(concurring). In view of the fact that the question at bar is already before the Supreme Court on a certificate from the 'Sixth Circuit, I should have preferred to certify this ease as well. However, as my brothers think otherwise, I have' considered it on its merits.
The best argument against the tax seems to me to be that stated in the opinion of the learned District Judge, and it is this: Succession taxes must rest upon a historical basis; inherently they are taxes on property, because they so far invade the interests which the law collectively protects as property as to leave too little unincumbered by the tax. A gift tax has no historical justification, because it was unknown in 1789.
Even so, and I do not mean that the reasoning is inexorable, it does not seem to me that we need so straitly circumscribe the powers of Congress to what had been done in the eighteenth century. It is unlikely, had the practice then arisen to avoid estate taxes, either by settlements, dependent upon the death of the settler, or by outright gifts, that anybody would have felt it more than a step in the same path to include them with testamentary dispositions, properly speaking.
Considering the amendments of 1916 (Comp. St. § 6336a et seq.) and 1918 (Comp. St. § 6336%a et seq.), which covered settlements with remainders on the settler’s death, and this amendment of 1924, which covers outright gifts of over $50,000, -fre must assume, I think, that Congress supposed these to be in pari materia and progressively in execution of the main design. This is not to use the power of taxation for an ulterior purpose, as in the Child Labor Cases, 259 U. S. 20, 42 S. Ct. 449, 66 L. Ed. 817, and the like. The statute may be read as ancillary to collecting sources of revenue made available under Knowlton v. Moore, 178 U. S. 41, 20 S. Ct. 747, 44 L. Ed. 969, and New York Trust Co. v. Eisner, 256 U. S. 345, 41 S. Ct. 506, 65 L. Ed. 963, 16 A. L. R. 660. New occasions call out new means, and, if the purpose be lawful, it does not seem to me an insuperable difficulty that it is realized by strange instruments. Whatever was accepted procedure when the Constitution was enacted is constitutional. Murray v. Hoboken Land Co., 18 How. 272, 15 L. Ed. 372. But the converse is not true.