The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1891-09-29
is THE TAX BOARD A COURT?
Question Upon Which the Bankers Case
for Contempt Will Hinge.
Their Attorneys Claim that 1t Is Administra-
tive and Cannot Have Judicial Power
Constitutional Rights.

Superior Court room 70. j, under the title
of Philip G. Decker versus Henry w. Lam
genberg, being a petition for writ of
habeas corpus. Mr.. Decker, president of
the German Bank of Evansville, was
charged with contempt of the State Board
OF Tax Commissioners for refusing to fur
nish list of the depositors of his bank, to-
gether with their balances on April /, 1891.
Mr.. Decker was fined $500. with a nominal
commitment to the Jail of Marion county
until the fine is paid. Attorney general
Smith estimates that if the banks can be
compelled to make the showing demanded
by the Tax Commissioners more than
500, Zoo, 900 will be added to this years tax
duplicate.
The case came up yesterday morning at
10 O'clock. and is q test one for all the
banks in the State. The banks are repre-
sented by Addison c. Harris and w. A.
Ketcham, of this city, and the Stuart
Brothers, of Lafayette. anu Attorney-gen-
eneral Smith appears for the defense. repre-
senting the State Tax Commissioners.
The argument for the plaintiff was opened
by Arthur V. Stuart, of Lafayette. Mr..
Stuart recited the framing of the new tax
law and the proceedings before the State
Board of Tax Commissioners. He stated
that the proceedings did not record any
specific charge against any bank, but that
the board had started out on general hsh-
ing expedition. He doubted whether there
was any board present when the bank
order was made, as the Governor and Tax
Commissioner Gwin were absent at that
time. He held that the tax board has no
original jurisdiction except in the matter
of railroads and the equalization of assess.
charge has been or On appeal
taken; that the power to punish for
contempt is q judicial power given only to
courts; that if the act clothes the board
with the power of the court iJ is void, be-
cause there is no reference to such power IN
the title; that if the board can punish for
contempt, it can only do go in written
summons to answer in a charge OF suit
contravention of the Constitution. which
provides that citizens shall be afforded pro-
lection. and that search and seizure shall
not be made.
UsURPATIoN OF JUDICIAL POWER.
Mr.. Stuart held that the tax board be-
longed to the administrative branch of the
government and was without judiciary
power, and the punishment for contempt
was an act of judicial power.
Mr.. Harris followed Mr.. Stuart. He said
that when the constitutional convention
framed and submitted the national Con-
stitution to the people of the States many
at that time were greatly disappointed
that it did not contain a bill of rights Sc
curing to all American citizens the Drinci-
Piles OF liberty essential to republican gov
eminent and such as were provided for by
the new constitutions which had been
adopted by many of the States since the
declaration of indepeEdence-Hamilt
Madison and other statesmen of the times
advocating the adoption of the new Con-
assured the people if they would adopt it
these fundamental principles OF liberty
would be inserted by way of amendment
into the Constitution.
Virginia and some of the other States
adopted the Constitution as presented.
with proviso that certain fundamental
principles of liberty should be put into the
Constitution by amendment, and, if not.
that their ratification should be without
effect.
In pursuance of these promises the first
Congress of the United States that met I'M
der the new Constitution presented to the
States twelve amendments, eleven of which
embodied the fundamental principles of
liberty which were deemed essential to re-
publican government. In the fourth
amendment it was provided ''the right of
the people to be secure In their persons,
houses. papers and effects against unreason-
able searches and seizures shall not be vio-
lated" In the fifth amendment, among
other provisions. is found: mo person shall
be deprived of life liberty or property with
out duo process of law"
At the close of the war of the rebellion
the public mind was aroused upon the
rights of American citizenship. and deter
mined to further amend the Constitution
SO as to further secure these fundamental
rights of liberty which were in American
citizenship. Among other things it is pro-
vided in the fourteenth amendment that
mo State shall make or enforce any law
which shall ebridge the privileges OF i'm
munities of citizens of the United States:
nor shall any State deprive any person of
life. liberty or property without due process
fourteenth amendment because the former
amendments were only limitations upon
federal power, and it was thought neces-
sary to thus secure TO each citizen In every
State these essential rights of American
Almost every State Constitution Is pre-.
coded by bill of rights. The Constitution
of this State enumerates in q bill of rights
thirty seven fundamental principles, the
eleventh of which is 1.-The right of the peo-
pie to be secure in their persons. houses,
papers and effects against unreasonable
search or seizure. shall not be violated"
1t is thus seen that this provision is CON-
mon to both the federal and State constl-
buttons
UNREASONABLE SEARCH AND SEIZURE.
What did the trainers of the federal Con-
stitution understand by unreasonable
search and seizuref ME-. Cooley. in his
book on Constitutional Limitations"
quotes at length from "May's Constitu-
tional History of England" the struggle
between John Wilkes and the crown.
which lasted four years and ended in 1866.
John Wilkes published q newspaper called
the North Brlton. In this paper he criti-
cised freely the party in power and
-etary of State, under the English
statute iseued a general warrant authoriz-
ing the constables to search his house and
seize his books and papers for the purpose
of getting evidence to prove him guilty of
sedition. He brought suit against Lord
Halifax and the officers. An English jury
gave Wilkes $4,000 damages. which was
affirmed by the court. About the same
time the crown officers in Boston were
issuing writs of assistance. authorizing
revenue officers to search the warehouses
and cellars of Boston merchants to see
whether they were receiving goods upon
which duties had mot been paid. a pub
lie meeting was held in Boston, which was
addressed by James Otis in which he said
that If the government could issue general
writs of search and seizure without any
affidavit or other authority than the mere
act of the officer issuing the writ, then
every man held his property and his liberty
at the mercy OF petty tyrants.
Having these historical matters in mind
the question arose for the first time in 1886
In the Supreme Court of the United States
as to what was an unreasonable search and
seiZue OF books and papers. An act of
Congress in relation TO the collection of
customs provided that the United States