The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1895-05-07
RE0PENING OF THE CASE
Justice Johnson of Tennessee
Now Assumes the Position
of Umpire.
REASONS FOR THE REHFARING.
Attorney Guthrie for the Appellants
Urges That Many Important
Points Remain Unsettled.

WASHINGTON, D. c., May 6-The
Supreme Court, with its full mem bership
of nine Justices on the bench for the first
time in many months, began the hearing
to-day of the income tax suits. Justice
Jackson of Tennessee, who has been absent
from Washington the greater part of the
! past year seeking restoration to health,
took his seat with extraordinary interest
attached to his presence, since he assumes
practically the position of umpire upon the
vital question of the principle upon which
| the law is based, which divides the other
Justices into equal factions Justice Jack
son did not appear to be feeble, but 1t was
plainly evident that he was far from being
well man, and that only by a strong
effort did he sit throughout the hearing.
| Most conspicuous among the spectators
| in court were Postmaster-General Wilson,
the chairman of the ways and means COM
mittee that framed the tariff act; Repre-
sentative McMillin of Tennessee, chair
man of the subcommittee which drafted
the income tax provisions, and ex-Speaker
| Crisp of the House. The attendance OF
lawyers and others having an unofficial In
terest in the matter was noticeably smaller
than at the first argument of the law, and
after the usual contingent of casual tour
lists had satisfied their curiosity to obtain
| a sight of the prominent men, the court
room was not crowded.
But two arguments are to be made for
each side-by Attorney-General OIney and
the assistant encouragement for the Gov
eminent, by W. G. Guthrie nd Joseph
| Choate for the appellants, who are Messrs.
HYDE and Pollock. To-day Mr.. Guthrie
delivered his speech and Mr.. Whitney be-
| gan his, which he will finish tomorrow.
AS the time assigned is five hours to each
side. the arguments will be closed Wednes-
! day afternoon.
Mr. Guthrie began by saying that coun-
| sci for the appellants in the cases had been
subjected to considerable criticism for their
motions for rehearing, but they had felt
! justified in the realization of the fact that
there were many points still undecided in
the definite and final adjudication OF which
the entire country was virtually inter
ested, and he assured all concerned that
the counsel for the appellants in the pres
ent case would approach it in a spirit of
the highest patriotism and with no desire
for mere self-aggrandizement. He said
| that the question involved was consti-
tutional one, and added:
"The constitution is the political creed
and conscience of the nation which must
control and rule our destiny, and in SO lar
as this court shall preserve it intact, &C.
cording to its letter and its spirit, or permit
the darkness of error to affront its light, so
will our future see progress or decline,
happiness or misery, glory or shame.
There can be no law inconsistent with the
fundamental law, and a century of error
cannot override the constitution.
"The question is not to be determined by
considerations of present expediency OF
practicability or hardship, but according
to the lights, the purposes, the intention
of the trainers, and as they intended the
constitution to operate, so must we enforce
it to-day. The people are not to be de-
prived of inherited rights, such as are I'M
bedded in our constitution, by mere pre-
cedent or the technical application OF the
rule of stare decisis."
The point ofcontention, said Mr.. Guthrie.
was that the authorities established the
principle that taxation upon the income of
one class of property is as Objectionable as
upon another. He charged the Hylton
case with being the sole cause of all the
error in this matter. 1t was, he said, a
political case in which the administration
of Washington was pitted against the anti
Federalists and case in which the local
prejudice cut an important figure.
He controverted the opinion that the de-
cision in the Hylton case had been ac-
copied as deciding that only the capitation
| tax and the land tax were direct taxes, and
asked, if this was so, why was it Congress
in 1886, less than thirty days after the de-
cision was rendered, had instructed the
Secretary of the Treasury by resolution, to
report a plan for laying direct taxes by ap-
portionment?
| Mr.. Guthrie then presented at some
| length the contention that. as it was
clearly the intention of Congress to have
the law act as whole upon the incomes,
the provisions which are unquestionably
/ void inyalidate the whole act. The
/ law, he said, expressly includes rents and
| other incomes from land and personal
property, and its general language covers
also income from municipal bonds. The
4 Government has insisted it was not only
Congress, to tax the income from munich
pal bonds.
The object of the act is single and entire,
that is to say, the taxation of incomes
from all sources. In order to preserve the
provisions now remaining the court must
strike out the words actually used, such as
rents, income and product of land.
| He declared the act should be sent back
to Congress because it is arbitrary and I'M
just and in violation of the express pro-
visions of the constitution. He then took
up the question of exemptions and limita-
tons, repeating much of the argument adj
vanced at the first hearing, and asked the
court to declare the whole act unconstitu-
tional because of the exemptions.
Replying to the suggestion of Attorney
General Olney that in the light of the re-
cent decision the Government should re-
fund the money collected under former in
come-tax laws, Mr.. Guthrie said:
"The people of the United States gladly
paid the income tax to defray the expenses
of the war and would make similar saeri-