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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

authorized by the laws of the State. this treaty, if the State court had And, by the laws of the State, as not so expounded its own law, and they then stood, it vested in him, held that Louisiana was one of the 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.”' 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 im In this case a citizen of Louisiana ported such an intention. But the died leaving legacies to certain inwords of the article, which we have habitants of Wurtemburg. The already set forth, clearly apply to State of Louisiana claimed a ten cases happening afterwards—not to per cent tax under a statute which cases where the party appeared, provided that such tax should be after the treaty, to assert bis rights, paid by every person, not domicilbut to cases where the right after- iated in the State and not being a wards accrued. And so it was de- citizen of any other State or Terricided by the Supreme Court of tory of the Union, receiving such the State, and, we think, rightly. legacies. The constitutionality of the law is The legatees claimed that under not disputed, that point having the treaty of 1844 with Wurtembeen settled in this court in the burg they could not be subjected case of Mager vs. Grima, 8 How. to such a tax. 490.

It was held in State vs. Poydras, “ In affirming this judgment, it is 9 La. Ann. 165, that any citizen of proper to say that the obligation of Louisiana domiciliated abroad is the treaty and its operation in the also subject to this tax. State, after it was made, depend The Supreme Court in Mager vs. upon the laws of Louisiana. The Grima, 8 Howard, 490, sustained treaty does not claim for the United the constitutionality of the ten per States the right of controlling the cent tax law; in this case it held succession of real or personal prop- that the treaty did not apply to erty in a State. And its operation cases in which a citizen of this is expressly limited to the States country died, leaving his property of the Union whose laws permit it, to legatees within the jurisdiction so long and to the same extent as of the other country and therefore those laws shall remain in force.' affirmed the judgment in favor of And, as there is no act of the legis- the tax. lature of Louisiana repealing this The opinion on this point says: law and accepting the provisions “But we concur with the Suof the treaty, so as to secure to her preme Court of Louisiana in the citizens similar rights in France, opinion that the treaty does not this court might feel some difficulty regulate the testamentary dispoin saying that it was repealed by I sitions 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

contracting Powers, in reference to New Orleans, left heirs residing in property within the country of France. Our treaty with that their origin or citizenship. The country provides in case of death cause of the treaty was, that the of any citizen of France in the citizens and subjects of each of the United States, without any testacontracting Powers were or might mentary executor by him apbe subject to onerous taxes upon pointed, the consul shall have the property possessed by them within right to appear, personally or by the States of the other, by reason delegate, in all proceedings on beof their alienage, and its purpose half of the absent or minor heirs. was to enable such persons to dis- The stipulation is reciprocal, appose of their property, paying such plying to estates of Americans duties only as the inhabitants of dying in France. The French conthe country where the property sul here appointed a delegate to lies pay under like conditions. represent the French heirs, and he The case of a citizen or subject of applied for recognition to the Civil the respective countries residing District Court, in which the sucat home, and disposing of property cession was being administered. there in favor of a citizen or sub- That court denied the application ject of the other, was not in the and appointed an attorney for the contemplation of the contracting absent heirs. From the judgment Powers, and is not embraced in dismissing the intervention of the this article of the treaty. This appellant, claiming recognition as view of the treaty disposes of this delegate, he prosecutes this appeal. cause upon the grounds on which “ There is a motion to dismiss it was determined in the Supreme the appeal on the ground that there Court of Louisiana. It has been is no pecuniary interest involved. suggested in the argument of this There is involved a question of the case, that the Government of the construction and the execution of United States is incompetent to our treaty with France in respect regulate testamentary dispositions to the interest of French heirs in a or laws of inheritance of foreigners, succession of over one hundred in reference to property within the thousand dollars. The motion is States.

denied. " The question is one of great “If the treaty is susceptible of magnitude, but it is not important the construction of the appellant in the decision of this cause, and the result would be to avoid the we consequently abstain from en- appointment of the attorney for tering upon its consideration." the absent heirs, and require the

Rabasse's Succession, Sup. Ct. La. recognition of the appellant as the 1895, 47 La. Ann. 1452, MILLER, J. delegate of the French consul. In

The facts and the points decided our view the stipulation in this in this case are fully stated in the treaty puts the delegate in the poopinion which in its entirety is as sition of an agent of the French follows:

heirs, with the same effect as if he "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

them as heirs. That was the man- / reversed, and it is now ordered,
ifest purpose, and the language of adjudged and decreed that said
the treaty plainly expresses that delegate be recognized and as such
intention. There is no power to delegate, authorized to represent
appoint an attorney for absent the absent heirs in this succession,
heirs when the heirs are present or and that the succession pay the
represented. Civil Code, art. 1210; costs.
Robouam's Heirs vs. Robouam's "" On application for rehearing.
Executor, 12 La. 73; Addison vs. “Our decision in this case affirms
New Orleans Savings Bunk, 15 La. that the French heirs of this suc-
527.

cession are to be deemed repre-
“It is idle to call in question the sented by the delegate of the
competency of the treaty-making French consul, with the same effect
power, nor do we think any ques- as if the delegate held their power.
tion can be raised that the subject This view of the treaty to which
of this treaty under discussion here our decision is confined, displaces
is properly within the scope of the the power of the lower court (ex-
power. That subject is the rights erted in ordinary cases) to appoint
of French subjects to be represented any attorney to represent the
here by the consul of their coun- French heirs of this succession.
try. On that subject the treaty “The hearing is refused."
provision is plain. The treaty by Rixner's Succession, Sup. Ct. La.
the organic law is the supreme law 1896, 48 La. Ann. 552, WATKINS, J.
of the land, binding all courts, This is a long opinion in regard
State and Federal. Constitution to the rights of Italians under the
United States, art. 6, par. 2; 1 treaty of 1871 as to the succession
Kent's Commentaries, 165; Ware taxes in Louisiana.
vs. Hylton, 3 Dallas, 197; 19 How. The syllabus is as follows:
1; 100 U. S. 483, 488; 133 U. S. 264, “A citizen and subject of Italy
266; Treaty with France, 1853, 10 is exempt from the payment of the
Stats., 999, sec. 12; Treaty with ten per centum tax levied against
Belgium, 1880, Art. XV.

foreign heirs, on property situated “The treaty discloses no purpose in this State, under Act 130 of 1894, to require our courts to appoint as the title to which is derived by testhe attorney for absent heirs the tamentary disposition of his mothdelegate of the French consul. Its er's will, she having likewise been purpose is accomplished by placing a citizen of Italy at the date of her the delegate before the court as death. representing the absent heirs, and 6. The most favored nation precluding the appointment of any clause of the treaty between Italy attorney to represent them.

and the United States entitles citi“ It is therefore ordered, ad- zens and subjects of the former to judged and decreed that the judg- the same tax exemptions as the ment of the lower court, dismissing citizens and subjects of the latter the intervention of the delegates of are; and the same right to acquire the French consul, be avoided and and dispose of personal and real

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

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property within the territory of the movable property. The effect of latter, by donation, testament or this limited action is to leave Act otherwise, from or to aliens and No. 130 of 1894 (unless unconstitusubjects of the former.

tional) operative upon immovable “It is both wise and conservative property as against foreign heirs for courts to adhere to what has and legatees, except to the extent been repeatedly adjudged; and that it is controlled and limited when the intent and meaning of a under the third clause of the treaty, law has been settled by the uniform under the condition of affairs and consistent course of judicial therein specially anticipated and construction, the construction be- provided for. comes, in so far as contract and 16 4. Act No. 130 of 1894 is an act treaty rights acquired thereunder raising revenue and appropriating are concerned, as much a part of money, and should (under Art. 35 of the law as the text itself."

the Constitution) have originated Sala’s Succession, Sup. Ct. La. in the House of Representatives. 1898, 50 La. Ann. 1009, NICHOLLS, Having originated in the Senate is C. J.

decreed unconstitutional. "The parties protested on the 5. There is nothing in the langround that they were exempt un- guage of Act 130 of 1894 making der the treaty with Spain of 1795, the payment of a succession or inand the decision of the court is heritance tax by foreigners a constated in the syllabus (pp. 1009– dition precedent to a right of 1010), as follows:

inheritance. The law permits the “1. The parties designated by Act foreigner to inherit, but, having in130 of 1894 as those to be charged herited, charges him with the tax. under its provisions with a succes- Succession of Pargoud, 13 An. 367; sion or inheritance tax are foreign Succession of Rabasse, 49 An. 1405." heirs and legatees.

5 The cases relate more to State "2. The words personal goods in police powers under the Fourteenth the first clause of Art. XI of the Amendment than as to treaty stiptreaty, entered into on the 27th of ulations, but they are cited as they October, 1795, and proclaimed on show the extent to which State the 2d of August, 1796, between the laws will be upheld when they reUnited States and Spain, refer to late to the police power. and cover movable property only. Spies vs. Illinois, U. S. Sup. Ct. Real estate or immovable property 1887, 123 U. S. 131, WAITE, Ch. J. is referred to and dealt with in the On application for writ of error treaty only in its third clause. to the Supreme Court of the State

“3. The only action taken by the of Illinois on behalf of certain men two governments in respect to real condemned to death, known as estate, or immovable property, was Chicago Anarchists, the writ was to deal with and provide for the con- denied upon the ground that no fedsequences of the special case, where eral question was raised, although foreigners in either country should the applicants contended that there be prohibited from inheriting im-) 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 statútes, 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 Cases! will also stand, not only the condemnation of the prisoners. 6McKinney vs. Saviego, U. S. The court, however, held that the Sup. Ct. 1855, 18 Howard, 235, point had not been raised.

CAMPBELL, J. The application was dismissed Baldwin vs. Goldfrank, Sup. Ct. on various grounds, the record not Texas, 1895, 88 Tex. 249, being in all respects complete. As GAINES, Ch. J. Held that the act to the treaty point, the opinion of Feb. 8, 1850, of Texas, to investisays: “As to the suggestion by gate land grants in territory ceded counsel for the petitioners, Spies to the United States under treaty and Fielden-Spies having been of Guadalupe-Hildago, 1848, was born in Germany and Fielden in not a violation of the treaty or an Great Britain—that they have been invasion of any right or reservation denied by the decision of the court secured by the Constitution of the below rights guaranteed to them State or of the United States. by treaties between the United See also Haver vs. Yaker, U. S. States and their respective coun- Sup. Ct. 1869, 9 Wallace, 32, tries, it is sufficient to say that no DAVIS, J. such questions were made and de $ 357. cided in either of the courts below, 1 The Slaughter House Cases, U. and they cannot be raised in this S. Sup. Ct. 1872, 16 Wallace, 36, court for the first time. Besides, MILLER, J. In speaking of these we have not been referred to any cases Mr. Carson, in his History treaty, neither are we aware of any, of the Supreme Court says (pp. under which such a question could 459-460): “It held that be raised.”

the law in question was a police Brooks vs. Missouri, U. S. Sup. regulation for the health and comCt. 1888, 124 U. S. 394, WAITE, Ch. J. fort of the people entirely within

This was a writ of error in a the power of State Legislatures and criminal case which was dismissed unaffected either by the Constituon the authority of Spies vs. Illinois. tion of the United States previous Treaty rights were not involved, to the adoption of the Amendments, but the doctrine in Spies vs. Illinois or since ... This decision was as to the supremacy of the State in severely criticised and in its defense legislation in regard to crimes was Mr. Justice Miller, who always reaffirmed.

ferred to it in terms of pride, said In re Kemmler, U. S. Sup. Ct. at an address delivered before the 1890, 136 U. S. 436, FULLER, Ch. J. alumni of the Law Department of

In re Shibuya Jugiro, U. S. Sup. Michigan on the Supreme Court of Ct. 1891, 140 U. S. 291, HARLAN, J. the United States at the semi-cen

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