The morning news. [volume] (Savannah, Ga.) 1887-1900, 1895-05-07
FIGHTING THE INCOME TAX.
ALL THE JUDGES on HAND FOR THE
REHEARING.

Argumcuts-rhc Court and Counsel
Agree on the Time and Number OF
Arguments to BE AiIOVed-NIr.
Guthrie Presents the Arguments of
the Appellants.
Washington, May 6.-The re-argument
of the income tax case began in the SUI
preme court of the United States to-day
in the presense OF an assemblage of the
law and laity that, as on the occasion of
the original argument. more than ex-
hausted the accommodations Of the small
chamber in which It was heard. For the
first time since last November. there was
full complement of Justices on the bench.
and all the line of large leather covered
arm chairs behind the desk that separ-
ated the court from the spectators were
occupied. Mr.. Justice Jackson, the young
est member Of the court save one, was at
the extreme right of the chief justice, and
was naturally the observed OF all observ-
ers. He took an active interest In the
proceedings ana there was apparently
nothing to warrant the expectation that
he might not be able TO undergo the fatigue
of the hearing.
Among those present In the court room
were the various counsel engaged in the
case or interested in the result. Joseph
II. Choat, eX-Secretary b. H. Bristow.
Clarence A. Seward, William d. Guthrie.
David Wilcox. J. NJ. Wilson, Samuel She'll
berger Attorney General Olney, and As
sistant Attorneys Whitney, Dick
inson and Connolly. Representa-
tive Mcmillan, Senator Mitchell
Of Oregon, Hon. John A. Kasson of Iowa.
eN-Speaker Crisp, who Is in the city on
his way home from New York; ex-Post-
master General Don M. Dickinson, Rich
ard Watson Glider and many ladies', who
nave ffUm the first, manifested unusual
interest in the case
The beginning of the argument was
preceded by an announcement of the opin-
ions IN several cases, none of them, with
possibly a single exception, of general in
terest or Importance. This occupied forty
minutes, so that II was well on toward /
CLOCK when w. ID. Guthrie opened the
argument for the petitioners Messrs. Hyde
and Pollock, who seek to enjoin the direc-
tors Of the Farmers Loan and Trust and
uhe Continental Trust Company
OF New York from paying the
tax on dividends declared on
the stock OF those corporations, and In
SO doing attack the constitutionality of
the law
ceodcd with
The chief justice said: "In these eases
the appellants made application for a re-
hearing as to those propositions upon
winch the court was equally divided,
WhereuDOn the attorney general present
ed a suggestion that If any rehearing were
granted II should embrace the whole case
treating this suggestion as amounting in
itself to an application for a rchearihg
and not desiring to restrict the scope OF
the argument, we set down both apphca-
tons to be heard to-day before a full
bench, which the Anticipated presence OF
our brother Jackson, happily realized, en-
abled us TO do. No further argument will
be desired We were obliged however,
TO limit the number of counsel to two on
each side. but as to the time we await
the suggestions of counsel"
Attorney General Olney yielded 70 Mr.
Choate, who said that he believed five
the case. The chief justice announced
that the court would grant so much, the
counsel for the government, Of course,
70 occupy the same amount Of time II
they desired.
Mr.. Guthrie presented the views set
forth at some length in the brief upon the
contention that. as Il was clearly the in
tention of congrcs TO have the law act as
whole, the provisions which are unques-
tOnably void inValidate the whole act
In order TO preserve the provisions now
remaining the court must strike out words
actually used, such as rents, income and
product of land. Before the court can thus
attempt to legislatc It must be clearly
satisfied that congress would have passed
the act in this mutilated form How can
the court hold that It can assume con-
greSs would have passed the act without
tho Objectionable and titutipnal
features when the debates show conclu-
siVely that congress deemed these uncon-
stitutional provisions an integral and in
separable portion of its general scheme?
Counsel took the ground that IL was i'm
possible for the court to remodel the act
and say that congress would have passed
the act without the provisions which IL
has In terms made an integral part. For
the court to do this would be to make
new law the court would be legislating and
making a law. not declaring OF interpret
ing 1t. This contention was enforced by
many citations from decisions,
MIR Guthrie then contended. as he did
upon the previous argument, that the act
ought to be declared void because of its
inequalities, and ne again urged the prin-
cipal grounds then discussed.
j. NJ. Wilson, of the counsel for John @.
Moore who sued In the courts Of the Dis
trict OF Columbia for an Injunction re-
straining Internal Revenue Commissioner
Miller from executing the law, asked per-
mission to file an additional brief In that
case, which has not yet been decided by
In submitting the petition for re-
hearing, Mr.. Guthrie said. the appellants
Invited and faced the criticism Of many
of the opponents of the income tax. who
saw in the opinion a decision in favor,
in part, at least, Of those who denied the
legality of the act Counsel felt that
great constitutional controversy ought
not to be permitted to transform itself
into test Of shrewdness.
1t was their duty to bring about as
speedily as possible final end to all
these controversies that must ensue if the
decision continues to stand as that Of a
divided court There was doubt not so
much as to whether congress had power
10 tax. but as TO its method OF taxation.
The decision in this case should settle
finally and forever the greatest consttu
tionai question ever brought before the
court. and counsel took II upon themselves
10 see that the decision should not be un-
dermlned
in regard to the awful responsibility which
the court would assume in declaring an
act of congress unconstitutional and the
cIafnor that II might incite," said Mr.
Guthrie 1T might not therefore, be
arniss to observe that while we have been
contesting some Of the provisions of the
Wilson tariff bill on the ground of their
llnconstftutionality, the department OF
Justice itself has been earnestly and
strenuously carrying on a contest on pre-
cfgely the same ground against certain
sections of the Mckinley tariff bill. This
has been done with so much ability and
success that the executive branch Of the
Government has procured judgment an
nulling as unconstitutional and void the
sugar bounty sections OF that act There
fore It should not, II seems to us, excite
comment, and much less criticism. that
private citizens, in the protection of their
own rights, have followed this example
IN that same case, precedents were cited
and the doctrine of practical interpreta-
tion advanced, but the government sue
ceeded in clearing all this away and in