Evening star., 1939-04-02

within the scope OF the Constitution. ana
all means which are appropriate, which
are plainly adapted to that end, which
are not prohibited but consist with the
letter and spirit of the Constitution, are
constitutional
Concluding, then, that the act creating
the bank was constitutional, Marshall
might have stopped in the belief that
he had struck sufficiently heavy blow
for the cause of nationalism. The Mary
land tax easily could have been thrown
out because it was discriminatory. but
the Chief Justice was not satisfied He
went on to belabor the horrifieo Jeffer-
sonians with the proposition, drawn pv
inference only from the Constitution.
that since the Federal power to create
and preserve the bank might be de-
stroyed by the States taxing power, the
States therefore could not exercise such
power.
This assertion of superior power in the
central government involved serious
ception-namely, the failure, will
full or otherwise, to recognize distinc-
ton between a destructive tax and what
| might be called normal tax.
Criticism Full and Wide.
Needless to say the decision, when its
full implications were realized, aroused
storm of criticism throughout the
country. Not the least outspoken OF
these critics was Thomas Jefferson, who.
according to Albert j. Beveridge. in his
Life of John Marshall" declared: 1.-The
| judiciary of the United States is the
subtle corps of sappers and miners con-
stantly working underground to under
| mine the foundations of our confederated
| fabric An opinion is huddled up
in conclave, perhaps by majority OF
one, delivered as if unanimous, and with
the silent acquiescence of lazy and timld
associates by crafty chief judge, who
sophisticates the law to his mind, by the
turn Of his own reasoning"
Be that as it may, there is no gainsay-
ing the fact that the second aspect Of
Marshall's decision served as the in
spiration for long chain of decisions
by the court which have established a
vast field of tax-free securities and sala-
| ries in spite of the 10th amendment,
| authorizing tax on income from what
ever source derived" Not until last week
was this barrier to equitable taxation
| substantially broken down.
Without going into the details of the
subsequent cases, it can be pointed out
that the doctrine of implied immunity
was extended to Federal officers and en-
ployes by a decision In 1842 in. the case
Of Dobbins VS.. Erie County Commission
ers. In 1870 the court in the we'll known
case Of Collector VS.. Day was called upon
by the Federal Government on State
Judge under the Civil War Income
| Tax Act.
| Marshall's Reasoning Enlisted.
TT is admitted that there is no express
provision in the Constitution that pro-
hibits the General Government from
taxing the means and instrumentalities
of the State, nor is there any prohibit
ing the States from taxing the means
and instrumentalities of that Govern
ment. In both cases the exemption rests
upon necessary implication and is up
held by the great law of self-preserva-
ton; as any government, whose means
employed in conducting its operations
is subject to the control of another and
distinct government, can exist only at
the mercy of that government. OF what
avail are these means If another power
may tax them at discretion?"
The scope of the implied immunity was
narrowed in subsequent decisions, but as
late as 1887 the court, in the so-called
Brush case, held unconstitutional an in
come tax FederaD on the salary of the
chief engineer of New York City's Bu-
reau of Water Supply. The majority Of
the justices declared that maintenance
of city's water supply constituted an es-
sential governmental function and ex-
tended the doctrine of tax immunity to
water department employees despite a
vigorous dissent by Justices Roberts and
Brandeis, pointing out the obligations of
the chief engineer as a citizen was Ito
contribute 10 the support of the gov
ernments (New York and the United
States) under whose joint protection he
lives and pursues his calling"
Leave Immunity Door Ajar.
In the carefully worded opinion de-
livered last Monday by Associate Justice
Stone. the court specifically overruled
former decisions $50 far as they recog-
nize an implied constitutional immunity
from income taxation of the salaries of
officers or employees of the National or
State Governments or their instrument
talities." The court, by implication, at
least, gave the impression other forms of
taxation like. perhaps, Federal tax on
income from State bonds, might still
meet with judicial disapproval.
This note Of caution, however, did not
still the fears of the conservative Justices
Butler and McReynolds, who, in dis
senting opinion. said: Futile indeed are
the vague intimations that this court
may protect against excessive or destruc-
tive taxation. Where the power to tax
exists, Legislatures may exert it to de-
stroy, to discourage, to protect or exclu-
sively for the purpose Of raising rev.
enue."
Thus did the minority of two sound,
perhaps for the last time, the essence OF
Chief Justice Marshalls 120-year old
philosophy. For the views of the court
are changing and, in the words of Its
newest member, Felix Frankfurter, "The