Evening star. [volume] (Washington, D.C.) 1854-1972, 1895-05-06
ARGUING AGAIN
Income Tax Cases Before the Su-
preme Court.
ON MOTION FOR 4 REHEARING
The Court Decides to Reopen the
Whole Matter.
JUSTICE JACKSON PRESENT

An astonishingly large number of persons
got into the very small space allotted to
visitors in the Supreme Court room this
morning. They began going there early, an
hour and half before noon and long be-
fore that hour, when the court was sched-
uled to meet, every available seat was
taken, and the bar was filled to overflow
ing. large proportion of the crowd was
composed of ladies. There was a large
sprinkling of newspaper men. who, thanks
to the lack of sufficient room, had no ac-
commodations for their work. After the
seats We're all taken, files of folks found
standing room.
The cause Of all this unusual crowd was
the fact that today for the first time in
many months the Supreme Court was to
sit with a full bench and to begin hearing
arguments on the question Of reopening the
income tax cases, which were partly de-
cided few weeks ago. Justice Jackson.
whose absence from the bench prevented
majority opinion in some of the points
presented. reached the city yesterday
morning from his home, Bellemead, Tenn,
and resumed his seat on the bench at noon
today. He is somewhat wasted in figure
and shows signs Of his illness. He was Of
course the center Of attention today, being
now practically the judge of the entire
question, as upon his vote upon the main
point Of the constitutionality of the law
presumably rests the entire case, as 1t is
not thought likely, that any of the other
votes as cast a few weeks ago will be
changed.
Distinguished Audience.
There was an unusually large number of
distinguished men present, drawn to the
court by natural interest in the pro-
ceedings. Secretary Morton came into
court for few minutes during the middle
of the day. EX-Postmas:er General Dickin-
son listened to the opening remarks of Mr.
Guthrie. one Of the attorneys for the petit
TONERS for rehearing. Speaker Crisp &C.
cup-ed seat within the bar. Among otn-
ers who were there Were Senator Mitchell,
Representative DalZell and McMllin, and
eX-RepreSentative Cutcheon and Kasson.
The court was occupied for an hour after
II convened by the announcement of opin-
Ions from the bench. the admission of new
members to the bar and the hearing Of
routine motions. The interest of course
centered in the case set specially for the
day, but the dull and undressing pro-
ceedings in the first hour caused very few
to surrender their coveted places and re-
tire. One of the spectators had sent a Dis
tr-ct messenger ahead of him in the early
morning to secure seat for him, and was
considerably chagrined when, on his ar
rival at 1870. he found the boy proudly
holding desirable seat with several others
vacant on each side of him.
TO Go Into All the Questions.
When the desks had all been cleared of
small matters Chief Justice called the
cases by number and stated that In re-
Spouse to a suggestion by the Attorney
General, which the court interpreted as
virtually motion for a rehearing. the
court had decided to permit counsel to go
into all the questions involved in the case.
The rehearing, he said. had been dependent
upon the presence of Justice Jackson, a
contingency now happily realized. 1t had
to two on each side, but that the court
would leave the question of the length of
time to be consumed and the proper divis-
ion of it to the attorneys themselves. At
this Attorney General Olney, who sat at
the center of the bar with his assistant
Mr.. Whitney, bowed politely to Mr.. Joseph
Choate, the chief counsel for the petit
TONERS, who sat with Mr.. w. D. Guthrie
at the left of the court. Mr.. Choate bowed
in return and each waiting for the other
to arise, there was pause of some min
utes, which was finally broken by Mr..
Choate's stating that he thought five hours
would be sufficient for his side. MIR. Olney
made no response, and the Chief Justice
said that he thought that the same period
would probably suffice for the government
well.
Before Mr.. Guthrie began his argument,
Judge j. NJ. Wilson was permitted, on be-
half Of John G. Moore, to file a brief in the
present case.
MIR. Guthrie's Argument.
Mr.. Guthrie began by saying that coun-
sci for the appellants in cases had been
subjected to considerable criticism for their
motions for a rehearing, but they had felt
justified in the realization of the fact there
were many points still undecided in the
f,,o Il S,,1i Of xyhi oh no
entire country was vitality interested, and
he assured all concerned that the counsel
for the appellants in the present court
would approach in spirit of the highest
patriotism, and with no desire for mere self
ACKNOWLEDGMENT He said that the question
involved was a constitutional one, and add
ed: THE Constitution Is the political creed
and conscience Of the nation which must
control and rule our destiny; and in so far
as this court shall preserve 1t intact, ac-
cording to it's letter and its spirit, or per-
nit the darkness of error to arront its
light so will our future be progress or de-
cline happiness or misery, glory or shame.
IF the court must choose between a
statute and the Constitution, between
decision and the spirit Of the Constitution,
between an obiter dictum and the plain
words of the Constitution, it is not then of
the essence of judicial duty to decide con-
formally to the Constitution disregarding
statute, decision dictum. There can be
no law inconsistent with the fundamental
laws; and a century of error cannot over
rule the Constitution. The question is not
to be determined by considerations of the
present expedency or practicability or
hardship, but according to the lights, the
purpose the intention of the framer and
as they intended the Constitution to oper-
ate so must we enforce it today.
1.-THE people are not to be deprived of in
herited rights, such as are imbedded in our
Constitution, by mere precedent or the tech
meal application of the rule of stare de-
cisis. The Constitution cannot be ensav-
ed by any such doctrine nor manacled with
such parchment chains. The most tech
meal work in the common law, Fearne on
Contingent Remainders is cited to uphold
the claim that an error in the interpreta-
ton of the Constitution must be perpetu-
ated. We answer. in the language Of our
great historian: Woe hangs over the land
where the absolute principles of private
right are applied to questions of public
law and the effort is made to bar the prog
ress of the undying race by the despotic
rules which ascertain the property Of evan
escent mortalS!'
He said the Constitution was not the
creation of the Philadelphia convention,
but was the result of the experience of
ages. The trainers Of 1t were practical
men, who had profound distrust in theo-
ries He asserted that the provision in re-
gard to direct taxes was not inserted blind
ly as the opposition seemed to contend,
but was the result of a compromise as all
understood.