Birmingham age-herald., 1895-05-07

directly in hand.
 Since the last argument counsel has discovered two instances one in Mas sachusetts and one In Pennsylvania, where in a law the term "direct taxes" was used and defined. In view of this proof counsel earnestly submitted to the court that it was clearly the inten- ton and understanding of the framers of the constitution and of the people who voted to adopt it, that the term direct taxes" included q tax upon per sonal property and it's incomes, as well as tax on land and income derived from it's ownership. No difference in principle between the taxation of lands and the taxation of personal property could be suggested which was recog- nized in Jurisprudence. Land had some use irrespective of it's income, but the great body of personal propterty has no value whatever to it's owner, except by reason of the income arising there from. Logically, if taxes on rents, issue and profit of real estate arc equivalent to taxes on the land itself and there fore direct taxes, taxes on the income of personal property as such must be equivalent to taxes as such property, and therefore direct taxes.
 MT. Guthrie then took up the Heyton case, which he said had been the sole cause of all the error on this question and which it was insisted by the gov ernment irrevocably established as IT written into the constitution itself, the doctrine that the federal government was limited in the power to lay direct taxes to a capitation tax and tax d. rectly on land.
 We are told" said he, that although the conclusion might be different if the question were a new one, the court IS precluded from considering the merits of constitutional question or guaranty by the expression in this case. Such an argument comedies the possibility of original error. It is never too late to adopt and declare the truth as to the constitution. Under such circumstances as here presented the doctrine Of stare decisi should not be applied.
 Much was said upon the prior argu- ment in regard to the lawful reSponSi- bilty which the court would assume in declaring an act of congress unconStitu- tional and the clamor that it might in- cite" said MT. Guthrie. Ut might not therefore be amiss to observe that while we have been contesting some of the provisions of the Wilson tariff bill on the ground of their unconstitutionality, the department of justice itself has been earnestly and strenuously carrying on a contest on precisely the same ground against certain sections of the Mckinley tariff bill. This has been done with so much ability and success that the ex- ecutive branch of the government has procured judgment annulling as un-
 
 sections of that act Therefore it should not, it seems to us, excite comment, and much less criticism, that private citi- zens, in protection of their own rights, have followed this example. In that same case precedentS were cited and the doctrine of practical interpretation ad- vanced, but the government succeeded in clearing all this away and inducing the court to return to what Is insisted with the precedent or no precedent, as the only safe guide-the truth of the consti- tution."
 Mir. Guthrie presented the views set forth at some length in the brief upon the contention that 1t was clearly the ini tention of congress to have the law act as a whole, and that the provisions which are unquestionably void invaldate the whole act. In order to preservezthe pro visions now remaining the court must strike out words actually used, such as rents, incomes and products of land.
 Before the court can thus attempt to legislate 1t must be clearly satisfied that congress would have passed the act in this mutilated form. How can the court hold that congress would have passed the act without the objectional and un- constitutional features, when the debates show conclusively that congress deemed these unconstitutional provisions an in- tegral and inseparable portion of it's gen eral scheme? Counsel took the ground
 
 model the act and say that congress would have passed the act without the provisions which it has in terms made an integral part. For the court to do this would be to make a new law; the court would be legislating and making law, not declaring or interpreting it. This contention was enforced by many citations from decisions.
 MT. Guthrie then contended, as he did upon the previous argument, that the act ought to be declared void because of it's inequalities, and he again urg d the prin- cipal grounds then discussed.
 In reply to the statement of the attor- ney-general upon the application for re- hearing that If this new exposition of the constitution is to prevail the United States ought to refund the sums collected under the previous income tax laws Mir Guthrie said:
 "If the suggestion is that you close your eyes to the truth and refuse to in- terpret the constitution conformable to the intention of the framers and the peo- pie who adopted it, because it may in- volve the government in loss of money, then we say that the suggestion is ir- relevant; that it ought not to have been made, and that it lacks every element of political morality. There is no propriety on the part of the executive branch of the government in telling this court that it should be affected one way or the other by the fact that it's decisions may com pei the refunding of vast sums of money unlawfully collected"
 He denied, however, that there would be any attempt to refund this income tax or the cotton tax. It would be op- posed by every principle of civil right to hold these sacrifices, willingly sub mitted to in time of war, as precedents for unlawful exactions in a time of peace. That taxation submitted to by a patriotic people in time of war should furnish no precedent has been the doc Urine of English constitutional writers for 600 years It was declared in the con- formation charter of Edward I, and tha dacla ra ti0n of fha rripoirIa thot A..