The San Francisco call., 1895-05-21

to the class OF direct taxes; ii it does, 1t is be-
ing apportioned in violation of the constitu-
ton, and we must so declare.
Differences have often occurred in this court,
differences now exist, but there has never been
a time in its history when there has been
difference of opinion as to its duty to announce
its deliberate conclusions unaffected by
considerations not pertaining to the case in
hand.
If it be true that the constitution should
have been so framed that tax of this kind
could be laid the instrument defines the way
for its amendment. In no part of it was
greater sagacity displayed. Except that no
State, without its consent, can pc deprived of
its equal suffrage in the Senate, the constitu-
tion may be so amended upon the concurrence
of two-thirds of both houses and the ratifica-
ton of the Legislatures of two-thirds of the
States.
The ultimate sovereignty may be thus called
into place by slow and deliberate process
which gives time for mere hypothesis to ex-
haust itself and the sober second thought of
every part of the country to be asserted.
Being of the opinion that so much of the Sec
tions of this law as lays a tax on income for
real and personal property is invalid, we are
brought to the question of the effect of that
conclusion upon these sections as whole. 1t is
elementary that the same statute may be in
part constitutional and in part unconstitu-
tional and if the parts are Who'll
ly independent of each other that
which is constitutional may stand
while that which is unconstitutional will be
rejected. And in the case before us there is no
question as to the validity OF this act, except
sections 81 to 81 inclusive, which relate to the
subject which has been under discussion, and
as to them we think the rule laid down by
Chief Justice Shaw in Warren Vs. Charles
ton is applicable; that if the differ
ent parts are so mutually connected
with and dependent on each other
as conditions, considerations or compensations
for each other, as to warrant belief that the
Legislature intended them as whole, and that
if all could not be carried into effect the Legis
lature would not pass the residue independent
ly, and some parts are constitutional, all the
provisions which are thus dependent, condi-
tional or connected, must fall with them.
Or, as the point is put by Mr.. Justice Mat
thews in Poindexter VS.. Greenhowe: cit is un-
doubtedly true that there may be cases where
one part of a statute may be enforced as consti-
tutional and another be declared imperative
aud void because unconstitutional, but these
are cases where the parts are so distinctly sep
arate that each can stand alone, and where the
court is able to see and declare that the inten-
ton of the Legislature was that the part pro-
nounced valid should be enforcible, even
though the other part should fail. To hold
otherwise would be to substitute for the law
intended by the Legislature one they may
never have been willing by itself to enact"
And again, as stated by the same eminent
Judge in Prague VS.. Thompson, where it was
urged that certain illegal exceptions in a sec
ton of statute might be disregarded, but the
rest could stand, ''the insuperable difficulty
with the application of that principle of
construction to the present instance is
that by rejecting the exceptions intended by
H. ,,ela l,t
| enact what confessedly the Legislature never
meant. 1t confers upon the statute positive
operation beyond the legislative intent and
beyond what any one can say it would have
enacted in view of the illegality of the excep-
hons."
According to the census, the true valuation
of real and personal property in the United
States in 1890 was $65, ,O37 ,O91, ,191, of which
real estate with Improvements thereon made
up $39, ,544, ,544 ,333. OF course, from the lat
| ter must be deducted in applying these
sections all unproductive property and
all property whose net yield does not
exceed $4,000, but, even with such
deductions it is evident that the income from
reality formed vital part of the scheme for
taxation embodied therein. If that be stricken
out, and also the income from all invested
personal property, bonds, stocks investments
of all kinds, it is obvious that by far the largest
part OF the anticipated revenue would be
eliminated, and this would leave the burden
of the tax to be borne by professions, trades,
employments or vocations, and in that way
what was intended a tax on capital would
remain In substance a tax on occupations and
labor.
We cannot believe that such was the inten-
ton of Congress. We do not mean to say that
an act laying by apportionment direct tax on
all real estate and personal property the
income thereof, might not also lay excise taxes
on business privileges, employments and
vocations. But this is not such an act
and this scheme must be considered
as whole. Being invalid as
to the greater part and falling as the tax
would if any part were held valid, in direc-
tion which could not have been contemplated
except in connection with the taxation con-
| sidered as an entirety, we are constrained to
conclude the sections 81 to 81 inclusive of the
act which became law without the signature
| of the President on August %, 1894, as wholly
! imperative and void