The Indianapolis times. [volume] (Indianapolis [Ind.]) 1922-1965, 1932-03-24
FIND
HOPES DASHED
|. BY HIGH court
Hughes and Roberts Align
With 'OId Guard in
Two Decisions.
RULING UPSETS GIFT TAX
BrandeiS Gives Outstanding
Opinion of Dissent in
Oklahoma Case.
BY RAY TUCKER.

ure of the supreme court to become
liberal" as a result Of President
Hoover's appointments is shown to-
day by that tribunals decisions up
setting the gift tax and Oklahoma's
statute exercising greater economic
control over private industry.
Liberals on Capitol Hill, who had
hoped that Chief Justice Charles
Evans Hughes and Justice owen J.
Roberts-Hoover appointees - would
align themselves with the advanced
school of thought frankly expressed
disappointment.
These decisions provided the first
broad opportunity for a test at the
present session, and the high hopes
aroused by last sessions trend van
ished
The only two members who
favored the estate tax on gifts made
within two years of death and Okla
homa's effort to minimize the dan
gers of ''unbridled competition" in
the ice industry were Justices Bran
deis and Stone. The new members,
Justice Benjamin N. Cardozo took
no part in the case.
Voices Historic Dissent
There was so much interest in the
Oklahoma case, in which BrandeiS
delivered what may become his
toric dissent, that the court today
received scores of calls for the print
led decision. In view of the federal
governments program for economic
assistance and control of industry,
the courts action with respect to
similar efforts by a state provoked
curiosity.
1t was recalled that Senator Will
liam E. Borah (Rep., Idaho, during
the debate on the reconstruction
finance corporation, expressed Won
derment as to whether it would be
held constitutional if carried to the
supreme court.
The Oklahoma case arose on a
statute requiring that ice companies
obtain certificates of convenience
and necessity such as public utilities
must have. The New State Ice Com
pany, which had invested 100000
in it's plant after complying with
the law, brought suit against Ernest
A. Lehman, who had started to
build an ice plant without getting
a certificate.
The court decided Lehman had a
constitutional right to engage in
business and that his right could
not be abridged by the Oklahoma
statute.
Asks Free Experimentation
Citing the latest depression statis-
tics produced during the senate
hearing on the La Toilette Costigan
direct relief measure, Brandeis de-
clared capitalism was believed by
some people to be threatened, and
"unbridled competition" was
principal evil.
He referred to proposals for eco
nonlic control as one means sug-
gested to solve the problem, and
urged the court not to prevent ex-
Fermentation along this line in any
of the forty-eight states.
AS did James Bryce in his Amer
lean Commonwealth" Brandeis
pointed out that the United States
was particularly fortunate, in that
its federated system furnished forty
eight separate laboratories for So
cial and political experiments.
He advanced the same idea long
held by former Justice Oliver Wen
dell Holmes. that the Constitution
should be interpreted in the light of
changing social and economic con-
ditions.
This court has the power to stay
such experimentation, he said. I'VE
may strike down the statute en-
'bodying it on the ground that, in
our opinion, it is arbitrary, capri
ciouS. or unreasonable but
in the exercise of this power we
ever should be on guard, lest we
erect prejudices into legal principles.
If we would guide by the light of
reason, we must let our minds be
bold"
Sutherland'S Views Differ
Brandeis also suggested that the
trainers of the fourteenth amend
ment, with its due process clause,
could not have meant that it should
act forever as a check on changes
necessitated by changing conditions.
But Justice Sutherland, expressing
the majority view declared that pre-
venting a state from transcending
constitutional limitations" did not
constitute challenge to experiment
tation.
Brandeis and Stone held in the
estate tax case that congress had
the right to enforce inheritance
taxes with safeguards against dis
tribution of fortunes in anticipation
of death.
But Sutherland, in the majority
ruling, pointed out that accidental
death and honest desire to make
gifts were not taken into considera-
ton in the law.