Evening star. [volume] (Washington, D.C.) 1854-1972, 1894-02-08
PRESIDENT AND JUDGES
They Are Exempt From the Operations OF
the Income Tax

Opinions on the Subject by Chief
Justice fancy and Attorney
General Hoar.
One clause of the federal Constitution
provides that the compensation OF the
justices of the United States Supreme
Court shall not be diminished during their
terms of Office. The Constitution also de-
clares that the Presidents compensation
shall not be increased or diminished during
his term. In view Of these constitutional
provisions an inquiry has arisen as to the
power of Congress to make an income tax
applicable to these high officers of the gov
eminent. The inquiry into this question
has developed some interesting Information.
the tenor Of which is that the President
and the judiciary would be exempt from
paying the tax. February 16. 1868. Chief
Justice fancy of the Supreme Court wrote
a carefully prepared letter to Secretary
Chase relative to the income war tax
This letter is on file among the letters OF
the clerks office Of the Supreme Court
The Chief Justice called attention TO the
clause Of the Constitution referred TO ana
said OF the income TAX.
THE act in question, as you interpret ~
diminishes the compensation Of every Judge
per cent, and II it can be diminished 70
that extent by the name OF a tax II may IN
the same way be reduced from time 70
time at the pleasure of the legislature The
judiciary Is one of the three great depart
ments of the government created ana es-
tablished by the Constitution. It's duties
and powers are specifically set forth. ana
are of a character that requires 1t 10 be
perfectly Independent Of the two other
departments. In order to place II pcyoho
the reach and above even the suspicion OF
any influence the power to reduce tbeH
compensation is expressly withheld from
Congress and excepted from their powers
Of legislation.
Upon these grounds regard an act CT
Congress retaining in the treasury q por-
ton of the compensation of the judges as
unconstitutional and void and should not
have troubled you with this letter II there
was any mode by which the question could
be decided in a judicial proceeding. But all
Of the judges of the courts OF the Cnited
States have an interest In the question ana
could not, therefore. undertake TO DECIDE
it,"
81 am however not willing to leave 1t
to be inferred from my silence that ad-
nit the right Of the legislature to diminish
in this or any other mode the compensation
of the judges when once nxed by law, ana
my silence would naturally, perhaps neces-
sarily, be looked upon as acquiescence on
my part In the power claimed ana exercised
under the act Of Congress. and would be
regarded as a precedent. establishing the
principle that the legislature may, at It's
pleasure, regulate the salaries OF the judges
Of the courts of the United States and may
reduce their compensation whenever Con-
gress may think proper"
Refunded to the Judiciary.
Chief Justice Taney's letter seems to have
had its effect, for after the var. when Hon.
William A. Richardson. now chief justice OF
the Court of Claims. was the Secretary Of
the Treasury, there was refunded the mon
ey which had been withheld from the sal
aries Of the judiciary under the income tax
act
The same question was passed upon by
1869. in response to an inquiry from Secre-
tary Boutwell, of the Treasury, whether
the law is constitutional which imposes a
tax upon the salary of the President of the
United States and upon the judges OF the
Supreme Court"
The Attorney General wrote In effect that
tax upon the salary Of an officer, to be
deducted from what would otherwise be
payable as his salary. is diminution of hts
compensation, and, In the case of the Pres
and inferior courts of the United States, the
diminution would fall within the prohibi-
ton of the Constitution II the act levying
the tax was enacted during the official
term Of the officers effected by It. When
Congress imposes a tax upon the salaries of
all civil officers, the language, although
general. must necessarily be construed to
mean all civil officers except those whom
Congress has not the constitutional power
to subject to such a tax.
Referring to the salaries of a President or
judges, whose terms of office began after
the tax law passed. Attorney General Hoar
wrote that there would be no constitutional
difficulty in the application of a previously
existing law, but said he was of the opin-
tan fhaA hte ~
rule of construction. since statutes impos-
ing salaries are In their nature temporary.
As Applied to the President.
IF the income tax law was supposed to
apply to the President" said Attorney Cen
eral Hoar, the singular result would fol-
low that. as the Constitution prohibits the
increase as we'll as the diminution of his
salary during his term Of office. IL the time
when his official term commenced his sal
airy was subject to a deduction in the ma
ture of tax. IL would not be competent for
Congress during his term of office by any
repeal or diminution of the tax, to increase
the amount paid to him. So, If the law
imposing an income tax were repealed, the
President alone of all the citizens Of the
country would continue liable for it's pay
ment during the term for which 1t had been
originally imposed, If his official term so
long continued. And. in the case Of the
JuuSeS, as the amount OF the income tax
laid upon salary should be varied from
time to time. one judge might be liable only
to the amount of part Of the income tax
which the law imposed on salaries general
ly, and different members of the same
court would be receiving different rates of
compensation"
Opportunity was given for the Supreme
Court to pass upon similar question De-
cember. 1870. A collector assessed SOL so on
the salary of Judge ]. NJ. Day of the pro-
bate and insolvency court Of Barnstable
county, Mass The Judge resisted, and the
case was finally carried to the Supreme
Court, where Justice Nelson delivered an
opinion, declaring the levy unconstitutional
a decision from which Justice Bradley dis
scented. Justice Nelson quoted, in his opin-
ion, authorities to the effect that an official
was an instrument Of the government and
his salary could no more be taxed than
could the United States mail, the government
minis or any instrument Of the government