The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1895-04-09
Justice White Dtssents.

Washington. April S.-Justice Whites
dissention probably reflected in a con-
siderable measure the views which
would have been promulgated had the
court sustained the law substantially
as a whole. Concerning the form in
which the cases came before the court
he said:
First-The suit cannot be maintain
ed because its real object is to enioin
the collection of a tax.
Secondly the text of the statute
of the United States. the right to en-
Join the payment of a United States
tax is denied.
Thirdly adiudications of this court
from the foundation of the government
until the present time. it has been held
that a United States court will not
en1oin the payment of a tax due the
United States and that the proper pro-
ceeding for q person on whom such a
tax is levied and who would assert his
constitutional immunity from it's ex-
action. is to pay the tax under protest
and sue for its recovery.
Fourth and Fifth-The claim here is
that the relief sought is not an in
junction against the collection of a tax
but an injunction against its payment
by the corporation. The theory upon
which this contention rests is that as
the corporation is a trustee of the
stakeholder. the stakeholder is entitled
to have it enioined from making this
payment. This contention is. in my
judgment, absolutely unsound since its
promise is that the stakeholder. by
proceeding against the corporation can
do by indirection that which he can
not do directly
SiXth-The contention that BECAUSE
the complainant is a stakeholder in
corporation. equitable rights SuperVene,
is. in nv opinion. clearly unsound
Seventh-This principle is clearly ap-
Dlicable TO United States tax, es-
Decially in view of the mandatory
terms of the act of Congress forbidding
an injunction.
Eighth-The assertion that the claim
here asserted is not Of a right to have
the corporation enjoined from paying
the tax, but simply of right to have
an injunction against a voluntary pay
ment, such as would deprive the stock
holder of his legal privilege is, 1 think.
a mere subterfuge.
Ninth-If the purpose of this bill is
to prevent voluntary payment, then
the case gives rise to no necessity for
determining the constitutionality of
the law.
Tenth-In such a case the proper
remedy is - writ of mandamus to
compel the corporation TO confirm the
duty of paying under protest, so as to
preserve the right of suing to recover.
This remedy could be resorted to. and.
I take it, would be allowed without
deciding the question of constitution
atty.
Eleventh-This being true the theory
here adopted. that it is necessary to
pronounce upon the constitutionality
of the law in order to protect the
rights of the stockholders, seems to
me to be unsound
Twelfth-The only decisions referred
to in the opinion as supporting the
conclusion reached by the court are:
Dodge V. Woolsey,s IS How. 80, and
Halves V. Oakland, 104 U. s.. 450
Neither of these authorities, in my
judgment, susta;ns the position in. sup
port of which it is cited. The first of
tax and therefore was clearly outside
Of the rule applied in the case of Uni
ted States taxes. The second case was
controversy between a stakeholder
and a corporation regarding the adj
ministration of corporate affairs. 1t
involved no question of taxation what
ever and therefore the decision did not
deal at all with the act of Congress
or the enforcement of the continuous
line of decisions of this court, holding
that it will not restrain the payment
misses until the party had paid and is
suing for redress by suing for re-
coVerY.
On the merits of the act he made
the following points:
First-The government of the
United States possesses plenary pow
ers of taxation-all powers which be-
long to any government as such-sub-
1ect only to the limitation imposed