Evening star., 1895-01-15
THE INCOME TAX SUIT
Assistant Attorney General Whitney Argues
Against an Injunction.
Reasons Why the Complainant Should
Not BE Granted the Restrain
ing Order He Seeks.


morning took up the case of John G. Moore
of New York against the commissioner Of
| internal revenue. This is the case in
which the complainant seeks, by injunc-
ton, to restrain the commissioner from
proceeding in the collection of the income
tax. The case was argued briefly by As
sistant Attorney General Edward B. Whit
ney in opposition, Mr.. Jere NJ. Wilson rep
resenting Mr.. Moore Ex-senator George
F. Edmunds also of counsel for Mr. Moore
was prevented by illness from appearing.
Mr.. Wilson had spoken but a few mo-
| ments when the hearing was adjourned
until 10 o'clock tomorrow morning, to
enable Mr.. Whitney to keep an engagement
elsewhere.
Referring to the bill of complainant, filed
by Mr.. Moore, Mr.. Whitney explained that
the complainant alleged therein that he
possesses an income exceeding $1,000 year,
| including certain dividends from several
corporations, and that the commissioner
threatens to assess him per cent on tie
same, the corporations also being threat
ened, not only upon the first years income,
but upon yearly incomes until 1900. The
complainant also complained, said Mr..
Whitney, that the tax was in that way
duplicated; that the tax is unconstitutional,
and that he would be without remedy at
law If such tax should be allowed to be col
lected. To the bill of complaint, said Mr..
Whitney, the commissioner had Gemurred.
Remed! by Injunction Denied.
| Some of the matters alleged in the bill,
said MI. Whitney, were mere conclusions
| of law, and the first question naturally
| arising was, Has the complainant any rem
| edy by injunction? He would say that he
| has not for while it is well settled that
when a plain official duty, requiring no eX-
| erCise of discretion, is to be performed, and
performance is refused, mandamuS will lie,
| and some such positive act Will cause per-
| sonal injury, injunction may be had, never
| theless such principle has never been ap-
piled to federal acts claimed to be uncon-
stitutional. 1t Was a fact, said Mr.. Whit
| ney, that in the. only injunction granted
| against a federal executive officer (Nobie
| VS.. Union River Logging r. r. Co., l4l
u. S., 1861, and approved by the United
| States Supreme Court, no argument was
| made against the right to enjon. Then,
| too, the officer without any color OF
! statutory authority. The present case,
argued Mr.. Whitney, was quite different,
| the commissioners acts being Tar from
ministerial
Another reason why an injunction couih
not be granted in the present case, explain
| ed Mr.. Whitney, was that the 'compialnant
sufficient funds to pay the tax, and could,
| therefore, pay it under protest, and then
| appeal to the commissioner, after which ne
could sue for its recovery. No ground OF
| equitable jurisdiction has been shown said
| Mr. Whitney, and there was no reason TO
! assume that the government will take un-
necessary steps to harass the complainant.
AS Congress might repeal or modify the
tax at any time, there was no just ground
| for the statement that the complainant
| would be subjected to a multiplicity of
actions
Those cases. said Mr.. Whitney, where
| injunctions have been granted were all
cases of illegal taxation by state legisla-
| lures. The act of March 2, 1867. provided
the assessment or collection of any tax
shall be maintained in any court 1t was
thus seen, said Mr.. Whitney, that there
is no remedy by injunction against the
collection of federal taxation; and 1t is not
unconstitutional to take away one remedy
when another is left, even though the
remedy removed may be more convenient
than the one remaining.
Not a Direct Tax.
Mr.. Whitney denied that the income tax
| Is a direct tax, within the meaning of the
Constitution, and one required to be ap-
| porticned among the states, and then he
devoted the rest of his argument to show
ing that the tax is fair and Just one, ana
! its propriety unquestionable. The first IN.
come taxes he said, were the product OF
| the late war, and the Supreme Court mad
decided unanimously that they were not
| cirect, but were duty or excise. Assum-
in, the income tax to be such, 1t Is clearly
| uniform. The objection that 1t WORKS dou-
| BILE taxation, said Mr.. Whitney, was no
| legal or constitutional one, the power to
| tax once While those enjoying an annual
income less than $4,000 were exempted, eX-
emption from taxation has never been held
| to violate the rule of uniformity In taxa
| ton.
In conclusion Mr.. Whitney contended
| that the tax is not only proper one, but
| also valid one.
MI. Wilson'S Reply.
Tn reply Mr. Wilson referred to the OBJ
| iectionable and popularly opposed features
| of the income tax, because of its inquisi-
| torial character. If the tax was once col
lected, he said, the complainant would be
| clearly without further remedy except by
| an appeal to Congress. and everybody knew
what that would result in: The act OF
| March 2, 1867, said Mr.. Wilson, was in
valid, and had no effect now; for that act
| shut the doors of the courts in the face or
| the citizen endeavoring to alleviate his
grievances The right of the citizen to ap-
| pear in court for redress of their wrongs
| was a reserved right, and one which Con-
press could never take from him.
Mr.. Wilson will resume his argument TO-
| morrow morning, and ex-senator Edmunds
| may also address the court.