Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1901-06-06
A CASE FOR, ,REARGUMENT.
Nav yorl. Evening Post. May sl.t.

y
The more the decision Of the Supreme
Court In the insular cases 10 studied,
the less satisfaction 1t gives to any
body. 1t left unsettled MS much as it
sett ed, and in what 1T purported to
settle resort was had to violent foro-
ing Of opposite arguments 10 to q
mechanical, not chemical mixture
This result is that even so good an
Administration newspaper as the New
ork Times, which hoped for and ac-
cepted the decision giving Congress
unlimited power over our island pos
sessions, speaks of, the opinion OF tho
court as without intellectual or moral
weight" In fact, the entire press Of.
the country is busy pointing out or try
ing to explain away the Inconsistencies
of the seye al decisions, The Attorney.
General ia 10 doubt what the real effect
OF the decision is; 80 Is Secretary
Root, SO Is the PRESIDENT. There la
general and painful feeling among
lawyers that the decision was really
indecislon, and that the court went
upon the theory which Cardinal New >
man declared to be that. of all trim
ming minds, that ''Mistiness 10 tho
mother of reason. ttEs IS ~
Now, in these circumstances, we sub
NIT that 1t is highly desirable for the
Supreme Court to follow Its own pre-
cedent in the income-tax cases and
order reargument. On the Sth Of
April 1895, tho Supreme Court rendered
It's first decision ON the Constitutionality
Of the inoons tax, but this was as
hating and inconolusiye as ita present
decision In the insular cases 1t up
held Parts Of the Income-Tax law, dis-
allowed parts and was silent as 10
other parts. This left all parties dis
satisfied; and application was made
for rsarR ument When this was granted
and had, the court, as everybody knows,
arrived at elear-cnt decision on all
| points. 1,s ~ ~.
II will be remembered, also, that q
highly effective part OF Mr.. Choaie's
second argument was the use which he
made OF the partial decision OF the
court In Its fret opinion. II had de-
cided that tax on income derived from
land was unconstitutional, and the adj
yocate pressed home the reasoning that,
having gone 80 far, 1T must 20 farther,
as 1t finally did. And in the present
decision Of the Supreme Court simis
lar opportunity is offered to build up a
| powerful argument OK concessis. We
will briefly Indicate it,
lie the opinion read by Justice White,
Justices Shlras and McKenpa concur
ring, he said:
''If that island (rorto Rico) was a
part of the United States, the duty was
repugnant to the Constitution, since
the authority TO levy an import duty
conferred by the Constitution on Con,
gress does not, as have conceded, in-
clude the right to lay such burden on
goods coming from ono to another part
OF the United States. y
Now, who is to decide whether Porto
iRico Is part of tbs United StatesS
i The Supreme Court, of course. Well,
the Supreme Court had decided, that
very afternoon, that Porto Rico is a rart
OF the United States. The decision Id
the DE Lima case. read by Justice
Brown with the concurrence OF five
other justices making the court G to 8
on this loint), held that territory &C.
ouired by treaty is acquired ms ahso-
lutely as II the annexation were made
by act Of Congress, Texas and
Hawaiil, that, by the ratification o!
the Treaty of Paris, the island became
territory Of ths United States, y aud
that, therefore, the duties were
Illegally exaoted, ,oes sy,s.5.q.
4 What Justice White and those who
1 ppuNuhic t Wtbh dibf WIS
TO upset o., decision, of the Supreme
Court within an hour or so of the time
il had been rendered. The doctriue 81
stare decisis did not stare for one after,
noon. IN, y" said Justice White al
8. 10 p. NJ, porto Rico was part Of
the United States-" But, your honor,
the court of which you are an ornal
ment decided only an hour and q
minutes ago that it is part of the
! United States. II the court can reverse
itself with this lightning speed,
may 1t not turn squarely about on its
present decision before the ink dries or
, it's opinions?" Justice White was per
fectly frank about what was going On.
In his dissenting opinion in the DE
Lima CASE he bluntly announced thai
the court was about to undo its work in
that case, and would reverse itself in q
few minutes. So 1T did. hut what ar
astonishing performance for the highest
court in the land
Suppose the De Lima case had beer
decided last instead of first Then thai
, would teye reversed the decision In tbs
Dcwnes case, and the court would have
held the Porto Rican tariff invalid
Surely, we do not like to think OF thu
? effect Of two judgments Of the Suprem,
Court, read on the same day, depend
ing wholly upon the order in which
they are read. II is too much like on.
set OF judges getting the DROP on th,
other. or Importing into judicial mat
tiers the traditional value 4 of th,
: woman q slast word. - What It al
grew out of Is perfectly clear Th,
: Judges were hop,lesaly at variance
They wrote separate and conflicting
opinions, and passed them around Il
I be criticised and cut up by each other
Then it was suddenly discovered tina
! there was a surface argument 10 con
( clusion-- though reached by totally ire
Z ooncilable guments-between Justice
Brown, Gray, Mokenna, Shiras, ane
: White. and that, il they were shrewt
: enough to read their decision last
thereby upsetting at 8. 10 previous de
' cision rendered at l. So, IL would stant
as the decision of the court
/. II this 10 not a plain case for recon
l sideration, rehearing and reargument
there never was one. The fret incom,
tax decision was model OF lucidlt,
= and logic compared with the limping
= tbs obscure, the inconsequential snl
self contradictory opinions In the 10
I; Hular CASES. The glaring and instan
taneous reversal Of itself by the cour
= which We have pointed out could b,
i used with deadly eieot by counsel in
fresh argument. That is what Is needed
argument on the law and Constitu
tion, not orations about "oonse
4 quences, not assertions that this is
i. sovereign nation" and can therefor
!. do what the Constitution says it eau