Evening star. [volume] (Washington, D.C.) 1854-1972, 1895-05-21
What Justices Brown and White
Said of the Income Tax Law.
See DANGER 10 AMERICAN LIBERTIES
Some Striking Utterances Made
From the Bench.
f o r NJ E r CISION

AS noted in The Star yesterday, dissent
Ing opinions were read in the Supreme
Court in the income tax cases by Justices
Brown and White, making four in ALL
That of Justice White was given in the
same energetic style as that of Justice
Harlan. He used the plainest kind of
language and grew earnest he an
nounced his belief that the Judgment of
the court was "a dangerous and appalling
violation of the Constitution" From first
to last. he said. the opinion of the ma
jority but a series of contradictory
propositions. one eating up and destroying
the others.
In conclusion, Justice White said: 1.-The
injustice of the conclusion points to the
error of adopting it. 1t takes invested
wealth and reads it into the Constitution
as favored and protected class of prop
erty, whilst 1t leaves the occupation of the
minister, the doctor, the professor, the
lawyer, the inventor, the author, the
merchant, and all the various forms of
human activity upon which the prosperity
of a people must depend, subject to taxa
ton without apportionment. A rule which
works out this result, which stulifies the
Constitution by making it an instrument
for grievouS wrong, 1t seems to me
should not be adopted. especially when. In
order to do so, the decisions of this court.
the opinions of the law writers and pub
1icists, tradition, practice and policy of the
government must be overthrown.
Nor is the wrong which this conclusion
infiictS mitigated by the contention that
the doctrine of apportionment now here
applied TO all real estate and invested per-
sonal property leaves the government with
ample power to reach such property by
taxation and make 1T bear its just part of
the burdens of the government. On the
contrary, instead of doing this, 1t really
deprives the government of the power of
taxing such property at all, because the
tax IL is held be imposed by the
rule of apportionment. The absolute in
equality and injustice of taxing by refer
ence to population and without regard to
the amount of the wealth taxed are so
manifest that to admit the power to tax
and to limit 1t to this mode substantially
denies the power itself. since it imposes
restriction which renders its exercise prac-
tically impossible.
Nor does the claim that the states may
pay the amount of the apportioned tax
and thus save the injustice to their citi-
Zens resulting from it's enforcement rem
der. the conclusions less hurtfuI. In the
first place. the fact that the state may pay
the sum apportioned does not mitigate the
evil because the tax, being assessed by
population and not by wealth. must, how
ever paid, operate the injustice which 1
have just stated Besides, as the duty or
right of the state to pay is not subject to
enforcement. the effect of the decision here
rendered is TO relegate the government of
the United States TO the paraIyzed condi-
ton which obtained during the confedera-
ton. and to remove which the Constitution
was adopted.
Rejected Theory.
"It is. submit, greatly to be deplored
that afte; more than one hundred years
of our national existence, after the govern
ment has withstood the strain of foreign
war and the dread conflict of civil strife,
and it's people have become united and
powerful this court should consider itself
compelled by the Constitution to go back
to long repudiated and rejected theory
of that instrument by which the govern
ment is deprived of essential attribute
OF Its being, necessary power of taxa
tion."
a few extemporaneous remarks made by
Justice White after the reading of his writ
ten opinion were very forcible, particularly
his references to the results of the war,
which were received with interest because
of the fact that he had fought in the con-
federate army. He spoke of the decision
as blow struck at the American people,
and said that the power of levying an in
come tax now left could only be exercised
with such injustice that legislative
body would dare attempt to exercise 1t,
for such an attempt would bring forward
bloody revolution. After the red throes of
civil war the glorious results of that war
were consecrated in great amendments to
the Constitution covering the land from
end to end like great shelterng mantle
The questions which the court decided to-
day had been passed upon by Congress re-
peatedly during the time of war. he said
anu IL lHe Qdu CNen 1OTeSetn the
possibility of such verdict the court
now rendered they would have made 1t
Impossible by another amendment to the
Constitution.
Justice Browns Dissent.
Justice Brown. in his dissent, said that
If the question what Is and what is not a
direct tax were now for the first time
presented, he should entertain grave doubt
whether in view of the definitions Of a d.
rect tax given by the courts and writer's
upon political economy during the present
century 1t ought not to be held to apply
not only to an income tax, but to every
tax, the burden of which is borne both i'm
med!ately and ultimately, by the person
paying 1t. 1t does not however follow
that this Is the definition had in mind by
the trainers of the Constitution.
THE decisions Of the court" said he
consistent and undertaking they are
and extending over nearly century of our
national life, seem TO me to estab lish a
canon of Interpretation which it is now too
late to overthrow. or even to question. If
there be any weight at all to be given to
the doctrine of stare decisis. 1t surely
ought to apply to theory of constitutional
construction which has received the deliber-
ate sanction of this court in five cases and
upon the faith of which Congress had en-
acted two income taxes at times when, in
Its Judgment, extraordinary sources of rev.
enue were necessary to be made available
Even a century of error may be less
pregnant with evil to the state than long
deferred discovery of the truth. 1 cannot
reconcile myself to the idea that adjudica-
tons thus solemnly made, usually by a
unanimous court, should now be set aside
by reason of doubt as to the correctness
of those adjudcations, or because we may
suspect that possibly the cases would have
been otherwise decided, If the court had
had before it the wealth of learning which
has been brought to bear upon the cons.d-
GRAFTON of this case
Danger to Liberty.
Justice Brown, in conclusion, said:
at is difficult to overestirate the i'm
portance of these cases. 1 certainly can
not overstate the regret 1 feel at the dis
position made of them by the court. 1t
is never a light thing to set aside the de-
hberate will of the legislature, and, in my
opinion, 1t should never be done, except
upon the clearest proof of it's conflict with
the fundamental law. Respect for the
Constitution will not be inspired by q mar
row and technical construction which
shall limit the necessary poyyars Of Com