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BIRD S. COLER, Comptroller of the City of New York.
Argued February 27, 28, 1900.
Joseph Plummer, a citizen and resident of New York, died October 28, 1898, leaving a last will whereby he bequeathed to Harry Plummer, his executor, $40,000 in United States bonds, issued under the funding act of 1870, in trust, to hold the same during the lifetime of Ella Plummer Brown, daughter of the testator, and to pay the income thereof to her during her life, and at her death to divide the same between and amongst her issue then living.
'It is stipulated and agreed by and between the attorneys for the respective parties to the above-entitled proceedings that the $40,000 in amount at par of bonds of the United States of America, of which the said Joseph Plummer died possessed, and upon the interest in which of Ella Plummer Brown a tax of $161.20 was fixed, assessed, and determined by the order appealed from consist of 4 per cent bonds issued in the year 1877 and due in the year 1907, under and by virtue of and pursuant to the statute of the United States, passed July 14, 1870, entitled 'An Act to Authorize the Refunding of the National Debt,' which authorized the Secretary of the Treasury, among other things, to issue various classes of bonds in the sums therein mentioned, including 'a sum or sums not exceeding in the aggregate one thousand million dollars of like bonds, . . . payable at the pleasure of the United States after thirty years from the date of their issue, and bearing interest at the rate of four per cent per annum; all of which said several classes of bonds and the interest thereon shall be exempt from the payment of all taxes or duties of the United States, as well as from taxation in any form by or under state, municipal, or local authority; and the said bonds shall have set forth and expressed upon their face the above-specified conditions;' and that pursuant to said statute there is set forth on the face of each of said bonds the following clause, that is to say: 'The principal and interest are exempt from the payment of all taxes or duties of the United States, as well as from taxation in any form by or under state, municipal, or local authority."
On December 22, 1899, the surrogate's court affirmed the appraisal and the order imposing a tax. Thereupon Harry Plummer, executor, appealed to the appellate division of the supreme court of the state of New York, which court on January 5, 1900, affirmed the order of the surrogate and the decree of the surrogate's court. From this decree of the appellate division of the supreme court an appeal was taken to the courtof appeals of the state of New York, where, on January 8, 1900, the proceedings and order of the surrogate and the decree of the appellate division were affirmed.
In the notice of appeal to the surrogate's court and in that of the appeal to the court of appeals the grounds of appeal were stated to be the invalidity of the statute of New York purporting to impose a tax upon a transfer by legacy of bonds of the United States, and the invalidity of the statute of the state of New York and of the authority exercised thereunder by the appraiser and the surrogate, in so far as United States bonds were concerned. And the appellant specially set up and claimed a title, right, privilege, and immunity under the Constitution of the United States, and under the statute of the United States in respect to the exemption of said bonds from state taxation in any form.
On January 9, 1900, a writ of error was sued out from this court. sued out from this court.
Messrs. William V. Rowe, Treadwell Cieveland, Horace Russell, and Evarts, Choate, & Beaman for plaintiff in error.
Messrs. Jabish Holmes, Jr., and Edgar J. Levey for defendant in error.
In this case we are called upon to consider the question whether, under the inheritance tax laws of a state, a tax may be validly imposed on a legacy consisting of United States bonds issued under a statute declaring them to be exempt from state taxation in any form.
It is not open to question that a state cannot, in the exercise of the power of taxation, tax obligations of the United States. Weston v. Charleston, 2 Pet. 449, 7 L. ed. 481; New York ex rel. Bank of Commerce v. Commissioners of Taxes, 2 Black, 620, 17 L. ed. 451; Home Ins. Co. v. New York, 134 U. S. 598, 33 L. ed. 1029, 10 Sup. Ct. Rep. 593.
So, likewise, it is settled law that bonds issued by a state, or under its authority by its public municipal bodies, are not taxable by the United States. Mercantile Bank v. New York, 121 U. S. 138, 30 L. ed. 895, 7 Sup. Ct. Rep. 826; Pollock v. Farmers' Loan & T. Co. 157 U. S. 429, 583, 39 L. ed. 759, 820, 15 Sup. Ct. Rep. 673.
As, then, for the reasons advanced and applied in the previous cases, it is not within the power of a state to tax Federal securities, it was not necessary for Congress, in order to secure such immunity, to declare in terms, in the act of July 14, 1870, and on the face of the bonds issued thereunder, that the principal and interest were exempt from taxation in any form by or under state, municipal, or local authority. Such a declaration did not operate to withdraw from the states any power or right previously possessed, nor to create, as between the states and the holders of the bonds, any contractual relation. It doubtless may be regarded as a legitimate mode of advising purchasers of such bonds of their immunity from state taxation, and of manifesting that Congress did not intend to waive this immunity, as it had done in the case of naio nal banks, which are admittedly governmental instrumentalities.
It will be observed that these propositions concede that the tax law of the state of New York in question does not expressly, or by necessary implication, propose to tax Federal securities. It is only when and if, in applying that law to the estates of decedents, such estates are found to consist wholly or partly of United States bonds, that the reasoning of the plaintiff in error, assailing the validity of the statute, can have any application. And the contention is that individuals, in forming or creating their estates, will or may be deterred from offering terms, in the purchasing of such bonds, as favorable as they otherwise might do, if they are bound to know that such portion of their estates as consists of such bonds is to be included, equally with other property, in the assessment of an inheritance tax.
Before addressing ourselves directly to the discussion of these propositions we shall briefly review the decisions in whose light they must be determined.
And, first, what is the voice of the state courts?
A detailed examination of the state decisions is unnecessary, because it is admitted in the brief of the plaintiff in error that in many, if not in most, of the states of the Union inheritance or succession tax laws, similar to the New York statute in question, are and have been long in operation, and that the question of their validity, in cases like the present, has always heretofore been determined by the state courts against the United States. We cannot, however, accede to the suggestion in the brief that the state decisions are entitled to but little consideration, for the reason that 'they are the determinations of a distinct sovereignty, adjudicating upon the rights of the nation, and naturally jealous of their own.' Undoubtedly, in a case like the present, the national law is paramount, and its final exposition is for this court. Still, for reasons too obvious to require statement, the decisions of the state courts, particularly if they are uniform and concur in their reasoning, are worthy of respectful consideration, even if the question be, at last, a Federal one.
Without attempting a rehearsal of the state decisions, we may profitably examine the reasons and conclusions of several of the leading state courts.
A statute of Massachusetts of 1862 provided that every institution for savings, incorporated under that laws of that state, should pay a tax on account of its depositors, on the average amount of its deposits. The Provident Institution of Savings, a corporation having no property except its deposits and the property in which they were invested, and authorized by the general statute of Massachusetts to receive money on deposit and to invest its deposits in securities of the United States, had on deposit on the 1st day of My, 1865, $8,047,652—of which $1,327,000 stood invested in public funds of the United States, exempt by law of the United States from taxation under state authority. The company declined to pay that portion of the tax on its property invested in United States bonds. On suit brought by the commonwealth to recover the same, the supreme judicial court of Massachusetts, regarding the tax as one on franchise, and not on property, held the tax to be lawful. Com. v. Provident Inst. for Savings, 12 Allen, 312.
By a subsequent statute of 1864, chap. 208, corporation shaving capital stock divided into shares were required to pay a tax of a certain percentage upon 'the excess of the market value' of all such stock over the value of its real estate and machinery. The Hamilton Manufacturing Company refused to pay the tax upon that portion of its property which was invested in United States securities, because, by the act of Congress authorizing their issue, they were exempt from taxation by state authority. It was held by the supreme judicial court of Massachusetts that the tax was to be regarded as a tax on the franchise and privileges of the corporation, and was lawful so far as related to Federal securities. Com. v. Hamilton Mfg. Co. 12 Allen, 300.
The legislature of Connecticut in 1863 enacted that the savings banks in the state should annually pay to the treasurer of the state a sum equal to 3/4 of 1 per cent on the total amount of deposits. The 'Society for Savings,' a corporation of Connecticut, refused to pay the tax upon that portion of its deposits which was invested in United States bonds declared by act of Congress to be exempt from taxation by state authority.
On a suit brought by Coite, treasurer of the state, to recover the tax thus withheld, the supreme court of Connecticut decided that the tax in question was not a tax on property, but on the corporation as such, and rendered judgment accordingly for the plaintiff. Coite v. Society for Savings, 32 Conn. 173.
In Pennsylvania it has been repeatedly held that the collateral inheritance law of that state, imposing a tax upon the total amount of the estates of decedents, is valid, although the estate may consist in whole or in part of United States bonds; and this upon the principle that what is called a collateral inheritance tax is a bonus, exacted from the collateral kindred and others, as the conditions on which they may be admitted to take the estate left by a deceased relative or testator; that the estate does not belong to them, except as a right to it is conferred by the state; that the right of the owner to transfer it to another after death, or of kindred to succeed, is the result of municipal regulation, and must, consequently, be enjoyed subject to such conditions as the state sees fit to impose. Strode v. Com. 52 Pa. 181; Clymer v. Com. 52 Pa. 186.
In Virginia the highest court of the state has construed a similar statute as imposing the tax, not upon the property, but upon the privilege of acquiring it by will or under the intestate laws. Eyre v. Jacob, 14 Gratt. 422, 73 Am. Dec. 367; Miller v. Com. 27 Gratt. 110.
The supreme court of Illinois has held valid a statute of that state, entitled 'An Act to Tax Gifts, Legacies, and Inheritances in Certain Cases, and to Provide for the Collection of the Same.' Ill. Rev. Stat. 1895, chap. 120. The constitutionality of the act was denied, because of the alleged want of reasonableness in its classification of those subject to the tax and the want of equality in the amounts imposed. But the supreme court held that an inheritance tax is a tax, not upon property, but on the succession, and that the right to take property by devise or descent is the creature of the law, a privilege, and that the authority which confers the privilege may impose conditions upon it. Kochersperger v. Drake, 167 Ill. 122, 41 L. R. A. 446, 47 N. E. 321.
By an act of the legislature of New Yok (Laws 1881, chap. 361, § 3), it was enacted that 'every corporation, joint-stock company, or association whatever, now or hereafter incorporated or organized under any law of this state, . . . shall be subject to and pay a tax, as a tax upon its corporate franchise or business, into the treasury of the state, annually, to be computed as follows: If the dividend or dividends made or declared by such corporation, joint-stock company, or association during any year ending with the first day of November, amount to six or more than six per centum upon the par value of its capital stock, then the tax to be at the rate of one quarter mill upon the capital stock for each one per centum of dividends so made or declared,' etc.
The Home Insurance Company, a corporation of the state of New York, having a capital stock of $3,000,000, declared a dividend of 10 per cent for the year 1881. During the year 1881 the company had part of its capital invested in United States bonds, exempt from state taxation. The amount so invested changed from $3,000,000 to $1,940,000 in such bonds during the year 1881. The company, in tendering payment of its tax, claimed that so much of the laws of New York as required a tax to be paid upon the capital stock of the company, without deducting from the amount so to be paid that part invested in bonds of the United States, was unconstitutional and void. In an action brought to recover such unpaid portion of the tax, the supreme court of New York, at general term, adjudged that the company was liable to pay such tax; and this judgment was affirmed by the court of appeals. The view of those courts was that, the tax being upon the franchise of the company, it mattered not how its capital stock or property may be invested, whether in United States securities or otherwise. People v. Home Ins. Co. 92 N. Y. 328.
The decisions of the state courts may be summarized by the statement that it is competent for the legislature of a state to impose a tax upon the franchises of the corporations of the state, and upon the estates of decedents resident therein, and in assessing such taxes and as a basis to establish the amount of such assessments, to include the entire property of such corporations and decedents, although composed, in whole or in part, of United States bonds; and that the theory upon which this can be done consistently with the Constitution and laws of the United States is that such taxes are to be regarded as imposed, not upon the property, the amount of which is referred to as regulating the amount of the taxes, but upon franchises and privileges derived from the state.
Let us now proceed to a similar survey of the Federal authorities on this subject.
In Van Allen v. The Assessors, 3 Wall. 573, sub nom. Churchill v. Utica, 18 L. ed. 229, it was held that it was competent for Congress to authorize the states to tax the shares of banking associations organized under the act of June 3, 1864, without regard to the fact that a part or the whole of the capital of such association was invested in national securities declared by the statutes authorizing them to be 'exempt from taxation by or under state authority.' This decision has ever since been acted upon, and its authority has never been questioned by any court, and from it we learn that there is no undeviating policy that, at all times and in all circumstances, the tax system of the states shall not extend to Federal securities.
The next cases to be noted are: Society for Savings v. Coite, 6 Wall. 594, 18 L. ed. 897; Provident Inst. for Savings v. Massachusetts, 6 Wall. 611, 18 L. ed. 907; and Hamilton Mfg. Co. v. Massachusetts, 6 Wall. 632, 18 L. ed. 904.
In these cases this court affirmed the supreme courts of Connecticut and Massachusetts in holding that state taxes may be imposed, the amount of which may be determined by the aggregate amount of the property or capital stock of banking and manufacturing companies, even if such property or capital stock includes United States bonds issued under a statute declaring them exempt from taxation under state authority.
As we have already seen, when referring to the state decisions, the reasoning upon which the state courts proceeded in the case of corporations was that such taxes were to be deemed as laid, not upon the bonds as property, but upon the franchise to do business as a corporation or association derived from the state. This reasoning was approved from this court; and it may be observed in passing that, as appears in the reports of the arguments of counsel, the contention so strongly pressed in the present case, namely, that under no form can Federal securities be practically rendered by state legislation less valuable, was fully argued. See also the case of Scholey v. Rew, 23 Wall. 331, 23 L. ed. 99.
Next worthy of notice is the case of Home Ins. Co. v. New York, 134 U. S. 594, 33 L. ed. 1025, 10 Sup. Ct. Rep. 593. It came here on error to the supreme court of the state of New York, whose judgment had been affirmed by the court of appeals, and was twice argued. The question considered was whether a statute of the state ofNe w York was valid in respect to imposing a tax upon a New York corporation, measured and regulated by the amount of its annual dividends, where those dividends were partly composed of interest of United States bonds owned by the corporation.
As we have heretofore stated, the state courts answered this question in the affirmative, basing their decision upon the proposition that the tax was imposed as a tax upon corporate franchises or privileges, and that such a tax was not invalidated by the circumstance that the measure of its amount was fixed by the amount of the annual dividends of the company partly derived from the interest of United States bonds. 92 N. Y. 328.
In this court the question was elaborately argued, as may be seen in the first report of the case in 119 U. S. 129, 30 L. ed. 350, 8 Sup. Ct. Rep. 1385; and it was again contended that the case fell within the principle of public policy that the states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control the operations of the instrumentalities of the national government, and also that the tax in question was repugnant to the Fourteenth Amendment of the Constitution of the United States.
'Looking now at the tax in this case, . . . we are unable to perceive that it falls within the doctrines of any of the cases cited, to which we fully assent, not doubting their correctness in any particular. It is not a tax in terms upon the capital stock of the company, nor upon any bonds of the United States composing a part of that stock. The statutes designate it a tax upon the 'corporate franchise or business' of the company, and reference is only made to its capital stock and dividends for the purpose of determining the amount of the tax to be exacted each year.
In United States v. Perkins, 163 U. S. 625, 41 L. ed. 287, 16 Sup. Ct. Rep. 1073, the question was whether personal property bequeathed by will to the United States was subject to an inheritance tax under the law of the state of New York.
The facts of the case were that on William W. Merriam, a resident of the state of New York, left a last will and testament, by which he devised and bequeathed all his estate, real and personal, to the United States. The surrogate assessed an inheritance tax of $3,964.23 upon the personal property included in said bequest. Upon appeal to the general term of the supreme court the order of the surrogate's court was affirmed, and upon a further appeal to the court of appeals the judgment of the supreme court was affirmed, and the cause was brought to this court.
It was contended that, upon principle, property of the United States was not subject to state taxation; but it was held by this court, affirming the judgment of the courts below, that the tax was not open to the objection that it was an attempt to tax the property of the United States, since the tax was imposed upon the legacy before it reached the hands of the legatee; that the legacy became the property of the United States after it had suffered a diminution to the amount of the tax, and that it was only upon such a condition that the legislature assented to a bequest of it.
'That the tax is not a tax upon the property itself, but upon its transmission by will or by descent, is also held both in New York and in several other states (Re Swift, 137 N. Y. 77, 18 L. R. A. 709, 32 N. E. 1096), in which it said . . . that 'the effect of this special tax is to take from the property a portion, or percentage of it, for the use of the state, and I think it quite immaterial whether the tax can be precisely classified with the taxation of property or not. It is not a tax upon persons.' Re Hoffman, 143 N. Y. 327, 38 N. E. 311; Schoolfield v. Lynchburg, 78 Va. 366; Strode v. Com. 52 Pa. 181; Re Cullum, 145 N. Y. 593, 40 N. E. 163. In this last case, as well as in Wallace v. Myers, 38 Fed. Rep. 184, it was held that, although the property of the decedent included United States bonds, the tax might be assessed upon the basis of their value, because the tax was not imposed upon the bonds, themselves, but upon the estate of the decedent, or the privilege of acquiring property by inheritance. Eyre v. Jacob, 14 Gratt. 422; Dos Passos, Inheritance Tax Law, chap. 2, § 8, and cases cited.
'Such a tax was also held by this court to be free from any constitutional objection Mager v. Grima, 8 How. 490, 493, 12 L. ed. 1168, 1170, Mr. Chief Justice Taney remarking that 'the law in question is nothing more than the exercise of the power which every state and sovereignty possesses, of regulating the manner and terms within which property, real and personal, within its dominion may be transferred by last will or testament, or by inheritance, and of prescribing who shall and who shall not be capable of taking it. . . . If a state may deny the privilege altogether, it follows that when it grants it, it may annex to the grant any conditions which it supposes to be required by its interests or policy.' To the same effect is United States v. Fox, 94 U. S. 315, 24 L. ed. 192.
One of the propositions recognized in that case applicable to the present one is that a state tax that would be invalid if imposed directly on a legacy to the United States, may be valid if the amount of the tax is taken out of the legacy before it reaches the hands of the government—the theory of such a view apparently being that the property rights of the government do not attach until after the tax has been pid , or until the condition imposed by the tax law of the state has been complied with. Such is also the case in respect to the legacy to Ella Plummer Brown, as the statute in question distinctly makes it the duty of the executor to pay the amount of the tax before the legacy passes to the legatee.
In Magoun v. Illinois Trust & Sav. Bank, 170 U. S. 283, 42 L. ed. 1037, 18 Sup. Ct. Rep. 594, the validity of the inheritance tax law of Illinois was assailed because of inequalities and discriminations so great as to amount to a deprivation of property and to a denial of the equal protection of the laws. The law in question had been upheld by the supreme court of the state in the case of Kochersperger v. Drake, 167 Ill. 122, 41 L. R. A. 446, 47 N. E. 321, hereinbefore referred to.
'The constitutionality of the [inheritance] taxes has been declared, and the principles upon which they are based explained, in United States v. Perkins, 163 U. S. 625, 41 L. ed. 287, 16 Sup. Ct. Rep. 1073; Strode v. Com. 52 Pa. 181; . . . Re Merriam, 141 N. Y. 479, 36 N. E. 505; . . . Minot v. Winthrop, 162 Mass. 113, 26 L. R. A. 259, 38 N. E. 512; . . . and in Scholey v. Rew, 23 Wall. 331, 23 L. ed. 99.
In closing our review of the Federal decisions the case of Wallace v. Myers, 38 Fed. Rep. 184, may be properly referred to, especially as it has been cited with approval by this court in United States v. Perkins, 163 U. S. 625, 629, 41 L. ed. 287, 288, 16 Sup. Ct. Rep. 1073.
The question involved was the very one we are now considering, namely, the validity of the inheritance tax law of the state of New York when applied to a legacy consisting of United States bonds. In his opinion Circuit Judge Wallace reviewed many of the state and Federal decisions heretofore referred to, and reached the concluson that the tax was to be regarded as imposed, not on the bonds, but upon the privilege of acquiring property by will or inheritance, and that where the property of the decedent included United States bonds, the tax may be assessed upon the basis of their value.
We think the conclusion fairly to be drawn from the state and Federal cases is that the right to take property by will or descent is derived from and regulated by municipal law; that, in assessing a tax upon such right or privilege, the state may lawfully measure or fix the amount of the tax by referring to the value of the property passing; and that the incidental fact that such property is composed, in whole or in part, of Federal securities, does not invalidate the tax or the law under which it is imposed.
Passing from the authorities, let us briefly consider some of the arguments advanced in the able and interesting brief filed in behalf of the plaintiff in error.
The propositions chiefly relied on are, first, that an inheritance tax, if assessed upon a legacy or interest composed of United States bonds, is within the very letter of the United States statute which declares that such bonds 'shall be exempt from taxation in any form by or under state, municipal, or local authority;' and, second, that the tax in question is unconstitutional, because impairing and burdening the borrowing power of the United States.
But if the first proposition is sound and decisive of the question in this case, then it must follow that the cases in which this court has held that, in assessing a tax upon corporate franchises, the amount of such a tax may be based upon the entire property or capital possessed by the corporation, even when composed in whole or in part of United States bonds, must be overruled. Plainly in those cases, as in this, there was taxation in a form, and in them, as in this, the amount of the tax was reached by including in the assessment United States bonds.
So that we return to the authorities, by which it has been established that a tax upon a corporate franchise, or upon the privilege of taking under the statutes of wills and of descents, is a tax, not upon United States bonds if they happen to compose a part of the capital of a corporation or a part of the property of a decedent, but upon rights and privileges created and regulated by the state.
The second proposition relied on, namely, that to permit taxation of the character we are considering would operate as a burden upon the borrowing power of the United States, cannot be so readily disposed of. Still, we think some observations can be made which will show that the mischief which it is claimed will follow if such statutes be sustained as valid is by no means so great or important as supposed.
And here, again, it is obvious that to affirm the second proposition will require an overruling of our previous cases. For, on principle, if a tax on inheritances, composed in whole or in part of Federal securities, would, by deterring individuals from investing therein, and, by thus lessening the demand for such securities, be regarded as therefore unlawful, it must likewise follow that, for the same reasons, a tax upon corporate franchises measured by the value of the corporation's property, composed in whole or in part of United States bonds, would also be unlawful.
To escape from this conclusion, it is contended, in the argument of the plaintiff in error, that, conceding that such taxes may be valid as imposed on corporate franchises, and permitting our decisions in such cases to stand, yet that the case of the estates of decedents is different; that individual persons will be driven to consider, when making their investments, whether they can rely on their legatees or heirs receiving United States bonds unimpaired by state action in the form of taxation; and that if it should be held by this court that such taxation is lawful, capital would not be invested in United States on terms as favorable as if we er e to hold otherwise.
This is only to state the proposition over again. For, if it were our duty to hold that taxation of inheritances, in the cases where United States bonds pass, is unlawful because it might injuriously affect the demand for such securities, it would equally be our duty to condemn all state laws which would deter those who form corporations from investing any portion of the corporate property in United States bonds.
In fact, the mischief, if it exists at all and is not merely fanciful, might be supposed to be much greater in the case of state laws taxing franchises than the case of taxing the estates of decedents. So small now is the income derivable from Federal securities that few individuals, and those only of great wealth, can afford to invest in them; and the demand for them is mostly confined to banking associations and to large trading and manufacturing companies which invest their surplus in securities that can be readily and quickly converted into cash. Moreover, no inconsiderable portion of the United States loans is taken and held, as everyone knows, in foreign countries, where doubtless it is subjected to municipal taxation.
While we cannot take judicial notice of the comparative portions of the government securities held by individuals, by corporations, and by foreigners, we still may be permitted to perceive that the mischief to our national credit, so feelingly deplored in the briefs, caused by state taxation upon estates of decedents, would be inappreciable, and too remote and uncertain to justify us now in condemning the tax system of the state of New York.
It is further contended that there is a vital difference between the individual and the corporation; that the individual exists and carries on his operations under natural power and of common right, while the corporation is an artificial being, created by the state and dependent upon the state for the continuance of its existence, and subject to regulations and to the imposition of burdens upon it by the state, not at all applicable to natural persons.
Without undertaking to go beyond what has already been decided by this court in Mager v. Grima, 8 How. 490, 12 L. ed. 1168; in Scholey v. Rew, 23 Wall. 331, 23 L. ed. 99, and in United States v. Perkins, 163 U. S. 625, 41 L. ed. 287, 16 Sup. Ct. Rep. 1073, and in the other cases heretofore cited, we may regard it as established that the relation of the individual citizen and resident to the state in such that his right, as the owner of property, to direct its descent by will, or by permitting its descent to be regulated by the statute, and his right, as legatee, devisee, or heir, to receive the property of his testator or ancestor, are rights derived from and regulated by the state, and we are unable to perceive any sound distinction that can be drawn between the power of the state in imposing taxes upon franchises of corporations, composed of individual persons, and in imposing taxes upon the right or privilege of individuals to avail themselves of the right to grant and to receive property under the statutes regulating the descent of the property of decedents. And, at all events, the mischief apprehended, of impairing the borrowing power of the government by state taxation, is the same whether that taxation be imposed upon corporate franchises or upon the privilege created and regulated by the statutes of inheritance.
Again, it is urged that the pecuniary amount of the state tax which is to be set aside is of no legal consequence; that any amount, however inconsiderable, is an interference with the constitutional rights of the United States, and must therefore be annulled by the judgment of this court. Of course, nobody would attempt to affirm that an unconstitutional tax could be sustained by claiming that, in a particular case, the tax was insignificant in amount.
But when the effort is made, as is the case here, to establish the unconstitutional character of a particular tax by claiming that its remote effect will be to impair the borrowing power of the government, courts, in overturning statutes long extablished and within the ordinary sphere of state legislation, ought to have something more substantial to act upon than mere conjecture. The injury ought to be obvious and appreciable. It may be opportune to mention that, even while we have been considering this case, the United States government has negotiated a public loan of large amount at a lower rate of interest than ever before known. From this it may be permissible to infer that the existence of legislation, whether state or Federal, including Federal securities as part of the mass of private property subject to inheritance taxes, has not practically injured or impaired the borrowing power of the government.
The contention of the plaintiff in error that taxation of the estates of decedents, in any form, and however slight, is invalid, if United States bonds are included in the appraisement, seems to be unreasonable. Suppose a decedent's estate consisted wholly of United States securities, could it reasonably be claimed that the charges and expenses of administration, imposed under the laws of the state, would not be payable out of the funds of the estate? If the estate were a small one, such expenses might require the application of all the Federal securities. If the estate were a large one, the expenses attendant upon administration would be proportionately large, to be raised out of the Federal securities. It is not sufficient to say that such expenses are in the nature of statutory debts, and that the question of the exemption of United States bonds cannot arise until after the debts of the estate shall have been paid. For, after all, what is an inheritance tax but a debt exacted by the state for protection afforded during the lifetime of the decedent? It is often impracticable to secure from living persons their fair share of contribution to maintain the administration of the state, and such laws seem intended to enable to secure payment from the estate of the citizen when his final account is settled with the state. Nor can it be readily supposed that such obligations can be evaded or defeated by the particular form in which the property of the decedent was invested.
Upon the whole, we think that the decision of the courts below was correct, and the judgment is therefore affirmed.

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Governor Tomblin recently signed into law S.B. 542 that amends several debt servicing and collection provisions of the West Virginia Consumer Credit and Protection Act (the “WVCCPA”). The amendments, which variously take effect in June (unless otherwise specified) and September (when specified, such as for the revised limitations periods), significantly affect how consumer claims against creditors and debt collectors will be litigated in West Virginia.
The initial proposed legislation amending West Virginia’s debt collection laws attempted to mirror significant portions of the Fair Debt Collection Practices Act, 16 U.S.C. § 1692 (the “FDCPA”). Typically, most creditors rely on the restrictions found in the FDCPA to develop their applicable policies and procedures as well as training programs to ensure compliance with debt collection laws. Those FDCPA-based policies normally would be sufficient for a creditor to collect debts lawfully in most states. Policies geared toward complying with the FDCPA, however, are not sufficient to ensure compliance with the WVCCPA, even with recent amendments.
In most respects, the FDCPA and the WVCCPA are remarkably similar. Both statutes contain prohibitions on harassment and abuse, prohibitions on deceptive or misleading representations, and prohibitions on certain unfair practices. Most notably, the WVCCPA and the FDCPA both contain prohibitions on contacting consumers represented by attorneys and contain similar remedy provisions.
Despite their similarities, there are unique differences which create substantial challenges for creditors attempting to collect a debt in West Virginia. For example, a creditor collecting its own debt is not deemed a debt collector under the FDCPA. Language was proposed that would have included the same exception under the WVCCPA, but that language did not survive. Due to that language not surviving, the WVCCPA still defines a creditor collecting its own debt, including a bank, as a debt collector. W. Va. Code § 46A-1-101.
Another significant difference is the definition and interpretation of the word “communication” as used in the two statutory schemes. West Virginia Code § 46A-2-128 provides that a debt collector is not permitted to communicate with a consumer who is represented by counsel. Specifically, that section states that “[n]o debt collector shall use unfair or unconscionable means to collect or attempt to collect any claim . . . the following conduct is deemed to violate this section: . . . (e) Any communication with a consumer whenever it appears that the consumer is represented by an attorney and the attorney’s name and address are known, or could be easily ascertained.” The FDCPA similarly prohibits communication with an attorney-represented debtor. See 15 U.S.C. § 1692c(a)(2).
The WVCCPA does not define “communication,” while the FDCPA defines “communication” as “the conveying of information regarding a debt directly or indirectly to any person through any medium.” 15 U.S.C. § 1692a(2) (emphasis added). Relying on the FDCPA’s definition, courts ruling on claims under that act consistently have concluded that leaving a message or merely attempting to call an attorney-represented debtor (as shown by the creditor’s call log) do not violate the FDCPA.
Unlike courts construing the FDCPA, state and federal courts in West Virginia construing the WVCCPA have rejected arguments that a “communication” has to be the actual conveyance of information in an effort to collect a debt. These courts have focused on the WVCCPA’s phrase “any communication” to find that causing an attorney-represented debtor’s phone to ring violates the WVCCPA.
The recent WVCCPA amendments provide additional guidance on the use of the word “communication” in that act. Now, “regular account statements” are excluded as a debt collection communication that could be deemed a violation. W. Va. Code § 46A-5-128(e) (2015). Similarly, required notices, such as foreclosure notices, no longer are prohibited communications. W. Va. Code § 46A-5-128(e) (2015). The West Virginia Legislature, however, did not address whether unanswered calls and certain loss mitigation communications could be deemed WVCCPA violations. To date, West Virginia courts typically have concluded those types of communications would violate W.Va. Code § 46A-2-128(e).
Another significant difference between the two acts is the potential exposure between the FDCPA and WVCCPA. Under the FDCPA, courts have universally held that the FDCPA remedies provision unambiguously limits damages to $1,000 per action. A similar provision limiting a debt collector’s exposure to $1,000 per action was introduced as an amendment to the WVCCPA, but the amendment did not survive to the enacted version of the bill. Instead, the Legislature amended the WVCCPA’s debt collection penalty to a flat $1,000 per violation. Previously, the per-violation penalty ranged from $100 to approximately $4,800. Now, causing a debtor’s phone to ring on ten separate occasions after notification of attorney representation exposes the creditor to $10,000 in penalties. Previously, the exposure would have ranged from $1,000 to $48,000.
In summary, while West Virginia’s debt collection laws moved closer to similar federal laws, distinct differences remain that create traps for unwary creditors and other debt collectors.
The business litigators of Steptoe & Johnson PLLC have extensive experience defending creditors and debt collectors in state and federal court under the WVCCPA, the FDCPA, the FCRA, the TCPA, and other consumer protection laws. Regardless of how the changes to WVCCPA damages affect plaintiffs’ pleading and litigation strategies, we are prepared to effectively defend those claims. Chris Arthur, chris.arthur@steptoe-johnson.com, 304-353-8189; Russell Jessee, russell.jessee@steptoe-johnson.com, 304-353-8103; John Meadows, john.meadows@steptoe-johnson.com, 304-353-8154; Ancil Ramey, ancil.ramey@steptoe-johnson.com, 304-526-8133; or Peter Raupp, peter.raupp@steptoe-johnson.com, 304-353-8125.


Before the Court at Docket 113 is Defendant Mikeylee Muna's First Amended Motion to Vacate or Set Aside Sentence. After the Court denied the Government's motion to stay,  the Government filed its opposition to the motion to vacate at Docket 117. Mr. Muna replied at Docket 123. Oral argument was not requested and was not necessary to the Court's determination of the motion.
On February 11, 2014, Mr. Muna was sentenced to 75 months of imprisonment following his guilty plea to two counts of Felon in Possession. The Court calculated a total offense level of 23 and a criminal history category of VI, which generated a Guideline range of 92 to 115 months. In the parties' plea agreement, the United States agreed to recommend a sentence at the low end of the Guideline range, with which the Court agreed. By agreement of the parties, the Court further reduced the sentence by 17 months for time sentenced by the state court for related conduct.
Mr. Muna's total base offense level had been enhanced, in part, because of a finding that Mr. Muna “committed  part of the instant offense subsequent to sustaining one felony conviction of  a crime of violence, ” pursuant to Sentencing Guidelines § 2K2.1(a)(4). The prior conviction at issue was Mr. Muna's 2012 conviction for assault in the third degree under Alaska Statute 11.41.220. In the parties' plea agreement, they agreed that Mr. Muna's 2012 conviction qualified as a crime of violence under § 2K2.1(2). Based on that agreement, at sentencing the Court did not determine whether the conviction came within the force or residual clause of the crime of violence definition provided by § 4B1.2(a)(1). Mr. Muna argues that the residual clause applies because “[AS § 11.41.220(a)(1)(A)] does not require the ‘use of force' [as the force clause requires] . . . and because the offense requires only a reckless mens rea [as the residual clause permits].” In its response, the Government does not address this issue. Therefore, the Court will assume that Mr. Muna's Guideline range depended on the validity of the residual clause as provided by § 4B1.2(a)(1).
In the current motion, Mr. Muna moves the Court to vacate or set aside his sentence. He asserts that, properly calculated, his total base offense level would be 17, generating a Guideline range of 51 to 63 months, less 17 months for the state sentence.He argues that this reduced Guideline range is warranted because his 2012 conviction cannot serve as a crime of violence predicate under the residual clause of § 4B1.2(a)(1) of the Guidelines following Johnson v. United States.
In Johnson, the Supreme Court held that the identically worded residual clause contained in the Armed Career Criminal Act (ACCA) was unconstitutional under the void-for-vagueness doctrine. Then in Welch, the Supreme Court determined that Johnson announced a new substantive rule of constitutional law because “Johnson changed the substantive reach of the [ACCA], altering ‘the range of conduct or the class of persons that the [Act] punishes.'” Accordingly, the Court held that Johnson would apply retroactively to ACCA cases on collateral review. Mr. Muna now argues that Johnson's reasoning extends to the Guidelines and creates a substantive rule of constitutional law that has retroactive effect and can be applied to his collateral challenge.
The Court will first consider whether Mr. Muna's claim is procedurally barred, and will then address whether Johnson's reasoning applies retroactively to Guideline cases on collateral review.
A prisoner in custody pursuant to a sentence imposed by a federal court, who claims the right to be released on the ground that the sentence was imposed in violated of the Constitution or laws of the United States may move the sentencing court to vacate, set aside or correct the sentence. A court may grant relief if it finds that the petitioner's sentence violates the Constitution or laws of the United States.
The Government asserts that the collateral attack waiver in Mr. Muna's plea agreement bars the current motion. But a collateral-attack waiver does not apply “if the sentence violates the law.” Accordingly, if the Court finds that Mr. Muna's sentence violates the law, the waiver does not preclude Mr. Muna from collaterally attacking his sentence.
The Government does not contest that Mr. Muna sustained “actual prejudice.” Moreover, the Supreme Court has held that a sentence imposed pursuant to an incorrect Guideline range is typically sufficient to show a reasonable probability that the defendant sustained actual prejudice. Because the Government concedes that Johnson's reasoning extends to the Guidelines and because Mr. Muna's sentence was predicated on an incorrect Guidelines range, the Court finds that prejudice has been established in Mr. Muna's case.
As for cause, that Mr. Muna did not challenge the constitutionality of the Guidelines' residual clause at sentencing or on direct appeal is not dispositive. The default is excusable if the legal basis of the constitutional challenge was not reasonably available at the time. A claim would not be “reasonably available to counsel” if it is based on a Supreme Court “decision that explicitly overrule[d] one of [its] precedents.”Mr. Muna's default is thus excusable as Johnson “explicitly overruled” the holdings in Skyes v. United States and James v. United States. Accordingly, the Court finds that Mr. Muna's § 2255 motion is not procedurally barred.
A § 2255 motion is timely if filed within one year of “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” Here, Johnson was decided on June 26, 2015 and Mr. Muna filed his motion on April 18, 2016,  rendering his motion timely only if Johnson's rationale applies retroactively to the Guidelines.


The respondents were represented by Richard Bartlett, Esq., McGann, Bartlett, & Brown, 281 Hartford Turnpike, Vernon, CT 06066.
This Petition for Review from the March 14, 2000 Finding and Dismissal of the Commissioner acting for the Sixth District was heard December 1, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Robin L. Wilson and Leonard S. Paoletta.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has filed a timely petition for review from the March 14, 2000 Finding and Dismissal of the Commissioner acting for the Sixth District. The claimant has failed to file a motion to correct, reasons of appeal, or a brief.
Accordingly, we dismiss the claimant’s appeal for failure to prosecute with proper diligence pursuant to Practice Book § 85-1. See Thomas v. Cash Oil, 15 Conn. Workers’ Comp. Rev. Op. 410, 2272 CRB-3-95-1 (Aug. 28, 1996); Divita v. Thames Valley Steel, 12 Conn. Workers’ Comp. Rev. Op. 50, 1541 CRB-2-92-10 (Jan. 26, 1994); Milardo v. Shuck Petroleum, 11 Conn. Workers’ Comp. Rev. Op. 279, 1559 CRB-8-92-11 (Nov. 22, 1993).
Even if we were to consider the merits of the claimant’s appeal, we would necessarily affirm the trial commissioner’s decision. This is because, based upon the claimant’s presentation at oral argument before this board, the claimant is attempting to retry the facts of this case, which this board may not do. Specifically, the trial commissioner found that the claimant did not meet his burden of proof that he sustained an injury while at work on August 14, 1998. The trial commissioner considered the claimant’s testimony that on that date his supervisor grabbed him violently. The trial commissioner did not find the claimant’s testimony to be credible. In a workers’ compensation case, issues of credibility are the sole province of the trial commissioner. Kish v. Nursing Home & Care, Inc., 47 Conn. App. 620, 627 (1998). This board may not reverse decisions regarding the credibility of witnesses on review, and may not enter its own findings in place of those of the trial commissioner. Id.; Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995).


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Despite ongoing attention given to pathogens within the class Epsilonproteobacteria, environmental members are still among the most poorly characterized bacteria. We discovered novel Epsilonproteobacteria all over the world in hostile, sulfur-rich environments, including caves and deep-sea hydrothermal vents. In 2006, we proposed the classification of the family Thiovulgaceae fam. nov. for a large group of terrestrial and marine, environmentally-retrieved sequences (Campbell et al. 2006). However, most of the lineages from terrestrial settings are without cultured representatives and are underrepresented compared to marine-affiliated lineages. There are also unresolved evolutionary relationships between lineages found in cold and hot habtiats, and between lineages found from freshwater versus saline habitats.
Our long-term goal for this project has been to identify and resolve the taxonomic patterns of environmentally-derived Epsilonproteobacteria, and specifically those from terrestrial groundwater systems, so that we can better understand their ecological and geological significance in modern settings. The importance of Epsilonproteobacteria to carbon, nitrogen and sulfur cycling, is just beginning to be appreciated, and our research addresses questions regarding species diversity and microbial interactions with the environment.
Onging and future research focuses on what can be learned about metabolism and mutagenicity from Epsilonproteobacteria living in low-temperature, terrestrial habitats. Certainly, some of the poor evolutionary resolution between the marine and terrestrial lineages at present is because most newly identified lineages within this class are without cultured representatives and have only been described from 16S rRNA-based phylogenetic studies.
Headd, B., Engel, A.S. (2014) Congruency among bacterial communities from terrestrial sulfidic springs. Frontiers in Microbiology. DOI: 10.3389/fmicb.2014.00473.
Headd, B., Engel, A.S. (2013) Evidence for niche partitioning revealed by the distribution of sulfur oxidation genes collected from areas of a terrestrial sulfidic spring with differing geochemical conditions. Applied and Environmental Microbiology. 79: 1171-1182. DOI:10.1128/AEM.02812-12.
Birdwell, J.E., Engel, A.S. (2010) Characterization of dissolved organic matter in cave and spring waters using UV-Vis absorbance and fluorescence spectroscopies. Organic Geochemistry, v. 41, p. 270-280.
Engel, A.S., 2010, Microbial diversity of cave ecosystems, in Barton, L.L., Mandl, M., and Loy, A. (eds.), Geomicrobiology: Molecular and Environmental Perspective: Springer. DOI:10.1007/978-90-481-9204-5_10.
Engel, A.S., Meisinger, D.B. Porter, M.L., Payn, R., Schmid, M., Stern, L.A., Schleifer, K.-H., Lee, N.M. (2010) Linking phylogenetic and functional diversity to nutrient spiraling in microbial mats from Lower Kane Cave (USA). The ISME Journal, v. 4, p. 98–110; doi:10.1038/ismej.2009.91; published online 13 August 2009.
Porter, M.L., Engel, A.S., Kane, T.C., and Kinkle, B.K. (2009) Productivity-diversity relationships from chemolithoautotrophically based sulfidic karst systems. International Journal of Speleology 38, 27-40.
Birdwell, J. and Engel, A.S. (2009) Variability in terrestrial and microbial contributions to dissolved organic matter fluorescence in the Edwards Aquifer, Central Texas. Journal of Cave and Karst Studies. v. 71, p. 144-156.
Porter, M.L., and Engel, A.S. (2008) Balancing the conservation needs of sulphidic caves and karst with tourism, economic development, and scientific study: Cave and Karst Science. 35:19-24.
Engel, A.S. (2007) On the biodiversity of sulfidic karst habitats. Journal of Cave and Karst Studies, v. 69, p. 187-206.
Campbell, B.J., Engel, A.S., Porter, M.L., and Takai, K. (2006) The versatile Epsilonproteobacteria: Key players in sulphidic habitats. Nature Reviews Microbiology, v. 4, p. 458-468.
Brannen, K.M., Engel, A.S., Birdwell, J.E., 2010, Creating humic matter indices for the interpretation of ecosystem energetics, in International Training Workshop on Organic Matter Characterization Using Spectroscopic Techniques May 19-21, 2010 - Granada, Spain, p. 1-2 (poster abstracts) http://spectroscopyworkshop.weebly.com/poster-info.html.
Donnelly, B.M., Huber, K.G., Brannen, K.M., Bergeron, P.G., Mulec, J., Rossmassler, K., Campbell, B.J., Engel, A.S., 2008, Karst field school and research experience: undergraduate involvement in the 16th International Karstological School and geomicrobiology research in Slovenia. Geological Society of America Abstracts with Programs: 40, 368.
Engel, A.S., Porter, M.L., and Campbell, B.J., 2007, Karst as a model system to examine terrestrial microbial biogeography patterns through time: An example from the Epsilonproteobacteria [abstract for Time in Karst meeting, Postojna, Slovenia]. Acta Carsologica, v. 36, p. 212-213.
Headd, B., Campbell, B.J., Engel, A.S., 2010, Differentiating among the dominant and rare microbial groups from sulfidic terrestrial springs, The 13th International Symposium on Microbial Ecology, Seattle, WA.
Mulec, J., Engel, A.S., Oarga, A., Rossmassler, K., Campbell, B.J., and Sebela, S., 2009a, Microbial diversity from the sulphidic karst spring, Žveplenica-Dolenja Trebuša, Slovenia, in White, W.B. (ed.), Proceedings vol. 1, Symposia part 1, 15th International Congress of Speleology, p. 399.
Mulec, J., Engel, A.S., Walochnik, J., Oarga, A., Kosi, G., and Klemenčič, A.K., 2009b, Microbial life along environmental gradients in karst habitats. Sulfidic Karst Ecosystems conference, Genga, Italy, Sept 11-14.
Porter, M.L, and Engel, A.S. (2009) Energy flow and productivity-diversity relationships in chemolithoautotrophically-based ecosystems, in White, W.B. (ed.), Proceedings vol. 1, symposia part 1, 15th International Congress of Speleology, p. 404-405.
Rossmassler, K., Engel, A.S., Campbell, B.J., (2008a) Biogeography and phylogeny of Epsilonproteobacteria in sulfidic environments, in Kato, K., and Kimura, H., 7th International Symposium for Subsurface Microbiology, Shizuoka, Japan, p. 229.
Rossmassler, K., Engel, A., and Campbell, B. (2008b) Epsilonproteobacteria and microbial communities in cave environments. In JAMSTEC. Tokyo, Japan.
Rossmassler, K., Engel, A.S., Campbell, B.J. (2009) 23S rRNA phylogenies and whole genome amplification reveal increased diversity among Epsilonproteobacteria from sulfidic caves and springs. American Society for Microbiology 109th General Meeting, Philadelphia, PA; pp. 359-360. American Society for Microbiology: Washington, DC; Abstract N-125.
Rossmassler, K., Engel, A. S., Hanson, T., and Campbell, B. (2010). Biogeography of Epsilonproteobacteria in sulfidic caves and springs based on the 23S rRNA gene. 21st Annual Saint Joseph's University Sigma Xi Student Research Symposium, Philadelphia, PA.
Rossmassler, K., Engel, A. S., Hanson, T., and Campbell, B. (2010). Biogeography of Epsilonproteobacteria in sulfidic caves and springs based on the 23S rRNA gene. The 13th International Symposium on Microbial Ecology, Seattle, WA.

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The claimant was represented by Janine Becker, Esq., Willinger, Shepro, Tower & Bucci, P.C., 855 Main Street, Bridgeport, CT 06604.
The respondents were represented by Richard Aiken, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.
JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the June 2, 1997 Finding and Award of the Commissioner acting for the Fourth District. They argue on appeal that the trial commissioner erred by authorizing the claimant to obtain a binding opinion from her treating physician regarding the necessity of surgery on her back and its relation to her 1987 compensable injury. We affirm the trial commissioner’s decision.
The respondents argue on appeal that the trial commissioner erred because she failed to make findings regarding the role that subsequent injuries suffered by the claimant played in her need for back surgery. They also contend that the claimant’s credibility was brought into question, but that the trier failed to make findings in that regard as well. It is well-settled that issues of credibility concerning lay witnesses, medical reports, and expert testimony are all within the discretion of the trial commissioner. Kish v. Nursing Home & Care, Inc., 47 Conn. App. 620, 627 (1998); Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (decided Jan. 24, 1997); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). This board cannot find on review that the trial commissioner should have given greater weight or interpreted differently the reports of Dr. Patria, Dr. Katz, or Dr. Sella that were introduced into evidence by the respondents. We also cannot draw our own inferences from any inconsistencies in the claimant’s testimony that the respondents have highlighted in their brief. All we can do is look at the record to decide whether the commissioner’s conclusions were supported by her findings, and whether those findings had substantial roots in the evidence. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Webb, supra.
Given the apparent brevity of the claimant’s 1996 visit to Dr. Lipow as discussed in his report, and the fact that six months had passed between the formal hearing and the time Dr. Lipow wrote his note, we can understand why the trial commissioner did not want to order surgery for the claimant right away. At the same time, she was clearly not persuaded by the respondents’ evidence that the claimant’s condition was unrelated to her 1987 injury. As § 31-298 directs the trial commissioner to “make inquiry . . . in a manner that is best calculated to ascertain the substantial rights of the parties and carry out the provisions and intent of [the Workers’ Compensation Act],” we do not think it was incumbent upon the commissioner to make a decision here without first ordering one more examination by Dr. Lipow. The stipulation provides that the respondents will be liable if the claimant undergoes a lumbar surgery at the behest of Dr. Lipow, the authorized treating physician. The commissioner’s order authorizes the claimant to see Dr. Lipow again and to undergo the surgery if he thinks it is appropriate and related to the 1987 injury. That order substantially reflects what the parties agreed to in their settlement, and we do not believe the commissioner erred by failing to either authorize or deny the claimant’s request for surgery at the time she issued her Finding and Award.
DONALD H. DOYLE, JR., CONCURRING IN PART AND DISSENTING IN PART. Although I would not characterize the trial commissioner’s request for another examination by Dr. Lipow as error, I believe that the appropriate procedure in this case is to remand for further findings based on the results of his examination. As the majority notes, the trial commissioner is not required to make a decision based on insufficient evidence. The best way to satisfy the mandate of § 31-298 is for the commissioner to gather all of the necessary evidence and make her decision at that time. The trier’s order as it is currently worded will not give her the opportunity to review the results of Dr. Lipow’s examination. As the fact-finder, it is both the prerogative and the duty of the trial commissioner to pass upon the credibility of all of the relevant evidence. Thus, I would remand this matter to the Fourth District so that a commissioner could review the results of Dr. Lipow’s examination, once it is performed.