1. Where the validity of a state tax is challenged under the
Federal Constitution, this Court must determine for itself the
nature and incidence of the tax. P. 295 U. S.
2. A resident of Ohio owned transferable trust certificates
showing him to be a beneficiary under separate deeds of trust on
several parcels of land, some situated within and some outside of
the state. Each certificate declared him to be the owner of a
specified fractional interest in the property held in the trust
under which it was issued. Each trustee was bound by his
declaration of trust to hold and manage the property for the use
and benefit of certificate owners; to collect and distribute among
them the rents, and, in case of sale, to make pro rata distribution
of the proceeds. Each trustee held only one parcel of land, and, in
the management thereof, was free from control by the beneficiaries.
Each parcel had been assessed in the name of the legal owner or
lessee for local real estate taxes, without deduction on account of
any interest of the certificate owners. Held,
of Ohio to subject the beneficial interests represented by the
certificates to a tax imposed on "investments" and other intangible
property, measured by a percentage of the income yield --
investments being so defined by the statute as to include equitable
interest in land and rents divided into shares evidenced by
transferable certificates -- is unconstitutional both in respect of
such interests in land outside of the state and of those in land
within the state. Pp. 295 U. S. 428
295 U. S.
128 Oh.St. 597 reversed.
Appeal from a judgment of the Supreme Court of Ohio upholding
the validity of an application of the state intangible property
tax. For decisions of the lower state courts, see
App. 255, 30 Ohio N.P. 147.
Page 295 U. S. 427
MR. JUSTICE McREYNOLDS delivered the opinion of the Court.
January 1, 1932 -- tax listing day -- § 5328-1, the Ohio General
Code, [Footnote 1
that all investments and other intangible property of persons
residing within the state should be subject to taxation. Section
5323 so defined "investment" as to include incorporeal rights of a
pecuniary nature from which income is or may be derived, including
equitable interests in land and rents and royalties divided into
shares evidenced by transferable certificates. Section 5638 imposed
upon productive investments a tax amounting to five percentum of
their income yield, and § 5389 defined "income yield" so as to
include the aggregate income paid by the trustee to the holder,
etc. Pertinent portions of §§ 5388 and 5389 are in the margin.
Page 295 U. S. 428
Appellant owned transferable certificates showing that he was
beneficiary under seven separate declarations of trust, and
entitled to stated portions of rents derived from specified parcels
and land, some within Ohio, some without. On account of these
beneficial interests, he received $2,231.29 during 1931. The lands
are adequately described in the margin. [Footnote 3
The tax officers of Hamilton county, where appellant resided,
threatened to assess these beneficial interests, and then to
collect a tax of five percentum of the income therefrom.
Page 295 U. S. 429
To prevent this, he instituted suit in the Common Pleas Court.
The petition asked that § 5323, General Code, he declared
unconstitutional, and that appellees be restrained from taking the
threatened action. The trial court granted relief as prayed, the
Court of Appeals reversed, and its action was approved by the
With commendable frankness, counsel admit that, under the
Fourteenth Amendment, the state has
"no power to tax land or interests in land situate beyond its
borders, nor has it power to tax land or interests in land situate
within the state in any other manner than by uniform rule according
Consequently, they say,
"if the property of appellant, which the appellees seek to tax
in this case is land or interest in land situate within or without
the state, their action is unconstitutional, and should be
The validity of the tax under the federal Constitution is
challenged. Accordingly, we must ascertain for ourselves upon that
it was laid. Our concern in with realities, not nomenclature.
Moffitt v. Kelly, 218 U. S. 400
218 U. S.
-405; Macallen Co. v. Massachusetts,
279 U. S. 620
279 U. S.
-626; Educational Films Corp. v. Ward,
282 U. S. 379
282 U. S. 387
Lawrence v. State Tax Commission, 286 U.
, 286 U. S. 280
If the thing here sought to be subjected to taxation is really an
interest in land, then, by concession, the proposed tax is not
permissible. The suggestion that the record discloses no federal
question is without merit.
Three of the parcels of land lie outside Ohio; four within; they
were severally conveyed to trustees. The declaration of trust
relative to the Clark-Randolph Building Site, Chicago, is typical
of those in respect of land beyond Ohio; the one covering East
Sixth street property, Cleveland, is typical of those where the
land lies in Ohio, except Lincoln Inn Court, Cincinnati. Each
parcel has been assessed for customary taxes in the name of legal
owner or lessee according to local law, without
Page 295 U. S. 430
deduction or diminution because of any interest claimed by
appellant and others similarly situated.
The trust certificates severally declare: that Max Senior has
purchased and paid for and is the owner of an undivided 340/1275
interest in the Lincoln Inn Court property; that he is registered
on the books of the trustee as the owner of 5/3250 of the equitable
ownership and beneficial interest in the Clark Randolph Building
Site, Chicago; that he is the owner of 6/1050 of the equitable
ownership and beneficial interest in the East Sixth street
property, Cleveland. In each declaration, the trustee undertakes to
hold and manage the property for the use and benefit of all
certificate owners; to collect and distribute among them the rents,
and, in case of sale, to make pro rata
distribution of the
proceeds. While certificates and declarations vary in some details,
they represent beneficial interests which, for present purposes,
are not substantially unlike. Each trustee holds only one piece of
land, and is free from control by the beneficiaries. They are not
joined with it in management. See Hecht v. Malley,
265 U. S. 144
265 U. S.
The state maintains that appellant's interest is
"a species of intangible personal property consisting of a
bundle of equitable choses in action because the provisions of the
agreements and declarations of trust of record herein have
indelibly and unequivocally stamped that character upon it by
giving it all the qualities thereof for purposes of the management
and control of the trusts. At the time the trusts were created, the
interests of all the beneficiaries consisted merely of a congeries
of rights etc., and such was the interest acquired by appellant
when he became a party thereto. . . . The rights of the beneficiary
consist merely of claims against the various trustees to the
distribution of income, during the continuance of
the trusts, and to the pro rata
Page 295 U. S. 431
the proceeds of a sale of the trust estates upon their
Appellant submits that ownership of the trust certificate is
evidence of his interest in the land, legal title to which the
trustee holds. This view was definitely accepted by the Attorney
General of Ohio in written opinions Nos. 3640 and 3869 (Opinions
1926, pp. 375, 528) wherein he cites pertinent declarations by the
courts of Ohio and of other states. See also
Law Rev. 255.
The theory entertained by the Supreme Court concerning the
nature of appellant's interests is not entirely clear. The
following excerpts are from the headnotes of its opinion which in
Ohio constitute the law of the case:
"Land trust certificates in the following trusts [the seven
described above], are mere evidences of existing rights to
participate in the net rentals of the real estate being
administered by the respective trusts."
"Ascribing to such certificates all possible virtue, the holder
thereof is, at best, the owner of equitable interests in real
estate divided into shares evidenced by transferable certificates.
Sec. 5323, General Code (114 Ohio Laws 715), does not provide for a
tax against the equitable interests in land, but does provide a tax
against the income derived from such equitable interests."
Apparently no opinion of any court definitely accepts the theory
now advanced by appellees, but some writers do give it approval
because of supposed consonance with general legal principles. The
conflicting views are elaborated in articles by Professor Scott and
Dean Stone in 17 Columbia Law Review (1917) at pp. 269 and 467.
Maguire v. Trefry, 253 U. S. 12
relied upon by appellees, does not support their position. There,
the Massachusetts statute undertook to tax incomes; the securities
(personalty) from which the income arose were
Page 295 U. S. 432
held in trust at Philadelphia; income from securities taxable
directly to the trustee was not within the statute. The opinion
accepted and followed the doctrine of Blackstone v.
Miller, 188 U. S. 189
Fidelity & Columbia Trust Co. v. Louisville,
245 U. S. 54
cases were disapproved by Farmers' Loan & Trust Co. v.
Minnesota, 280 U. S. 204
They are not in harmony with Safe Deposit & Trust Co. v.
Virginia, 280 U. S. 83
views now accepted here in respect of double taxation. See
Baldwin v. Missouri, 281 U. S. 586
Beidler v. South Carolina Tax Comm'n, 282 U. S.
; First National Bank v. Maine, 284 U.
In Brown v. Fletcher, 235 U. S. 589
235 U. S. 599
we had occasion to consider the claim that a beneficial interest in
a trust state amounts to a chose in action, and is not an interest
in the res,
subject of the trust. Through Mr. Justice
Lamar, we there said:
"If the trust estate consisted of land, it would not be claimed
that a deed conveying seven-tenths interest therein was a chose in
action within the meaning of § 24 of the Judicial Code. If the
funds had been invested in tangible personal property, there is, as
pointed out in the Bushnell
case (Bushnell v.
9 Wall. 387, 76 U. S.
), nothing in § 24 to prevent the holder, by virtue
of a bill of sale, from suing for the 'recovery of the specific
thing, or damages for its wrongful caption or detention.' And if
the funds had been converted into cash, it was still so far
property -- in fact, instead of in action -- that the owner, so
long as the money retained its earmarks, could recover it or the
property into which it can be traced, from those having notice of
the trust. In either case, and whatever its form, trust property
was held by the trustee, not in opposition to the cestui que
so as to give him a chose in action, but in possession
for his benefit, in accordance with the terms of the testator's
will. . . . "
Page 295 U. S. 433
"The beneficiary here had an interest in and to the property
that was more than a bare right, and much more than a chose in
action. For he had an admitted and recognized fixed right to the
present enjoyment of the estate, with a right to the corpus itself
when he reached the age of fifty-five. His estate in the property
thus in the possession of the trustee, for his benefit, though
defeasible, was alienable to the same extent as though in his own
possession and passed by deed. Ham v. Van Orden,
257, 270; Stringer v. Young, Trustee,
191 N.Y. 157, 83
N.E. 690; Lawrence v. Bayard,
7 Paige 70; Woodward v.
16 N.J.Eq. (83), 84. The instrument by virtue of
which that alienation was evidenced, whether called a deed, a bill
of sale, or an assignment, was not a chose in action payable to the
assignee, but an evidence of the assignee's right, title, and
estate in and to property."
The doctrine of Brown v. Fletcher
supported by courts and writers. Narragansett Mutual Fire Ins.
Co. v. Burnham,
51 R.I. 371, 154 A. 909; Bates v. Decree
of Judge of Probate,
131 Me. 176, 160 A. 22; Bogert, Handbook
of the Law of Trusts, 430; 3 Pomeroy Equity Jurisprudence, 4th Ed.,
1928, § 975, p. 2117; 17 Columbia Law Review, 269, 289. We find no
reason for departing from it.
The challenged judgment must be reversed.
By Act of June 29, 1931 (114 Ohio Laws p. 714), providing for
levy of taxes on intangible property etc., the Ohio General
Assembly amended §§ 5323, 5324, 5325, 5326, 5327, 5328, 5360, 5382,
5385, 5386, 5388, 5389 of the General Code and added supplemental
§§ 5325-1, 5328-1, and 5328-2.
"§ 5388. . . . Excepting as herein otherwise provided, personal
property shall be listed and assessed at seventy percentum of the
true value thereof, in money, on the day as of which it is required
to be listed, or on the days or at the times as of which it is
required to be estimated on the average basis, as the case may be.
Deposits not taxed at the source shall be listed and assessed at
the amount thereof in dollars on the day as of which they are
required to be listed. Moneys shall be listed and assessed at the
amount thereof in dollars on hand on the day as of which they are
required to be listed. In listing investments, the amount of the
income yield of each for the calendar year next preceding the date
of listing shall, excepting as otherwise provided in this chapter,
be stated in dollars and cents, and the assessment thereof shall be
at the amount of such income yield; but any property defined as
investments in either of the first two subparagraphs of § 5323 of
the General Code which has yielded no income during such calendar
year shall be listed and assessed as unproductive investments at
the true value thereof, in money, on the day as of which such
investments are required to be listed. . . ."
"§ 5389. . . . As used in § 5388 of the General Code and
elsewhere in this chapter, the 'true value in money' of any
property means the usual selling price thereof at the time or times
and place as of which it is required to be listed. . . ."
"'Income yield' as used in § 5388 of the General Code and
elsewhere in this title, means the aggregate amount paid as income
by the obligor, trustee or other source of payment to the owner or
owners, or holder or holders of an investment, whether including
the taxpayer or not, during such year, and includes the following:
. . . in the case of equitable interests, . . . the cash
distributions of income so made. . . ."
Lincoln Inn Court, Cincinnati, Ohio; Clark-Randolph Building
Site, Chicago, Illinois; Woman's City Club, Cincinnati, Ohio;
Rockefeller Building, Cleveland, Ohio; Insurance Exchange Building,
Boston, Massachusetts; City National Bank Building, Omaha,
Nebraska, and Fidelity Mortgage Company, Cleveland, Ohio.
MR. JUSTICE STONE, dissenting*
I think the judgment should be affirmed.
Tax laws are neither contracts nor penal laws. The obligation to
pay taxes arises from the unilateral action of government in the
exercise of the most plenary of sovereign powers, that to raise
revenue to defray the expenses of government and to distribute the
burden among those who must bear it. See
Alabama v. United
Page 295 U. S. 434
U.S. 502, 282 U. S. 507
To that obligation are subject all rights of persons and property
which enjoy the protection of the sovereign and are within the
reach of its power.
For centuries, no principle of law has won more ready or
universal acceptance. Even now that it is doubted, the doubt is
rested on no more substantial foundation than want of
"jurisdiction" to tax, and the assertion that the Fourteenth
Amendment is endowed with a newly discovered efficacy to forbid
"double taxation" when the sovereignty imposing the tax is that of
two or more states. See Farmers Loan & Trust Co. v.
Minnesota, 280 U. S. 204
280 U. S. 210
Safe Deposit & Trust Co. v. Virginia, 280 U. S.
, 280 U. S. 92
Baldwin v. Missouri, 281 U. S. 586
281 U. S. 593
compare Burnet v. Brooks, 288 U.
, 288 U. S. 400
But, as no opinion of this Court has undertaken to
define the taxation which is thus forbidden because it is double,
or to declare that different legal rights founded upon the same
economic interest may never, under any circumstances, be compelled
to contribute to the cost of government of two states whose
protection they respectively enjoy, it would seem still to be open
to inquiry whether the particular tax now imposed infringes any
constitutional principle capable of statement and definition.
When we speak of the jurisdiction to tax land or a chattel as
being exclusively in the state where it is located, we mean no more
than that, in the ordinary case of ownership of tangible property,
the legal interests of ownership enjoy the benefit and protection
of the laws of that state alone, and that it alone can effectively
reach the interests protected for the purpose of subjecting them to
the payment of the tax. Other states are said to be without
jurisdiction, and so without constitutional power, to tax if they
afford no protection to the ownership of the property and cannot
lay hold of any interest in the property in order to compel payment
of the tax. See Union Refrigerator
Page 295 U. S. 435
Co. v. Kentucky, 199 U. S. 194
199 U. S. 195
199 U. S. 202
Frick v. Pennsylvania, 268 U. S. 473
268 U. S.
But when new and different legal interests, however named, are
created with respect to land or a chattel, of such a character that
they do enjoy the benefits of the laws of another state and are
brought within the reach of its taxing power, I know of no
articulate principle of law or of the Fourteenth Amendment which
would deny to the state the right to tax them. No one would doubt
the constitutional power of a state to tax its residents on their
shares of stock in a foreign corporation whose only property is
real estate or chattels located elsewhere, Darnell v.
Indiana, 226 U. S. 390
Hawley v. Malden, 232 U. S. 1
compare Corry v. Baltimore, 196 U.
; Kidd v. Alabama, 188 U.
; Cream of Wheat Co. v. County of Grand
Forks, 253 U. S. 325
253 U. S. 329
or to tax a valuable contract for the purchase of land or chattels
located in another state, see Citizen's National Bank v.
Durr, 257 U. S. 99
257 U. S. 108
compare Gish v. Shaver,
140 Ky. 647, 650, 131 S.W. 515;
Golden v. Munsinger,
91 Kan. 820, 823, 139 P. 379;
Marquette v. Michigan Iron & Land Co.,
132 Mich. 130,
92 N.W. 934, or to tax a mortgage of real estate located without
the state even though the land affords the only source of payment,
see Kirtland v. Hotchkiss, 100 U.
; compare Savings & Loan Society v.
Multnomah County, 169 U. S. 421
Bristol v. Washington County, 177 U.
. Each of these legal interests, it is true, finds
its only economic source in the value of the land, and the rights
which are elsewhere subjected to the tax can be brought to their
ultimate economic fruition only through some means of control of
the land itself. But the means of control may be subjected to
taxation in the state of its owner, whether it be a share of stock
or a contract or a mortgage. There is no want of jurisdiction to
tax these interests where they are owned, in the sense that the
Page 295 U. S. 436
lacks power to appropriate them to the payment of the tax. No
court has condemned such action as capricious, arbitrary, or
oppressive. The Fourteenth Amendment does not forbid it, for it is
universally recognized that these interests, of themselves, are in
some measure clothed with the legal incidents of property in the
taxing state and enjoy there the benefit and protection of its
Similarly, I do not doubt that a state may tax the income of its
citizen derived from land in another state. The right to impose the
tax is founded upon the power to exact it, coupled with the
protection which the state affords to the taxpayer in the receipt
and enjoyment of his income. Lawrence v. State Tax Comm'n,
286 U. S. 276
286 U. S. 279
I can perceive no more constitutional objection to imposing such a
tax than to the taxation of a citizen on income derived from a
business carried on by the taxpayer in another state, and subject
to taxation there, which we upheld in Lawrence v. State Tax
Commission, supra; see Cook v. Tait, 265 U. S.
, or to the tax on income derived from securities
having a tax situs in another state, upheld in Maguire v.
Trefry, 253 U. S. 12
see also Fidelity & Columbia Trust Co. v. Louisville,
245 U. S. 54
compare DeGanay v. Lederer, 250 U.
. The fact that it is now thought by the Court to
be necessary to discredit or overrule Maguire v. Trefry,
in order to overturn the tax imposed here should lead
us to doubt the result, rather than the authority which plainly
challenges it, and should give us pause before reading into the
Fourteenth Amendment so serious and novel a restriction on the
vital elements of the taxing power.
The present tax, measured by income, is upon intangible property
interests owned by a citizen of Ohio. They are represented by
transferable certificates, issued, by trustees of land, under
contracts by which each trustee undertakes to hold the title of
specified lands in trust for the benefit of the certificate
holders; to receive the income and to
Page 295 U. S. 437
pay it over to them ratably, after meeting expenses and
depreciation, and to receive and distribute ratably the proceeds of
sale of the land if sold under existing options. In the event of
default by the lessee, the trustee is given plenary authority to
terminate the lease, take possession of the land, and sell it, as
fully as though it were the sole legal and equitable owner. The
trustee is authorized to settle claims upon contract and tort made
against the trustee or the trust estate, and is entitled to
indemnity from the estate for all personal liability and expenses.
It is authorized to borrow money and to give the trust estate as
The beneficiaries have no right to possession or to partition of
the property, and can maintain no action at law with respect to it.
They cannot be assessed, and incur no liability by virtue of the
administration of the trust estate. The trust certificates are
freely transferable, as are shares of stock in a corporation. The
rights of the beneficiaries are so identified with the certificates
that they may be transferred only on surrender of the certificate
to the trustee. Certificates lost, stolen, or destroyed may be
replaced by the trustee at its option and in its discretion.
Compare Selliger v. Kentucky, 213 U.
, 213 U. S.
There is thus created an active trust of land, under which the
trustee is clothed with all the incidents of legal ownership, and
which is given the status of a business entity separate the
distinct, for all practical purposes, from the interests of the
certificate holders. See Crocker v. Malley, 249 U.
; Hecht v. Malley, 265 U.
, 265 U. S. 161
Burk-Waggoner Oil Assn. v. Hopkins, 269 U.
. The beneficiaries have none of the incidents of
legal ownership. They can neither take nor defend possession of the
land. But they are clothed with rights in personam,
form both contractual and equitable, enforceable against the
trustee by suit in equity for an accounting, to compel performance
of the trust or to restrain breaches of it.
Page 295 U. S. 438
Such actions are transitory and maintainable wherever the
trustee may be found. Massie v.
6 Cranch 148, 10 U. S.
-160; Beattie v. Johnstone,
8 Hare 169, 177;
Gardner v. Ogden,
22 N.Y. 327, 333-339.
The owner of the certificates in Ohio is thus vested with
valuable rights, differing from those of ordinary ownership,
including those enforceable against the trustee within as well as
without the state. They are brought within the control of the
state. These rights, the physical certificates with which they are
identified, and the receipt and enjoyment of their income by the
owner, are each protected by Ohio laws. If we look to substance,
rather than form, to the principles which underlie and justify the
taxing power, rather than to descriptive terminology which, merely
as a matter of convenience, we may apply to the interest taxed, it
would seem to be as much subject to the taxing power as any other
intangible interest brought within the control and protection of
the state, even though its ultimate economic enjoyment may be
dependent wholly on property located and taxed elsewhere. See
Citizens' National Bank v. Durr, supra; Maguire v. Trefry,
supra, 253 U. S.
It is unimportant what labels writers on legal theory, the
courts of Ohio, or this Court may place upon this interest. The
Fourteenth Amendment did not adopt as ultimate verities the quaint
distinctions taken three centuries ago by Sir Edward Coke between
things that savour of the realty and other forms of right, and
between corporeal and incorporeal rights. In applying the
Fourteenth Amendment, we may recognize what he failed to realize --
that all rights are incorporeal, and that whether they are rightly
subjected to state taxing power must be determined by recourse to
the principles upon which taxes have universally been laid and
collected, rather than by the choice of a label which, by
definition previously agreed upon, will infallibly mark the
interest as nontaxable.
Page 295 U. S. 439
In every practical aspect -- and taxation is a practical matter
-- the trust certificate holder stands in the same relationship to
the land as the stockholder of a landowning corporation. It is not
denied that the petitioner receives as much benefit and protection
from the State of Ohio with respect to his certificates as does the
owner of corporate stock, or that his interest is as much within
the reach of the state power. Only by resort to subtle refinements
of legal doctrine, devised without reference to the problems of
taxation and irrelevant to them, or by treating the Fourteenth
Amendment as an instrument for giving effect to our own peculiar
convictions of what is morally or economically desirable, is it
possible to sustain the taxation of the one and not the other.
Even though the tax be destroyed so far as it is imposed on
petitioner's interest in the trusts of lands outside of Ohio, it
cannot, for any reason advanced to support that conclusion, be
deemed invalid as applied to appellant's interest in the Ohio
trusts. The opinion of the court suggests no other reason.
Whatever name we may give to the interest taxed, Ohio is not
without jurisdiction of the land, the trustee, the certificates, or
the owners of them. All are within the state. The objection to
double taxation by a single sovereign is no more potent under the
Fourteenth Amendment than the objection that a tax otherwise valid
has been doubled. See Carley & Hamilton v. Snook,
281 U. S. 66
281 U. S. 72
Magnano Co. v. Hamilton, 292 U. S. 40
imposition of a tax on a particular interest in land already taxed
does not infringe any constitutional immunity.
Swiss Oil Corp. v. Shanks, 273 U.
, 273 U. S. 413
and cases cited.
The fact that the certificates are taxed, and the owners of
interests in trusts of land not represented by certificates are
untaxed, plainly involves no forbidden discrimination.
Page 295 U. S. 440
The owners of transferable certificates, representing an
equitable interest in a trust of land divided into shares, enjoy
privileges and advantages not attaching to other forms of
ownership, which are an adequate basis for a difference in
taxation. See Southwestern Oil Co. v. Texas, 217 U.
, 217 U. S. 121
Bell's Gap R. Co. v. Pennsylvania, 134 U.
, 134 U. S. 237
Home Insurance Co. v. New York, 134 U.
, 134 U. S. 606
Brown-Forman Co. v. Kentucky, 217 U.
, 217 U. S. 572
State Board of Tax Comm'rs v. Jackson, 283 U.
, 283 U. S.
The judgment now given cannot rest on the Delphic concession of
counsel that the state has "no power to tax land or interests in
land situate beyond its borders," and that, if situate within the
state, there is no power to tax them "in any other manner than by
uniform rule according to value." The concession, so far as it
relates to the Ohio trusts, plainly has reference to requirements
of the state, and not the federal, Constitution. For the Fourteenth
Amendment does not restrict a state to the taxation of all
interests in land uniformly according to value.
We are not concerned with the validity of the tax under the
state constitution. The state court has plenary power to settle
that question for the litigants and for us, Withers v.
20 How. 84, 61 U. S. 89
13 Wall.190, 80 U. S. 212
Walker v. Sauvinet, 92 U. S. 90
Southwestern Oil Co. v. Texas, supra, 217 U. S. 119
as it has done by sustaining the tax. No concession of counsel
about his theory of the law requires us to adopt his theory,
however mistaken and irrelevant, for decision of the federal
question which is alone before us. None can confer on us
jurisdiction to review on appeal the decision of a state question
by the highest court of the state, or excuse the abuse of power
involved in our reversing its judgment on state grounds.
The objections to the tax affecting the Ohio trusts present no
substantial federal question, or any which the
Page 295 U. S. 441
court has deemed it necessary to consider. The tax affecting the
extra-state trusts should be sustained as not infringing any
MR. JUSTICE BRANDEIS and MR. JUSTICE CARDOZO join in this