Evening star. [volume] (Washington, D.C.) 1854-1972, 1895-01-16
INCOME TAX S UT
Conclusion of the Arguments in the Case
of John G. Moore.
Judge Hagner Says He Will Announce
His Decision Next Wcduesdny-Mr.
WilsOn for the Complainant.

The hearing of the case Of John G. Moore
of New York against the commissioner OF
internal revenue, in which Mr.. Moore asks
the court to restrain, by an injunction, the
commissioner from proceeding to collect
the income tax, was resumed this MORN
ing before Judge Hagner in Equity Court
No. 2.
Mr.. Jere M. Wilson. continuing his argu-
ment on behalf Of the complainant, said
that the United States Supreme Court with
the greatest reluctance pronounced an act
Of Congress unconstitutional. Nevertheless
1t never failed to do SO when the facts and
law required it. A law which is unconsti-
tutional, said Mr.. Wilson, is no law at
all, and could not be executed by any Of
ficer of the government. 1t would be q
startling proposition to assert that an act
void in law could be executed to the in
jury of a citizen, and it would be no less
startling and remarkable to discover that
there is no law or power in the courts to
prevent the execution Of an unconstitution-
al act.
1t would be equally startling to find
that Congress could make a law and then
permitted to invoke the aid of the courts
in setting it aside, Notwithstanding the
unconstitutionali,y of the law.
Injunction the Proper Remedy.
It was clear, argued Mr.. Wilson, that
an injunction is the proper remedy in the
present case, for, where an executive re-
fused to perform plain duty incumbent
upon him. mandamus was the proper
writ to compel him to perform, and where
such an officer was performing, or was
about to perform, duty for which there
was no warrant Of law, the officer could
most properly be restrained by an injunc-
ton. So, too, said Mr.. Wilson, in the case
Of an executive proceeding or about to
proceed under an unconstitutional law.
For in the latter event he has no SEM
blance of law-an unconstitutional act be-
ing no law at all. Discussing the case of
Noble against Logging X. r. Co.. In
which the United states Supreme Court
had affirmed the granting of an injunction
against the Secretary Of the Interior, Mr.
Wilson stated that that case furnished a
clear precedent. If, as the counsel for
commissioner had asserted, no argument
was made in that case against the power
of tho court to grant the Injunction, 1t
was because. argued Mr.. Wilson, that the
right of the court was not questioned by
thu Secretary. And, said Mr.. Wilson, as
the Supreme Court had affirmed the de-
csion below. the warranted Inference was
that that tribunal 30 thought.
An Obnoxious Law.
The income tax act, said Mr.. Wilson, was
one Of the most phenomenal and obnoxious
laws ever enacted 1t taxed incomes reach-
ing back two years, and 1T was also dual
tax act, taxing the net earnings or a
company and then it's dividends. Mr.. Will
son also pointed out that should foreign
student, studying at one OF the American
colleges, enjoy an income derived Wholiy
or in part from foreign or American in
yestments SO much Of the income exceed
ing $4,000 year would be subject to the
tax of . per cent.
The tax was not uniform one, declared
NJ tle,.>.n fnr
fortunate enough to enjoy an annual In
come exceeding $4,000 The act seeks to
prevent thrift enterprise and energy, con-
tinued Mr.. Wilson: by taxing them. Yet 1t
all that it Is today. To stop the ambition
in business affairs of men was most
dangerous thing, he said, and matter with
which Congress should never interfere
Mr. Wilson said, further that the tax act
is fraught with danger to the people and a
discrimination of class. AS it is discrimi-
mating it Is anything but uniform, and
therefore contrary to the Cons tltutlon. Ihe
various provisions of the act, contended
Mr.. Wilson, are inseparable, and II any
one of them is found to be void. the whole
act be esomes tainted. and the act Is thereby
rendered unconstitutional.
Ex-senator Geo. F. EdmundS OF Vermont,
who was expected to address the court in
support of Mr.. Moore's bill, was again pre-
vented by indispoSition from taking part in
the case today, and upon the conclusion of
General Whitney replied briefly In support
Of his motion to dismiss the suit.
Mr.. Whitney's Reply.
Mr.. Whitney said that it was no more
than proper that those who enjoyed in
comes exceeding $4,000 a. year should con-
sent to pay a tax of so small an amount
on them. He was one so favored by for
tune, and he person ally did not object to
the tax. Discussing the legality of the act,
Mr. Whitney read several decisions of the
United States Supre Court which, he
claimed, sustained previous income tax
acts. Some of them, he said, were more
obnoxious than the present one. Respect
ing the taxing of the incomes of aliens,
Mr.. Whitney declared that he saw no rea-
son why that should not be done. The act
merely taxed that portion of the income
under the protection Of the United States
government.
Mr.. Whitney said that he could not agree
with Mr.. Wilson that an unconstitutional
clause of the act made the whole act void.
On the contrary, he quoted number of
cases in which, he argued, the United
States Supreme Court had sustained his
position. The courts had decided, too, he
said, that questions as to taxation must
always be raised by law. 1t had not been
so raised in the present case, he argued,
and he felt sure that the court would hold
that it had no power or right to interfere.
At the conclusion of Mr.. Whitney's brief
argument Judge Hagner took the papers,
stating that he would announce his decision
next Wednesday,.