(concurring in the result).
The petitioners are executors of the estate of Seth M. Milliken, deceased. The taxing act of 1916 was passed on the 8th day of September, 1916. In December of 1916 the said-Milliken made a gift in contemplation of death and transferred 2,713 shares of the stock of Minot Mills, Inc., to Ms three *385children. Between the date of the gift and the date of his death the act of 1918 was passed, becoming effective in February, 1919. The testator died on March 5,1920. The act of 1916 and the act of 1918 each contained provisions levying a tax on gifts made during life hut “in contemplation of death.” The pertinent sections1 of the acts are in footnote.
It will be seen from an examination of these sections in the two statutes that they are verbatim except the language (in the act of 1918) “at any time” and “whether such transfer or trust is made or created before or after the passage of this Act.”. Under the facts here it is to be noted—
(1) That the gift in this ease was not made before the passage of the aet of 1916 but after, and would clearly have been taxable under that act had the 1918 act not been passed or if the testator had died the day before the passage of the aet of 1918.
(2) That as this gift was made “in contemplation of death,” it would not make any difference when the testator died. It was liable for tax when he did die, unless Congress by some act relieved the property of liability to taxation, and the inchoate liability having already attached, it is a reasonable construction of the retroactive clause as to this case, and similar ones, that Congress at least intended the provision to reach such cases and had them in mind, therefore intending by the act of 1918 to continue into the aet of 1918 an inchoate liability incurred under the act of 1916. If this be true, it is reasonable to hold that it did not intend to repeal the act of 1916 as to such cases.
(3) But we are not left with only this view to stand upon. Congress in the aet of 1918, after repealing certain titles of the acts of 1916 and 1917, among them Title 2 of the act of 1916, which included the sections quoted in footnote, used this language (40 Stat. 1150 § 1400(b):
“Such parts of Acts [meaning acts repealed] shall remain in force for the assessment and collection of all taxes which have accrued thereunder, ’ * * Provided, That, except as otherwise provided in this Act, no taxes shall be collected under Title I of the Revenue Act of 1916 [which contains the sections involved here] as amended by the Revenue Act of 1917, or Title I or II of the Revenue Act of 1917, in respect to any period after December 31, 1917. [Note the language, “except as otherwise provided in this act-.”] Provided further, That the assessment and collection of all estate taxes * * ? which have accrued under Title II of the Revenue Act of 1916 * * “ shall be according to the provisions of Title IV of this Act [which contains the sections involved here]. In the case of any tax imposed by any part of an Act herein repealed, if there is a tax imposed by this Aet in lieu thereof, the provision imposing such tax shall remain in force until the corresponding tax under this Act takes effect under the provisions of this Act.”
The tax here “imposed was by” a part of the act of 1916 and the tax imposed by the provision of that act “was imposed by this Act [1918] in lieu thereof,” and, therefore, “the provision imposing such tax [1916] shall remain in force until the corresponding tax under this [1918] Act takes effect” under its provisions.
Whatever this provision may mean generally, it covers this ease and seems to show an intention to carry forward the provision of the act of 1916 into the aet of 1918, and *386make it effective under the provisions of that act by re-enacting it, and that as to such reenactments the provision as to repeal would not be effective. This view of the matter is strengthened by the additional language' in section 402(e) of the act of 1918, viz, “whether such transfer or trust is made or created before or after the passage of this Act.”
According to the construction presented by the petitioners, we would have this situation, namely, that had the donor died the day before the act of 1918 became effective there would have been no question of liability, but if he had died the day after the passage of that act there would be no liability, because the act of 1916 had been repealed and the liability released thereby.- Rather than hold that Congress contemplated such an effect by the repealing clause of the act of 1918, it is more reasonable to hold that Congress by re-enacting the very words of sections 201 and 202(b) of the act of 1916 into the act of 1918 intended the 1918 act, as to these sections, to be a continuation of the 1916 act, and that, as to these sections of the act of 1916 which were thus re-enacted, it intended that the repeal should not apply. This construction imposes no hardship upon them.
Under the facts of this case there is nothing capricious or arbitrary in the retroactive clause as thus construed. Where the subsequent act from its provisions gives reasonable grounds for holding that it was a continuation of the previous act, even though there has been a formal repeal, it will be held to be a continuation of the old act with modification contained in the new. See the following cases: Campbell v. California, 200 U. S. 87, 26 S. Ct. 182, 50 L. Ed. 382; Steamship Co. v. Joliffe, 2 Wall. 450, 458, 459, 17 L. Ed. 805; Gulf, Colo. & Santa Fe Railway Co. v. Dennis, 224 U. S. 503, 507, 32 S. Ct. 542, 543, 56 L. Ed. 860; Wright v. Oakley, 5 Metc. (Mass.) 406; and Bear Lake & River Water Works & Irrigation Co. v. Garland, 164 U. S. 1, 11, 12, 17 S. Ct. 7, 9, 41 L. Ed. 327.
In the ease of Campbell v. California, 200 U. S. 87, 26 S. Ct. 182, 50 L. Ed. 382, in which the court cited with approval the Joliffe and Wright Cases, the court spoke of the general and continuing nature of the legislation contained in the statute. The legislation involved in the Campbell Case was an inheritance tax law.
I The facts in the case of Steamship Co. v. (Joliffe, supra, which is a leading case, were, that a pilot under a contract authorized by statute earned certain pilot fees. The act authorizing the fees was repealed. The court in holding that the second act was a continuation of the first in spite of the repealing clause, said:
“ * * * The new act re-enacts substantially all the provisions of the original act, relating to pilots and pilot regulations for the harbor of San Ehaneiseo. It subjects the pilots to similar examinations; it requires like qualifications; it prescribes nearly the same fees for similar services; and it allows half-pilotage fees under the same -circumstances as provided in the original act. * * * The new act took effect simultaneously with the repeal of the first act; its provisions may, therefore, more properly be said to be substituted in the place of, and to continue in force with modifications, the provisions of the original act, rather than to have abrogated and annulled them.”
And the court in its opinion quotes the following language of Chief Justice Shaw in Wright v. Oakley, 5 Metc. (Mass.) 406:
“ * * * but these repeals went into operation simultaneously with the revised statutes, which were substituted for them, and were intended to replace them, with such modifications as were intended to be made by that revision. There was no moment in which the repealing act stood in force without being replaced by the corresponding provisions of the revised statutes. In practical operation and effect, therefore, they are rather to be considered as a continuance and modification of old laws than as an abrogation of those old and the re-enactment of new ones.”
In Gulf, Colo. & Santa Fe Railway Co. Case, "supra, where there was involved a statute containing a simultaneous repeal and re-enactment of a prior statute, the court said:
“During its pendency in this court the legislature of the state passed a new statute, embodying the provisions of the prior law, with some modifications, and also in terms repealing it. The point was then made that the repealing clause terminated the right to recover, and therefore that the action could no longer be maintained. And while the question whether the simultaneous re-enactment and repeal of the prior law interrupted its continuity was a question of local law, it was fully considered, and the conclusion was reached that in practical operation and effect there was no repeal, but only a continuanco of the prior law. * * * ”
*387In the Bear Lake & River Waterworks & Irrigation Co. Case, supra, it is said:
“ * * * Although there is a formal repeal of the old by the new statute, still there never has been a moment of time since the passage of the act of 1888 when these similar provisions have not been in force. Notwithstanding, therefore, this formal repeal, it is, as we think, entirely correct to say that the new act should be construed as a continuation of the old with the modification contained in the new aet.”
The court cited with approval Steamship Co. v. Joliffe, supra.
In all of these eases it was held that the mere repeal does not make the question of the application of a statute a moot question, and that if the subsequent act is of the “general and continuing nature of the legislation contained in the previous act,” they should be treated as one act.
I am the more impelled to this construction of the act as it eliminates the question of constitutionality of the act of 1918. In passing upon the constitutionality of a law it has been the undeviating rule of the Supreme Court to so construe the act involved as to uphold, if possible, its constitutionality. It is a rule of which the courts must be carefully mindful in the performance of this “gravest and most delicate duty.” It is well settled that among other matters to be taken into consideration, as to two interpretations of a statute!, the one destroying and the other saving the constitutionality of the act, it is the court’s duty to adopt the latter. The right of the federal courts to declare an act of Congress unconstitutional has been upheld and accepted, though there have been charges of judicial usurpation at different periods in the history of the country, even within the last decade, but the annulment of an act on constitutional grounds must be avoided if possible, and the courts have even gone the length of giving very strained constructions to statutes in order to accomplish this purpose. See United States v. Jin Puey Moy, 241 U. S. 394, 401, 402, 36 S. Ct. 658, 60 L. Ed. 1061; and United States ex rel. Atty. Gen. v. Delaware & Hudson Company, 213 U. S. 366, 407, 408, 29 S. Ct. 527, 53 L. Ed. 836.
There is still another view of this case. As stated, this is a ease of a gift “in contemplation of death.” In this it differs from the eases of Nichols v. Coolidge, 274 U. S. 531, 541, 47 S. Ct. 710, 713, 71 L. Ed. 1184, 52 A. L. R. 1081, in which the court said:
“ * * * The right to become beneficially entitled is not the occasion for it. There is no claim that the transfers were made in contemplation of death or with purpose to evade taxation.”
And in Blodgett v. Holden, 275 U. S. 142, 146, 48 S. Ct. 105, 106, 72 L. Ed. 206, the court said: “ * * H transferred by gifts inter vivos, and not in contemplation of death. * * * ”
In Untermyer v. Anderson, 276 U. S. 440, 445, 48 S. Ct. 353, 354, 72 L. Ed. 645, it was stated:
“ * * * And, further, that so far as applicable to bona fide gifts not made in anticipation of death and fully consummated prior to June 2, 1924, those provisions are arbitrary and invalid under the due process clause of the Fifth Amendment.”
It thus seems that in these three eases, in holding a taxing act for the purpose of raising revenue unconstitutional under the particular facts of those eases, the ease of gifts made “in contemplation of death” was expressly reserved, and the language of - the court seems to indicate that in those eases, if the gifts had been made “in contemplation of death,” the decision might have been different.
As it has been the policy of this court not to adjudge an act of Congress unconstitutional, and of the Supreme Court, as heretofore stated, to construe an act so as to uphold its constitutionality if possible, and in view of the interpretation which I give the act of 1918 as a continuation of the act of 1916, as far as the sections of the act in dispute here are concerned, and the evident exception from the three decisions supra, of gifts made in contemplation of death, I concur in the result reached by the court.
“See. 202. That the value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated: * * *
“(b) To the extent of any interest therein of which the decedent has at any time made a transfer, or with respect to which he has created a trust, in contemplation of or intended to take effect in possession or enjoyment at or after his death, except in case of a bona fide sale for a fair consideration in money or money’s worth. Any transfer of a material part of his property in the nature of a final-disposition or distribution thereof, made by the decedent within two years prior to his death without such a consideration, shall, unless shown to the contrary, be deemed to have been made in contemplation of death within the meaning of this title.” 39 Stat. 777-778.
“Sec. 402. That the value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated— * * *
“(c) To the extent of any interest therein of which the decedent has at any time made a transfer, or with respect to which he has at any time created a trust, in contemplation of or intended to take effect in possession or enjoyment at or after his death (whether such transfer or trust is made or created before or after the passage of this act), except in case of a bona fide sale for a fair consideration in money or money’s worth. Any tránsfer of a material part of his property in the nature of a final disposition or distribution thereof, made by the decedent within two years prior to his death without such a consideration, shall, unless shown to the contrary, be deemed to have been made in contemplation of death within the meaning of this title.” 40 Stat. 1097. (Italics mine.)