Evening star. [volume] (Washington, D.C.) 1854-1972, 1895-04-18
What Might Result From the Pro-
posed Rehearing.
THE WHOLE Law MIGHT Be ANNULLED
No Probability Of a Hearing Before
October.
JUSTICE JACKSON'S CASE

Attorney General of the United States in
the income tax case which was filed yes
terday which will be certain to attract the
general attention of the bar of the coun-
try. Mr.. Olney distinctly asks the Suprem-
Court to reopen the whole case, If re-
hearing shall be granted, and not to order
a rehearing as to those points only respect
ing which the court was divided. If cur
rent reports are true, the justices, by
vote of five in the affirmative to three IN
the negative, declared that certain pro-
visions of the law are unconstitutional.
That vote constitutes a majority OF the
court, even with a full bench. To ask
the Supreme Court to hear arguments
again upon the points which have been
declared to be unconstitutional by ma
jority of the full bench Is to suggest to
the court that 1t shall decide that its de-
cision just rendered might be reversed
upon rehearing. In other words, the
brief of the Attorney General involves the
possibility of a reversal by the court as to
certain points of the decision which has
just been rendered. Such a request pro-
ceeds upon the assumption that the Su-
pIeme Court may reverse decision which
1t has just made or abandon the doctrine of
stare decisis. Unless some of the most
eminent lawyers connected with the case
are deceived 1t is due solely to the fact
that two at least Of the justices adhered
to the ancient legal dogma of stare decisis
as an essential DulWark OF jurisprudence,
and as necessary to the safety of the re-
public, that the income tax law as whole
was not declared unconst tutional by a
vote Of at least six of the eight judges.
Might Declare 1t All Unc0nstitutiOnal.
If that belief is well founded. and If the
justices, for any reason, shall deem It ex-
pedient to surrender the views which they
are said. in part, at least, to maintain as to
the principle of stare decisis, the extra
ordinary result might follow the reopening
of the whole case, as requested by the At
torney General, that the Supreme Court
may yet declare the entire law unconsti-
tutional and reconsider the decision by
which the decision of the lower court must
stand only because the appellate tribunal
could not agree that the law Is constitu-
tional. Certainly, the lawyers say, If the
Supreme Court may reverse its decision a
week old, what would prevent it from dis
| regarding precedent of a former decision
thirty years old, rendered by a court of
whose members only one survives. under
conditions of civil war? If the dogma of
stare decisis is to be disregarded SO that
decision just rendered may be overturned
why should that doctrine be maintained as
to the old income tax decisions? And If
that dogma is to be disregarded and two
of the four justices who refused to vote
that the income tax law was unconstitu-
tional, and who did vote that 1t was consti-
tutional, did so merely because the Su-
preme Court twenty-five years ago so
on such conditions, may it not be expected
that the court will decide that the income
tax law is unconstitutional, whatever may
be the opinion of the absent justice. and in
spite of his opinion, If he should maintain
the constitutionality of the law?
These are interesting questions which the
lawyers are talking about Granted that
the current gossip as to the actual views
of two of the justices who voted that the
law is constitutional, when. in fact, they
consider it unconstitutional, is correct, it
will be seen that decision to reopen the
whole case might be attended by curious
results.
Not Before October.
There is no probability that there will be
rehearing upon the income tax case be-
fore the October term, If at all. The letter
from Justice Jackson, which has recently
| been received in this city, in which he
states that he cannot be present before the
October term, settles the fact that there
will not be full bench until that time,
and without full bench there would be no
reason for granting a rehearing, especially
on the basis of the petition of the Attorney
| General today. The letter of Justice Jack
son would seem also to have settled an
| other fact-namely. that he does not intend
| to resign.
One hears many threats as to what the
| internal revenue bureau intends TO do as to
| persons who have failed to make returns.
| this case say that these threats may be
| disregarded. They maintain that no PEN
atty can be enforced for failing to make re-
turns: that an examination of books and
papers cannot be permitted, and that no
other person than the collector himself can
make demand for a statement of the tax.
| In other words, If persons have not made
returns voluntarily, 1t is maintained that it
| is not in the power of the government, un-
| less the law shall be amended, to enforce
| the making of any returns.