The herald., 1895-05-21
The Dissenting Opinions

The chief justice concluded the reading
OF his speech at Il 52 o'clock its delivery
having consumed fifty minutes. He was
Immediately followed by Justice Harlan
in a dissenting opinion.
Justice Harlan said that at the former
hearing it had been adiudged that tax
on rents was direct tax and must be APP
portioned among the states. He had dis
sented from that view concurring in the
able opinion of Justice White, to which
he thought nothing could be added. He
wanted, however, to add an additional
authority, the opinion of Justice Strong.
in the case of Clark VS.. Sickle, which lie
quoted at some length.
lie said this decision was significant
and meant that virtually all incomes
should be taxed. Mr.. Harlan said he
would later file an opinion giving his
views in detail and his views as now
printed would be of a general character.
Capitalization taxes and taxes on land,
he contended, should be considered as di
rect, and they had been uniformly held
to be. He quoted from the views of JUS
tices Iredell, Patterson and others on the
question of the constitutional provision
as to apportionment, holding that the
rule had been consulted only when it
could be reasonably applied. The change
contemplated from the former practice
in this matter, Justice Harlan said, was
little less than revelation. Every one
would have been the same as they were
if there had been no reference in the con-
sttution to direct taxes. lie held the tax
on rents to be q duty or something en-
tirely different from tax on land from
which rent was collected. He com batred
the idea that rents were device of lands
in view of the fact that the present law
was to continue in operation for only
five years. A tax on land is generally a
lien on land while that on rents is not.
In its essence tax on rents is a tax on
money, and the tax is payable in money.
lie said the present decision was step
in advance of its former decision and
said incidentally that the present conclu-
sion had been reached by a bare majority.
In his Judgment, to say nothing OF for
mer holdings of the court the decision
might well excite very grave apprehen-
sion. Continuing he said:
In my Judgment the decision strikes
at the very foundations of national au-
thority. in that it denies to the general
government a power which is or may at
some time in great emergency, such
as that OF war, become vital to the pres
trvaton or existence of the union. It
tends to establ sh that condition of help
lessnes in which congress found itself
during the period Of the articles of con-
federation, when 1T was without powers
by laws operating directly upon individ-
uals to levy and collect through its own
agents, taxes sutlient to pay the debt
and defray the expenses of government,
and was dependent in all such matters
upon the good will of the states and
promptness in making the requisilions
made upon them by congress.
In its practical operations this decis-
ion withdraws from national taxation not
only all incomes d. rived from real estate,
but the personal property of the whole
conntry-personal property, bonds,
stocks, investments of all kinds and the
income that may be derived from such
property. This result is from the fact
that under the decision of the court such
incomes cannot be taxed otherwise than
by apportionment among the states on
the basis simply OF population. No such
apportionment can posi- bly, be made
without doing monstrous. wicked injds-
tice to the many for the benefit OF the
favored few in particular states. Any at
tempt on the part OF congress to appor-
ton taxes on incomes, taking the states
on the basis of their population, would
and properly ought TO arouse such indig-
nation among the freemen of America
that il would never be repeated. The
American ma jority has practically de-
cided that without an amendment to the
constitution such incomes can never be
made to contribute to the support OF the
national government.
IF this new theory of the constitution
as beleve it to be- il-this new epart
ur; from the way marked OUT by the
fathers is justified by the fundamental
law, the American people cannot too soon
amend their constitution.
The Judgment Just rendered defeats
the purpose of congress by taking out of
the revenue not less than thirty millions
and possibly fifty millions Of dollars ex-
pected to be raised from incomes We
know from the official reports OF both
houses OF congress that taxation would