Harlan F. Stone

“ 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. ”

“ 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. ”

“ 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. ”