The Savannah morning news., 1902-08-13
AFTER MANY YEARS
ODIUM MAY BE LIFTED FROM IN
NOCENT SHOULDERS.
WHO KILLED THE INCOME TAX
WAS 1T JUSTICE sHIRAS OR WAS
1T JUSTICE GRAYs

Epon the Retirement of the Latter
and the Approaching Retirement
of the Former the Statement Is
Made That the Famous Change of
Vote Was Not That of MIR. Justice
Shirns, but of the Recently Retired
Justice.
Washington, Aug. 12.-Mr. Justice
Gray's voluntary retirement from the
bench of the Supreme Court of the
United States revives the scandal
growing out of the famous decision in
the income tax case, which involved
the name and integrity of Mr.. Justice
Shiras.
Judge Shiras was accused of chang
ing his vote on the final decision, de-
claring the income tax unconstitu-
tional He has been openly denounced
in the halls of Congress, on the stump
by politicians who favored the tax,
and IN public places as being unworthy
OF membership in the highest judicial
tribunal of the land.
1t Is dSSSTIe0 by lIOSS VIII dIc IA
position to know, that it was not Judge
Shiras who changed his vote on that
memorable occasion, but another, mem
Der of the court, and the finger of sus
picion points at Mr.. Justice Gray. One
Of the traditions of the Supreme Court
is to the effect that no affirmation or
denial is ever given by members IF the
court of the secret deliberations or con-
clusion in the conference room. During
all these years the original story based
entirely upon inference, k1e legal and
the political world has 1abored under
the impression that 1t was Mr. Justice
Shiras, of Pennsylvania, who, at the
eleventh hour, changed his vote 80 that
the court stood 5 TO 4 against the in
CT me tax.
Since the retirement of Mr.. Justice
Gray and the probable early retire.
ment of Mr.. Justice Shiras, the disclos-
ure is made by those who know, it was
not Judge Shiras who changed his vote
and his colleagues on the bench will
not say So 1t is possible that no Off
ciai statement from the court on this
subject will ever be obtained, but there
are circumstances recalled In exclusive
Supreme Court circles, which throw a
= neW light "a 5s5a what has herstofore
been dark secret.
Here are the circumstances which
relieve Judge Shiras from the odium
so long attached to him in connection
with the income tax decision. When
the case was first argued only eight
judges sat on the case. When the
decision was announced in open court
the chief Justice stated that the court
was equally divided. No explanation
of the vote is customary and the pub
lie was left to guess as to the details
of the vote. All the judges excepting
Judges Gray, Shiras and Brown de-
livered. individual opinions. Thus the
conclusion was reached that those
who voted in favor of the income
tax were Associate Justices Brown
Harlan; Gray, and White. Those
against it were Chief Justice Fuller,
and Justices Field, Brewer and Shir-
as.
A rehearing of the case was or
dered before full bench and Mr.
Justice Jackson, a Democrat, who had
been ILL., sat in the case on it's sec
ond hearing. When the decision WAS
rendered it was found that the tax had
been declared unconstitutional by a
vote of to a. Judge Jackson an
nounced the reason for his vote, so
there was no doubt as to the views
of at least six members of the court
manned silent, and as the final result
could only have been reached by a
change of one of those three
votes, suspicion rested upon
Judge Shiras, because 1t was said that
he was a Corporation lawyer" it
might have been said with equal as
surances that he was originally op-
posed to the tax for the same reason.
lie was against the tax, first, last and
all the time.
The decision of the court and the
methods by which 1t was supposed to
nave been reached, created a political
sensation all over the country, and
Judge Shiras was held up to censure
as the man who reversed himself at
the demand Of the moneyed interests
those who now recall the dramatic
circumstances attending the rendering
OF that famous decision, are remind
ed' perhaps for the first time, that Mr.
oustlce Harlan created a sensation in
tne court room by the vigorous and
dramatic manner in which he deliv-
cred his dissenting opinion
1t may have escaped the notice of
some Who were present, but close OBJ
servers will remember that Judge Har-
lah' In an almost unmistakable man
ner, Identified and pointed out the
member of the court who had changed
ms opinion. When Judge Harlan was
Ieferring in vigorous and emphatic
terms to the sudden change of heart
upon the part of a member of the
court, who had previously favored an
income tax, he turned and glared
Hefeely at Mr.. Justice Gray. The
force of this circumstance is drawn
rom the fact that at that time Judge
ohiras sat on the left of the chief JUS
uce with Justice Harlan. while Judge
gray sat on the right side of the
chlef justice, with Judge Field. There
was apparently no doubt in Judge
TARTAN 5 ,ndnd as to which member of
me court had changed his vote, if
LOOKS and actions mean anything.
Enx,~E,S s. A.