The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1895-05-09
THE REHEARING IN THE INCOME
TAX ASH

The rehearing in the income tax case
presents some novel and curious aspects.
In the first place. it must be a strange
idea to any foreigner that a court, even
the highest court of the land. can sit
in judgment on an act OF the highest
legislature and affirm or nullify it on
constitutional grounds. This could not
happen in any other country, and eve
intelligent foreigners have difficulty in
getting SUCH a knowledge of our Consti-
tuition and political system as to enable
them to understand how il can be done.
To Americans the idea is as simple as
the practice is common. and SO far from
regarding il as a dangerous or revolu-
tionary proceeding they regard the
courts as pre-eminently the defenders
of the Constitution and their final de-
cision as the ultimate law.
The present case presents the singular
feature of the highest court of the land,
after hearing argument with one Judge
absent in a case of almost unparalleled
Importance. and being equally divided
in their opinion as to the constitution
atty of the law. voluntarily granting a
~rehearing before a full bench, thus
virtually according to the ninth mem
Der of the court. who was absent in the
former hearing. the important duty of
umpiring between the eight who were
evenly divided. This is as If all the
judges had waived their previously
formed and expressed opinions and
agreed to leave the entire question to
N ynornhar % the oa,,rt Tho oofin,, &c
as creditable to them as it is to him..
1t shows that they have no pride of
opinion that they are not willing TO lay
aside in the furtherance of a correct
decision. and that. without knowing in
advance how he will hold, they are will
ing to leave the casting vote with the
ninth judge. OF course. in a strict sense
the casting vote is always with the
ninth judge. but in the present case
each one Of the eight judges knows the
views of the other seven. while none of
them knows the views Of the ninth.
The umpire will certainly decide against
four out of the eight, n non of them
knows whether he will be sustained or
overruled.
The attitude of the country in this
singular situation is worthy of remark.
First, a law of vast Importance. affect
ing property interests of enormous
value. is submitted TO the Supreme
Court for decision as to it's constitu-
tionality. The people whose interests
are involved await the decision patient
ly. When ii comes it is so indefinite
as to puzzle even lawyers to construe
1t. the only consensus of opinion being
that it wipes out some very important
provisions of the law. Still, the people
do not object. They are ready to obey
the law if they can only find out what
II is. Then the court, on motion of coun-
sci, orders a rehearing of the case, with
a possibility that ii may result in over
throwing their former decision and re-
establishing in full force a law which
the people had supposed vas set aside
by the first decision. And still the peo-
pie are patient, as. of course, they ought
to be, awaiting only the final decision
of the court as to what the law is, when
they will promptly obey it. The situa-
ton and proceeding are characteristic
of a people who venerate their written
Constitution. and who, by instinct and
practice. are the most ~law-abiding peo-
pie in the world.