Birmingham age-herald., 1895-05-08
LEGAL ATHLETES WHISTLE, They Were Attorney-GeneraI Ol-
 ney and Mir, Choate. RULE OF APP0RTlONMENT
As Applied to Taxation Is Attacked by GoV-
 crnment's Leading Counsel.
MR. CH0ATE IS DRAMATIC AT FIRST
And Sarcastic Subsequently-He Assails the Dogma of the Sacredness of Prece- dents - Attendance Was Not
 So Large as Monday.

Washington, May 7.-The second days
 proceedings of the reargument in the
 income tax cases began in the supreme
 court of the United States at noon today in the presence of a greatly reduced | audience of spectators. lawyers as well
 as the public in general. Among the
 spectators who today attracted atten- tion was Col. William Jay, one of the
 counsel for the opponents of the law.
 He is a grandson of Chief Justice Jay,
 who was a member of the court when
 the first decision of the court was made on the subject of direct taxes, in the
 celebrated Hylton case of 1794, although
 he did not take part in the decision. Assistant Attorney General Whitney
 resumed his argument In support of the constitutonality of the law under con- sideration.
 MT. Whitney finished at o'clock, and
 was followed by Attorney-General Olney, who closed the case for the government
 in support of the law.
 After recapitulating the arguments advanced on behalf of the United States
 at the former hearing. he again con tended that, judged by the language or the law itself, it did not create tax which was necessarily to be deemed tax on real estate.
 The opinion of the court, he said, dealt with the case as If rents were the only subject of the income tax laws; as if all the rest of the statute were omit ted and it simply provided for assessing land owners according to their rents.
 That was not, he submitted, the true way of looking at the matter. But suppose it were adopted, what follws? We then have a statute dealing with landlords as cIaSs-taxing them because of their vocation of landlord and measuring the tax by rents actually received. Such tax was perfectly legitimate. There was not a calling nor pursuit in life which | was not subject to it at the will of the | legislature.
 What is leg .ly and theoretically pos | sble is one thing, what is actually and l practically possible is quite another. | How does this new doctrine that person. I alty generally, together with all in- l comes, must be taxed by the rule of ap- i pertionment-how does this new doc Urine work in practice and what is it's | operation as ,bdtween individual tax | payers? Why, it is conceded on all | hands that it will cause the most start | ling notwithstanding one man in one l part of the union pay five, six or ten | times as much as another man pays in | another part of the union in respect of | the same amount of property Yet, MT. | Olney said. it is impossible; therefore, | l submit to suffer ourselves to be be- l guiled with the flattering unction that under this new constitutional doctrine l the federal government does not sus- 1 tain serious impairment in one | of the most important attributes l of sovereignty. Theoretically it's tax | ing power may be unaffected Prac- | tcally it is cut up by the roots as to a | very large share of the wealth of the | country, as to all incomes and as to the | great mass of all personal property. fully believe when this is fully compre- | hended by the American people it will | be universally deprecated as a great | public calamity. They have come to | take pride in the United States as rep | resentative of an individual nationality, | as political sovereignty equal in au- | thority to any other on the face of the globe, adequate to all emergencies, for | eisn or domestic and having at its com l rnand for offense and defense and for l all governmental purposes all the re- | sources of the nation. i 4
 | It will be an unwelcome awakening for | them to discover that this thing of their l faith and their pride is but a maimed l and crippled creation after all, invested | with but fraction of the most impor- | tant governmental powers and weakest exactly where it should be the greatest | Nor will it lessen or mitigate their sur | prise to learn that a constitution which 1 has long been lauded to the skies as the l peoples taxation war, is now found to be so contriyed that. while accumu- | lated wealth shirks and escapes its due share of the public burdens under cover of it's provisions, the less fortunate mem-
 bers of society whom the government | reaches through what they eat and | drink and wear and all other things they must have and must buy, are wholly without constitutional protection and in the matter of taxation are prac- tically at the mercy of conditions
 Chief Justice Fuller questioned the at | torney-general as to his opinion on as to when rents were taxable, and he an- swered that it was after they had been received and were in his actual posses sion. Continuing on that suggestion the attorney-general said: Tt is intimated that, logically speaking, if tax on real estate is direct tax, so is tax on per | sonal property; and that if tax on rents | is a tax on real estate. so is a tax on in- terests and dividends a tax on the cap | ital producing it. That the logical pro- cess is without flaw I am willing to ad- I init, and concede further that if the step already apparently taken is not re- | traced the remaining steps are not un- | likely sooner or later to follow. But I am not prepared to agree that the result | if fully accomplished, will be matter l for congratulation, or anything but a misfortune or a disaster"
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