The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1895-04-25
DIRECT TAX PROHIBITED,
Reasons for Checking the
Scope of the Troublesome
Income Tax Law.
TEXT OF A FAMOUS OPINION
From Its Birth This Country Has
Held That Taxation and Repre-
sentation Go Together.

WASHINGTON, D. c., April 24.-The
text of the opinion of Chief Justice Fuller
in the income tax case, which was delivered
on the Sth inst, was made public to-day.
The opinion is preceded by an elaborate
review of the history of the case. The
opinion proper is introduced with thu
statement, 1.-THE constitution provides that
representative and direct taxes shall be
apportioned among the several States ac-
cording to numbers, and that no direct tax
shall be laid except according to the
enumeration provided; and also that all
duties, imposts and excuses shall be uni
form throughout the United States"
The men, says the opinion, who framed
the constitution had Just emerged from
the struggle for independence, whose rally
ing cry had been that taxation and repre-
sentation go together" The mother coun-
try had taught the colonists that self-taxa-
ton constituted the main security against
oppression. The States were careful
to see that the taxation and repre-
sentation should go together, so the
sovereignty should not be impaired,
and that when Congress voted a
tax upon property it should do so with the
consciousness and under the responsibility
that in so doing the tax so voted would
proportionately fall upon the immediate
constituents of those who passed it. More
than this, by the constitution the States
not only leave to the nation the concur
rent power to tax persons and property
directly, but they surrender their own
power to levy taxes on imports and to reg
ulate commerce. So when the Weather
States between themselves and their
less favored associates, and all are between
themselves and those who were to come,
gave up for the common good the great
source of revenue derived through COM
MERGE, they did so in reliance of the pro-
lection afforded by restrictions on the
grant of power. Thus in the matter of
taxation the constitution recognizes the
two great classes of direct and indirect
taxes and lays down two rules by which
their imposition must be governed,
namely: the rule of apportionment as to
direct taxes and the rule of uniformity as
to duties, imposts and excuses.
"There have been from time to time init
nations" said the Chief Justice, chat
there might be some tax which was not a
duties, imposts and excuses but such
tax for more than one hundred years of
national existence has remained undiscov-
cred.
By far the greater part of the opinion is
devoted to the consideration of the ques-
ton whether the tax on rents is direct
tax within the meaning of the constitution.
Ordinarily" said the Chief Justice in
taking up this branch of the subject, call
taxes paid primarily by persons who can
shift the burden on some one else, or who
are under no legal compulsion to pay
them, are considered indirect taxes, but a
tax upon property holders in respect to
their estates, whether real or personal, or
of the income yielded by such estates, and
the payment of which cannot be avoided,
is a direct tax. Nevertheless, it may be
admitted that although this definition of
taxes and direct taxes is prima facie cor
rect and to be applied in the consideration
OF the question before US, yet the constitu-
ton may bear different meaning and
such different meaning must be recog-
nized. But in arriving at any conclusion
upon this point we are at liberty to refer
to the historical circumstances attending
IHc 1ldIulllB anu duOpJlOi VI Gue CO1SGlCu-
ton as we'll as the entire frame and scope
of the instrument and the consequences
naturally attendant upon the one construc-
ton or the other"
Discussing the qualifications of the mem
bers of the convention he said they were
men of great sagacity fully conversant
with governmental problems, deeply con-
scious of the nature of their task and pro-
foundry convinced that they were laying
the foundations of a vast future empire.
Various authorities are quoted at consd-
cradle length to show the process by
which the compromise by which the con-
vention delegated TO Congress the power to
tax the various States was arrived at, and
the Chief Justice adds: "The compro-
mise, in embracing the power of direct
taxation, consisted not simply in includ-
ing part of the slaves in the enumeration
of population, but in providing that as be-
tween State and State such taxation
should be proportional to representation.
Many quotations are also made for the
purpose of demonstrating that the right of
Federal Government to directly assess and
collect its own taxes at least until after
acquisitions upon the States had been
made and failed, was one of the chief
points of conflict.
Discussing the Hilton case, so frequently
referred to in connection with this case, in
which the Supreme Court in 1894 decided
that a tax on carriages was not a direct
tax, the Chief Justice says that each of the
Justices, while suggesting doubt whether
anything but capitation or a land tax
was q direct tax within the meaning of the
constitution, distinctly avoided expressing
an opinion on that question or laying down
a comprehensive definition, but confined
his opinion to the case before their court.
The acts of July IA, 1S4S, and OF August
5, 1861, are reviewed, after which the fol-
lowing propositions are laid down:
First-That the distinction between direct
and indirect taxation was well understood by
the trainers of the constitution and those who
adopted 1t.
seCond-That under the State systems of tax
alton all taxes on real estate or personal prop