, or to keep them, when unavoidable, within the strict confines of a specific case. That is why we should be uncompromising in observing the limits of our authority and should avoid laxity in assuming jurisdiction. See 49 Harv.L.Rev. 68, 90-107. But the duties of this Court do not hang on the thread of mere verbalism.

2. We do not review a case from a state court which can be supported on a non-federal ground because federal authority ought not to intrude upon the domain of the States. This far-reaching political consideration was decisive even after the Civil War in settling the rule that not only do we not review a case from a state court that can rest on a purely state ground, but we do not even review state questions in a case that is properly here from a state court on a federal ground. Murdock v. City of Memphis, 20 Wall. 590, 22 L.Ed. 429.

3. The requirement of assignment of errors in order to invoke our reviewing power rests on a wholly different consideration. 'The purpose is to enable the court, as well as opposing counsel, readily to perceive what points are relied on.' Seaboard Air Line R. v. Watson, 287 U.S. 86, 91, 53 S.Ct. 32, 34, 77 L.Ed. 180, 86 A.L.R. 174. Of course, when the error complained of is a rejection of a claim of the invalidity of a state statute under the United States Constitution, the claim must have been effectively pressed before the state court and rejected by it. But the requirement is not for some abracadabra. The nub of the matter is found in People of State of New York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 67, 49 S.Ct. 61, 63, 73 L.Ed. 184, 62 A.L.R. 785:

'There are various ways in which the validity of a state statute may be drawn in question on the ground that it is repugnant to the Constitution of the United States. No particular form of words or phrases is essential, but only that the claim of invalidity and the ground therefor be brought to the attention of the state court with fair precision and in due time. And if the record as a whole shows either expressly or by clear intendment that this was done, the claim is to be regarded as having been adequately presented.'

4. These general considerations bring us to the particular case. Its reviewability here is questioned on numerous grounds. Any one of them would be conclusive. Apparently, however, a cloud of unreviewability is compounded by intermingling doubts on several scores. If the judgment of the Supreme Court of Louisiana can rest on a non-federal ground there is an end of the matter. If that court went off on the constitutionality of a federal statute when that statute was not drawn into question again there is an end to the matter. If the judgment in fact rested on the validity of a state statute urged to be repugnant to the United States Constitution, the case could come here but only if the claim of invalidity was properly presented and duly rejected by the state court. And even then such error could be urged here only if brought before this Court by revealing assignment of errors. If that requirement were not met, again the appeal would call for dismissal.

5. This controversy 'concerns the constitutional validity of an act of Congress'-s 402(b)(2) of the Revenue Act of 1942, 56 Stat. 798, 942-'which is directly drawn in question. The decision depends upon the determination of this issue.' Smith v. Kansas City Title & Trust Co., 255 U.S. 180, 201, 41 S.Ct. 243, 245, 246, 65 L.Ed. 577. This is so, that is, unless we wish to overrule the Kansas City Title case as well as the recent unanimous decision in Standard Oil Co. v. Johnson, 316 U.S. 481, 62 S.Ct. 1168, 86 L.Ed. 1611, and adopt the dissenting views of Mr. Justice Holmes in the Kansas City Title case, supra, 255 U.S. at page 213, 41 S.Ct. at page 250, 65 L.Ed. 577. In any event, however, the decision of the Louisiana Supreme Court cannot be supported on a non-federal ground and does involve the validity of a state statute under the United States Constitution. Finally the assignment of errors, the order allowing appeal and the statement of points on which appellant relied satisfy the reasons for our Rules 9 and 13(9). All three considerations are intertwined in the distinctive circumstances of this case and they establish our jurisdiction, once the cause of this litigation is kept in mind and our jurisdictional requirements are not turned into formalism 'run riot'.

6. What then was in issue in this litigation and what issue was determined in the judgment that was brought here? The tax collector claimed that 'the heirs of Sam Wiener, Jr., owe an inheritance tax on the entire community estate rather than upon the one-half interest in the community inherited by them' for the reason that 'by virtue of Act No. 119 of the Legislature of Louisiana for the year 1932, the State of Louisiana is ultimately entitled to recover an inheritance tax against this estate which is equal to eighty per cent of the basic Federal tax as fixed by the Federal Revenue Act of 1926', and that 'Congress, in the Revenue Act of 1942, (Title IV, Sec. 402(a), 56 Statutes 941, Title 26, Sec. 811, U.S.C.A. Int.Rev.Code) provides that the basic Federal Estate Tax is computed upon the entire community and accordingly, the State of Louisiana is entitled to an amount equal to eighty per cent of the basic Federal Estate Tax so calculated.' (R. 8) The claim of the State for an inheritance tax in a sum equal to 80% of the tax due to the Federal Government as computed in part under § 402(b)(2) was thus based on the interdependence between the Louisiana Act No. 119 and § 402(b)(2) of the Revenue Act of 1942. The latter was incorporated by reference into the former. The two became inseparable for purposes of construction-in a case like the present a decision involving Act No. 119 inescapably depended upon the determination of the validity of § 402(b)(2).  Such was the issue tendered by the State, and issue was joined by the appellees' plea of unconstitutionality: 'notwithstanding anything to the contrary that may be contained in the Federal Revenue Act of 1942, approved on October 21, 1942, there may not be included in the estate of the decedent, subject to the Federal Estate Tax (and consequently subject to the provisions of the State Inheritance Tax under Act 119 of 1932) any property except that which was owned by the decedent at the instant of his death, and by his death transmitted to his heirs.' (R. 9) In this plea the constitutional invalidity of the federal act was challenged as follows: 'Such statutory provision is in contravention of and violative of the Fifth Amendment to the Constitution of the United States, in that its application would deprive these appearers of their property without due process of law by its imposition of taxes upon them, based both upon an arbitrary inclusion in the estate of the decedent of property which did not belong to him and upon the application thereto of graduated rates based upon values arrived at by reference to such other property.' (R. 10)

7. Putting to one side the claim of unconstitutionality of § 402(b)(2) for want of uniformity, this is the issue which persists throughout the litigation-the issue arising from the claim of constitutional invalidity under the Fifth Amendment of the method of computing the federal estate tax according to the Amendment of 1942 inasmuch as the state inheritance tax is concededly ascertained through the ascertainment of the federal estate tax. This was the issue raised by the pleadings in the First Judicial District Court of Louisiana; this was the issue tendered by the agreed statement of facts before that court (R. 11, particularly par. 4); this was the issue which that court decided against the State because it found a statute of Congress 'violative of the Fifth Amendment to the Constitution of the United States in that its application here would deprive the heirs of the decedent of their property without due process of law' (R. 13); this was the issue formulated by both parties in their appeal to the Supreme Court of Louisiana (R. 14, 16); on the basis of this issue that court invited the Attorney General of the United States to appear as amicus curiae. After the Attorney General, so appearing, suggested for the first time that 'the tax liability here in issue is only that imposed by the state statute', appellees 'Without in any manner conceding the correctness of that position, but on the contrary expressly reaffirming that this cause involves and depends upon the constitutionality of the Federal Statute,' amended their plea of unconstitutionality, with the State's consent, by adding also an attack upon the validity of the state statutes 'either alone or in conjunction with the Federal Statute' (R. 18).

By this process the case reached the Supreme Court of Louisiana. No one can read that court's opinion and be left in any doubt that Louisiana Act No. 119 of 1932 and § 402(b)(2) of the Revenue Act of 1942 were treated inseparably and the validity of the former made to depend on the fate of the latter. Two passages give the pith of the opinion:

'Now, because of the Congressional adoption of Section 402(b)(2) of the Revenue Act, amending Section 811(e) of the Internal Revenue Code of 1939, 26 U.S.C.A. Int.Rev.Code, § 811(e), the tax collector of Caddo parish is contending inheritance and estate taxes in this state, under Act No. 119 of 1932, must be computed on the basis established in that section. * * *

'We are asked to place an interpretation on Act No. 119 of 1932 and Section 402(b)(2) of the Revenue Act of 1942 that would result in the inclusion in the estate of the managing partner of an interest in the community partnership to which he never had any claim and which was, in fact, during his lifetime and is now, owned by his wife.' 203 La. 649, 656, 669, 670, 14 So.2d 475, 477.

On this showing the lower court concluded that § 402(b)(2) offends the Due Process Clause of the Fifth Amendment, and therefore the reliance of the State upon § 402(b)(2) as read into Act No. 119 made the latter Act offensive to the Due Process Clause of the Fourteenth Amendment.

8. The invalidity, because wanting in due process, of § 402(b)(2) infused into Act No. 119, is the issue that runs like a silver thread unbroken and unalloyed through this litigation as it took its course from the First Judicial District Court of Louisiana to the State Supreme Court and from there to this Court. This makes it abundantly clear why the errors were assigned as they were-claims of error in holding that § 402(b)(2) is unconstitutional and in denying 'legal efficacy to the provisions of Section 402(b)(2) of the Federal Revenue Act of 1942 as requiring the valuation of all of the community property standing in the name of the decedent, Sam Wiener, Jr. in the computation of the Federal basic estate tax; and, consequently, in the computation of the inheritance tax due to the State of Louisiana which, under the statute of the state, is required to be eighty percent of the amount of the Federal basic estate tax.' (R. 32, Assignment of Errors, 2.) Because such was the issue and because the judgment of the Supreme Court of Louisiana determined that issue, the order allowing appeal recites that 'there was drawn in question the validity of § 402(b)(2) of the Federal Revenue Act of 1942', (R. 33). Such having been the issue and such its determination, appellant naturally set it forth in his statement of the points on which he intended to rely. (R. 35.)

9. If a federal claim was drawn in question in Smith v. Kansas City Title & Trust Co., supra, and Standard Oil Co. v. Johnson, supra, it was not less drawn in question in this case. If the earlier two decisions are to continue to stand, I am unable to make a differentiation between them and the record before us.  Much is to be said for the reasoning of Mr. Justice Holmes in the Kansas City Title case in urging that the incorporation of a federal act into a state law nevertheless makes the suit, for purposes of our jurisdiction, one arising under the state and not under the federal law. But his view was rejected. In the recent Standard Oil case we had an opportunity to adopt his view and reject that of the Court in the Kansas City Title case. Instead, we unanimously applied the reasoning of the Kansas City Title case that where a decision under state law necessarily involves the construction or validity of federal law the determination of such federal law in the application of state law gives rise to a federal question for review here.

10. In any event the decision below did not go off on a non-federal ground. It cannot be said of this case as was true of a case like For Film Corp. v. Muller, 296 U.S. 207, 211, 56 S.Ct. 183, 184, 80 L.Ed. 158, that the case 'in effect, was disposed of before the federal question said to be involved was reached. Chouteau v. Gibson, 111 U.S. 200, 4 S.Ct. 340, 28 L.Ed. 400; Chapman v. Goodnow's Adm'r, 123 U.S. 540, 548, 8 S.Ct. 211 (215), 31 L.Ed. 235. A decision of that question then became unnecessary; and whether it was decided or not, our want of jurisdiction is clear.' We have seen that the issue that was framed after the tax collector's return to the rule was exclusively a question of constitutionality under the United States Constitution, and the judgment of the two State Courts was a determination of that issue. There never was any suggestion that the controversy involved merely a construction of the state law except a construction that necessarily raised a federal constitutional question. It was deemed to be a question under the Fifth Amendment of the Constitution until the Attorney General of the United States suggested that the Fourteenth Amendment was at stake. But even on that assumption, the case was decided on a federal and not on a non-federal ground, namely, the invalidity of the State's claim because of want of due process under the Fourteenth Amendment. Since, however, the claim of invalidity was sustained we can take the case only on certiorari. § 237(b) of the Judicial Code, 28 U.S.C.A. § 344(b).

11. The question then is whether the federal ground was adequately assigned to satisfy our Rules 9 and 13(9).  This brings us again to the rationale of these rules. 'The purpose is to enable the court, as well as opposing counsel, readily to perceive what points are relied on.' Seaboard Air Line R. Co. v. Watson, 287 U.S. 86, 91, 53 S.Ct. 32, 34, 77 L.Ed. 180, 86 A.L.R. 174. Is there any doubt that everybody knew what was the issue on which the Supreme Court of Louisiana passed and what was the issue on which the State of Louisiana and the Government desire us to reverse that decision? Seaboard Air Line R. Co. v. Watson, supra, illustrates the true functions of assignment of errors and affords an example of the kind of situations in which the rule comes into operation. It is not fair to the administration of justice-to the work of this Court and counsel taking part in its business-that appeal papers here should not enable us to know clearly and quickly what it is that is complained of and that we are asked to undo: 'The substitution of vague and general statement for the prescribed particularity sets the rule at naught. * * * And, as the rule makes for convenience and certainty in the consideration of cases, the court may, and generally it will, disregard a specification that is so uncertain or otherwise deficient as not substantially to comply with the rule, even if the opposing party raises no question and treats it as adequate. The quoted assignment amounts merely to a complaint that the Supreme Court erred in not reversing the judgment of the trial court because 'in the trial of this case' the 'scope and effect' of the section deprived appellant of its property in violation of both the due process and equal protection clauses. An allegation of error could scarcely be more indefinite. It does not identify any ruling at the trial or specify any basis for the assertion of deprivation of constitutional right. It presents no question for our consideration.' Seaboard Air Line R. Co. v. Watson, supra, 287 U.S. at page 91, 53 S.Ct. at page 34, 77 L.Ed. 180, 86 A.L.R. 174. In this case unlike the Watson case there was not a 'vague and general statement', an 'indefinite' allegation of error. From beginning to end all concerned knew the precise issue that this litigation raises-whether § 402(b)(2) meets the guaranty of due process, in view of the dependence of the state act upon that federal provision. Surely we would have to take this case if Louisiana had specifically assigned as error the view that the Supreme Court of Louisiana took of the Fourteenth Amendment in relation to taxing community property. But since, as the Louisiana Supreme Court said, the issue under the Fourteenth Amendment is precisely the same in this situation as that under the Fifth Amendment, to throw out the case because 'Fourteenth Amendment' was not written is to make our jurisdiction the slave of words.

12. If the decision below can really be said to rest on a non-federal ground, no assignment of errors could cure the defect. But it does not rest on a non-federal ground. It rests on a federal ground-the federal ground that is written on almost every page of the record.

13. Nor should we avoid jurisdiction by creating an issue which 'the parties have not presented, briefed or argued' for the very good reason that it is not in the case. In brief, it is suggested that even assuming the tax on the whole community is valid, the question remains whether the appellees as legatees of half the community can be made to bear the whole tax. That issue is excluded from the case. The amended plea of unconstitutionality did not raise a new issue but merely gave a new label-the Fourteenth Amendment-to the issue they tendered under the Fifth Amendment, dependence on which they reaffirmed. For the appellees, in the petition to prove the will, have assumed the full liability for whatever taxes are constitutionally due from the estate. We ought not to create a constitutional grievance which the parties themselves have never entertained in order to avoid adjudication of the only question which has been in the case from the beginning. 

Notes

Rule 13(9): 'When the record is filed, or within fifteen days thereafter, the appellant shall file with the clerk a definite statement of the points on which he intends to rely and a designation of the parts of the record which he thinks necessary for the consideration thereof or a designation of those parts considered unnecessary, whichever is more convenient, with proof of service of the same on the adverse party. * * * The statement of points intended to be relied upon and the designations of the parts of the record to be printed shall be printed by the clerk with the record. * * * The court will consider nothing but the points of law so stated. * * *'