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the most convincing proof of the position of income known sources of revenue. If an income tax is intaxes drawn from the opinion of Judge Paterson in direct because it cannot be fairly apportioned, a this very case of Hylton v. United States. He rounds land tax is none the less so. out his opinion, the most elaborate of all those de- The Constitution says that taxes which are direct livered, with the quotation from Adam Smith which shall be apportioned. The Supreme Court say that has been already quoted but will bear repetition taxes which can be fairly apportioned are direct. here. “The impossibility of taxing people in pro- | There is an obvious discrepancy here. portion to their revenue by any capitation, seems to

III. have given occasion to the invention of taxes upon

The inquiries into the political history of the Conconsumable commodities; the State not knowing stitution and the opinions of political economists how to tax directly and proportionably the revenue

are not intended to furnish an independent basis of its subjects, endeavors to tax it indirectly by for any conclusion of constitutional law. They have taxing their expense, which it is supposed in most

been undertaken in order to offset erroneous imcases will be nearly in proportion to their revenue.

pressions which have unfortunately become the basis Their expense is taxed by taxing the consumable of conclusions of law. Their purpose is simply to commodities upon which it is laid out.” 3 Wealth clear the ground for a fair interpretation of the of Nations, 331, Rogers' ed.

direct tax clauses of the Constitution on their merits. From the passage itself we gather that the proof

The meaning of an important general provision that taxes on income were not a part of that scheme of the Constitution must be based, if possible, upon of public finance most familiar to the framers of the

a principle not on a circumstance. Now the cirConstitution, and that the first of English economists cumstance that the direct taxes most familiar to our viewed a tax on income as in principle essentially forefathers were poll anil land taxes is the slight direct,

foundation for the conclusion that these only are From the quotation of the passage by Justice direct taxes--and this despite the fact that the conPaterson we may infer his approval of its principles vention, as we have seen, discarded this specific and may be well assured that had the present law definition for the generic one-direct tax. been before him he would have pronounced it direct.

The meaning of the direct taxes of the Constitu(6) Another definition of a direct tax appears in

tion can be found only, and it can be found readily, the opinion in the Hylton case and in Pacific Insur- in the forces behind the Constitution, especially the ance Co. v. Soule. It is that direct taxes are such clauses in question. A familiar, perhaps the most as can be apportioned. This statement is literally familiar fact relating to the genesis of the Constitrue in this sense that indirect taxes, that is, taxes tution is that its adoption was due to the helplesson consumption, cannot be apportioned because

ness of the confederation in the matter of revenue. they are not finally paid by the person from whom | The quotas of the States were not paid and Congress they are collected but by the chance consumer of bad no means of compelling payment.

There were the commodity taxed. They are not apportionable those who sought a firm union as desirable, those because it is not known where their burden is to who accepted it as necessary, others who thought it rest. The statement is not literally true in regard neither desirable nor necessary. In the bitter to the income tax. It can be apportioned but not struggle over the Constitution two objects stand equitably. Indeed its apportionment would be a

out distinctly: One, the fear lest the Federal governmonstrous injustice to the poorer States.

ment should prove an instrument of tyranny; the We find then that the Supreme Court mean that other, the fear lest exactions for Federal purposes direct taxes are such as may be fairly apportioned. should be unequally imposed upon the States. This proves too much. Apart from a poll tax, which In Springer v. United States, Justice Swayne has I believe never been imposed by the Federal mentions that Gouverneur Morris expressed the government because of its intrinsic unfairness, direct hope, in the Constitutional Convention that the taxes are usually incapable of fair apportionment." clause relating to direct taxes would be stricken The Federal income from taxes down to 1886 was out, and continues: “All parties seem thereafter to in round numbers nine thousand one hundred and have avoided the subject. With one or two imtwenty millions of dollars; of this sum but twenty- material exceptions not necessary to be noted, it eight millions was raised by direct taxation (ex- does not appear that it was again adverted to in clusive of the war income tax). To the argument any way. It was silently incorporated into the draft that the framers of the Constitution could not have of the Constitution as that instrument was finally intended to have deprived the government of re-adopted.” If, as it would seem, these words are incourse to an income tax, which as we have seen was tended to convey the idea that the clause was adopted practically unknown to them, it may be replied that without much attention, the historical learning of they practically deprived it of recourse to the land

the justice is open to suspicion. This suspicion tax which was one of the most important and best ' is strengthened by his later remark in the same opinion. “The very elaborate researches of the community whence it is taken. Hence any exacplaintiff in error have furnished us with nothing tion upon property within a State over and above from the debates of the State conventions by whom the just proportion of that State is a detriment, the Constitution was adopted which gives us any whether the subjects of taxation are few or many. aid.

Hence we may safely assume that no such ma- That the inequality of the present tax is designed, terial exists in that direction, though it is known adds nothing to its unlawfulness, but draws attenthat Virginia proposed to Congress an amendment tion to the provision of the framers of the Constiturelating to the subject, and that Massachusetts, tion in so wording that instrument as to preclude a South Carolina, New York and North Carolina ex

combination of States from extorting tribute from pressed very strong disapprobation of the power other States. given to impose such burdens.”

To hold that the framers of the Constitution did This statement minimizes what was really an in

not intend to incorporate the great principle of the tense interest in the clause.

equalization of burdens among the States according The conventions of Massachusetts, South Caro

to their population, but merely a partial application lina, New Hampshire, New York and Rhode Island, in the case of heads and lands, is to pervert the recin ratifying the Constitution, proposed an amend ord of their achievement. ment to the effect that Congress, in levying direct

The present tax is comparatively mild, but it contaxes, should first require each State to pay its quota,

tains the principle which, if approved, may lead to the State to raise the amount by such means as it

a far different union of the States than that condeemed best. If the State neglected to pay, then

templated by the Constitution. If the principle of Congress should levy the direct tax.

this law is upheld, it might be lawful for Congress The conventions of North Carolina and Virginia

to impose upon a few States nearly the whole burwent further, recommending that when direct taxes

den of Federal expenditure. This could be done by or excises should be levied that each State should be

a carefully graded income tax. Whether it would informed of its quota, and if the State Legislature be done is immaterial, for it has ever been our well should pass any law effectual to raise the amount at

founded boast that the equal rights of our States are the time required by Congress, the Federal tax or

based on the plain provisions of the written law. excise should not be levied. The great interest in the clause relating to direct

FEDERAL COURTS-DIVERSE CITIZENSHIP-HABEAS taxes had, and could have had, but one source—the fear lest the Federal government should so levy

CORPUS.-A petition for a writ of habeas corpus by a forced contributions upon the resources of a State

citizen of one State seeking release from illegal rethat it should puy, through its inhabitants, more

straint by a citizen of another State, is a suit or than its proportion of the burden of the common

controversy between such parties; and the Circuit defense and general welfare. The term "forced

Court has jurisdiction, upon the ground of diverse contribution” is important. It was not intended

citizenship, to issue the writ and determine such conthat duties, imposts and excises should be appor

troversy, where the question involved is that of the tioned--so far as these are taxes on expenses they

petitioner's legal right to a discharge from restraint, are in a sense voluntary-so far as they are taxes on

and not one of discretion as to the place or characconsumable commodities they are not only voluntary, ter thereof. (King v. McLean Asylum, etc. [U. S. but are, as we have seen, incapable of apportion

C. C. of App.), 64 Fed. Rep. 331.) ment because they are paid by the chance consumer. TELEGRAPH COMPANIES Taxes which may be described as voluntary do not

EVIDENCE. – In an action against a telecreate an unavoidable burden upon the States, for graph company for injuries to a boy 10 years old, it their incidence, though varying greatly in the ser- appeared that the boy took hold of a broken call eral States, depends, after all, upon the habits and wire banging from the crossbar on one of defendtastes of the people. But a general tax upon real ant's poles, and received a severe electric shock; estate or personalty or upon income imposes in fact that there was an electric light wire on the pole, a definite, unavoidable burden upon the States below the crossbar; that the electric light plant was whence it is collected.

not owned by defendant; and that soon after the The administration of the present income tax law accident the broken wire was repaired: Held, that will inevitably result in the unequal distribution of evidence was admissible that nine mon hs after the the burden of Federal taxation among the States. accident there was no guard or dead wire between The fact that the tax is aimed at a few persons, and the call wire and the electric light wire, as was those the well-to-do, has distracted attention from usual in such cases, and that the call wire was then its far reaching burden. Any tax, no matter how defective by reason of long use and rust. (Western levied, forcibly diverts the money collected from its Union Tel. Co. v. Thorn (U. S. C. C. of App.), 64 normal channels of expenditure, and thus affects the Fed. Rep. 287.)





THE REVISION OF THE CODE. Code. “Why,” said the examiner with extreme frank-

ness, I don't know anything about that Code myself." THE revision of the Code of Civil Procedure is a

A successful lawyer, who was very clever in finding very obtrusive subject, and will undoubtedly technicalities in practice, said: “I have practiced receive considerable attention from the present Leg. law ten years, but I don't understand this Code of islature. Having made a general shake-up of all

Civil Procedure.” These expressions will doubtthe laws, it would seem proper for the Legislature less find hearty approval among many capable and

well-read lawyers. to attack the subject of procedure and practice

One of the strongest objections to the present next. That tbe Code of Civil Procedure should be revised

Code is its lack of continuity and completeness in and condensed is fully conceded by all, This Code many subjects, thus requiring the co-ordinate use is one of the most remarkable compilations in mod- of different and oftimes irreconcilable provisions to

meet the necessities of a given case. This is painern jurisprudence. It is remarkable on account of its great proportions rather than as a model exposition fully noticeable in the chapters on Surrogates, for

instance. This standing aggravation might be of procedure - of quantity rather than quality. It

ameliorated to some extent if we had some conveis a great mass of incongruous, heterogeneous mat

nient mode of finding readily all the provisions apter, upon which large excrescences have formed, until the original corpus is almost obscured from plicable to one or more subjects, but we have not,

and it might require extraordinary constructive view. Like the books of Talmud, or the Koran,

genius to devise some such method. A distinour Code almost passeth the understanding of average men. For years our lawyers and judges have half an hour in a vain search for a provision in the

guished lawyer of this city told me that he spent studied it patiently and severely, and have sub-Code of Civil Procedure which be was thoroughly jected it to the light of reason, to the rigid scrutiny familiar with, and had used on previous occasions. of analogy, but have been utterly unable to com

In approaching the subject of Code revision, we prehend its true meaning when taken together as

are confronted at the very threshold with a very sean exponent of the science of procedure.

It is a

rious and perplexing question. How shall we effect labyrinth through whose mazes the most subtle and

a thorough, systematic and satisfactory revision penetrating minds have wandered hopelessly.

without destroying or impairing the value of the Our courts have surrounded the Code with a

great number of decisions which have construed its wealth of profound learning, and yet what do we provisions? It would be a consummate piece of know of it? It has been pounded and expounded, folly-I was about to say vandalism—to make a reand subjected to the search-light of some 10,000 vision of the Code which will render these decisions carefully considered decisions, —and the average practically useless. After struggling along with lawyer, after many years of persistent research, and this Code for a long period, and overworking our a faithful analysis of the decisions bearing thereon, judges, and thereby impeding justice, in ascertainis tolerably well posted on some of the sections. ing an interpretation of its provisions, after we have Mr. Carter, in one of the ablest and most instruct- attained a fair solution of a great number of quesive and entertaining addresses* ever delivered in tions arising from its imperfections, we cannot afthis country—a production which cast a flood of ford to cast away the accumulated results of years light upon many difficult and perplexing legal of fruitful labor. Shall we shatter by one destrucproblems—pointed out the errors into which we had tive blow a monument of learning erected by patient stumbled through the absurdly constructed Code, study and research? Shall we overthrow and cast and he noted with apprehension the great number into oblivion the monuments of wisdom and truth of decisions which its imperfections have necessi- set upon enduring foundations? Shall we rob the tated. And this was several years ago,--and the Temple of Justice of its priceless treasures embelnumber of such decisions has constantly increased lished by the sages of jurisprudence? at an alarming rate. As illustrating this subject, it We adopted a Code of Procedure apparently conmay be mentioned that a book of several hundred sistent to our times and conformable to the enlightpages was compiled from a single section of the ened spirit of progressive ideas. We have em. Code.t

ployed the greatest legal talent of the age, both A bright young man, about to ake examination upon the bench and at the bar, to interpret this for admission to the bar, expressed to one of the Code, and to formulate therefrom a system of rules examiners grave doubts us to his fitness upon the of procedure consonant with the great principles of

natural justice and equity, and in harmony with our "The Province of the Written and Unwritten Law," an address delivered before the Virginia Bar Association, by Hon. modern institutions. The labors of these eminent James C. Carter, LL. D. + Section 829, Privileged Communications. " The Compe.

jurists have been greater, more intricate and pertency of Evidence," by William H. Morrill.

plexing, and the results are less perfect and symmetrical, because of the incongruous and unwieldy thus delaying justice through technicalities, we matter upon which they have worked. The Code should endeavor to construct one from the matehas been like a roughly designed and ill constructed rials already furnished us in great abundance by the edifice, and the work of the decorators has been, courts in construing the old code and along the necessarily, tedious and difficult. The task of re- lines laid down by these tribunals. Our procedure constructing crude and defective parts and polish- and practice ought to be well settled by this time. ing off rough places has occupied precious time, So what we need now is an authentic, uniform and which ought to have been devoted to finer and reliable exposition thereof in the shape of a code nobler work. The results attained by the inter- worthy of the name. preters of the Code are vastly superior, both in quan- I apprehend that there are but very few important tity and quality and in practical utility, than the questions arising under the mode of procedure and original work itself. We have in this great bulk of practice prescribed by the code which have not been decisions an unwritten code of procedure, which is the subject of careful and repeated adjudications much more valuable than the written Code.

by our highest courts--and by means of such adjuUnder such circumstances, it becomes our duty dications most excellent and uniform rules have been to profit by the experience of the past, and to con

enacted for our guidance in procedure and practice. serve the best results of that experience. We ought The courts, with all the facts before them, in a mulnot to abandon the old Code and set up a new one

titude of cases, covering almost every conceivable in its place. We ought not to attempt to patch up question, and after ripe experience, and in the exthe old Code-in short, to put new wine into old ercise of plenary powers and sound discretion, have bottles. The duty before us is very plain. We taught us the true and only rational mode of prohave a written Code, which, in practical use, has cedure, and upon their adjudications, conspicuous proved to be crude, unreliable and productive of in hundreds of reports, we should found a Code of vexatious litigation and grievous delays. This Code Civil Procedure which will be like a vestal light to was largely an experiment. It was not the product illumine the devious and labyrinthic pathways of of time and ripe experience, but a creature of the legal procedure. spirit of innovation. It was simply a skeleton of

Troy, N. Y., February 6, 1895. reform procedure turned loose to fatten upon the hapless victims which fell within its relentless

Abstracts of Recent Decisions. grasp. “And what meat hath it fed upon!”

This Code was the product of two fertile minds, ALTERATION OF NOTE BURDEN OF PROOF.-The whose owners have gone to rest, and we have gently burden of proving that a note was altered after strewn the flowers over their graves and enveloped delivery is on the person who claims that the altertheir shades with the mantel of charity. Our ation was made. (Farmers' Loan & Trust Co., courts, after years of patient study and arduous la-Olson (Iowa), 61 N. W. Rep. 199.) bor, have constructed an unwritten code of pro

ATTACHMENT EQUITABLE INTEREST IN LAND. — cedure, which is an enduring monument of juris- A levy of an order of attachment on real property prudence. Now, the most rational method to pur. by posting a copy thereof is not effective, as against sue is to take this unwritten code, which bas been

third parties, when there is an occupant of such formulated to meet the exigencies of the times and

property. (Shoemaker v. Harvey (Neb.), 61 N. W. the peculiar requirements of specific cases, and con

Rep. 109.) struct therefrom a code which will be uniform and stable and conformable to the demands of the pro

BANKS PAYMENT OF CHECK TO UNAUTHORIZED fession, and with the speedy and orderly adminis

PERSONS.— Where the general fiscal agent of a buildtration of justice in the present and future.

In ef- ing and loan association, who, while not by its by-laws fecting this object we should retain only so much

the custodian of its funds, was the custodian of its of the old code as the decisions of our courts have securities, and authorized to make its collections and held to be proper and applicable in actual practice.

transact its banking business, deposits a check to In short, we should frame a code just as we would

the order of the association to his own credit, the

bank on which the check was drawn is not liable a treatise on pleading or practice-upon the authority and in harmony with the decisions of the

for his missapplication of the money, though by the courts. Then we should have a code which the by-laws of the association the treasurer was the only courts will not have to construe and make over

person who could pay out its funds. (Gate City again piecemeal—“line upon line, precept upon

Bldg. & Loan Ass'n v. National Bank of Commerce precept; here a little and there a little.” Instead [Mo.), 28 S. W. Rep. 633.) of framing a code and then asking the courts to CARRIERS OF PASSENGERS perfect it and supply omissions and discrepancies, I LIGENCE. -A passeger who unuecessarily and negli





gently exposes himself to danger while alighting denying the location as claimed by plaintiff because from a train is guilty of contributory negligence, a surveyor, in the presence of defendant, ran the even though he does not know of the danger to line, in accordance with a deed to defendant, as which he is exposed. (Illinois Cent. R. Co. v. claimed by plaintiff. Lovelace v. Carpenter, [N. Davidson, [U. 8. C. C. of App.), 64 Fed. Rep. 301. Car.], 20 S. E. Rep. 511.

CONSPIRACY PLEADING - A complaint in an FEDERAL COURTS-CIRCUIT COURT OF APPEALS--action for criminal conspiracy which alleges that JURISDICTION.—The United States have a right to defendants were members of a brewers' association appeal to the Circuit Court of Appeals from an adformed to compel retailers to pay accounts due such verse judgment in the Circuit Court in a suit by a members, and that they combined to coerce plaintiff clerk of a district court to recover his fees under to pay a certain sum falsely alleged to be owing to act of March 3, 1887. (United States v. Morgan a member, and that, by notifying all such members [U. S. C. C. of App.}, 64 Fed. Rep. 4.) that plaintiff was so indebted, they prevented him

REVIEW OF DECISION OF STATE COURT.--A from obtaining a supply of liquor and from carrying Federal court cannot entertain jurisdiction of a bill on his business, which was thereby wholly destroyed, of review seeking a rehearing of a cause in a State is insufficient as not alleging absolutely that plaintiff court. (Graver v. Faurot (U. S. C. C., III. ], 64 did not owe such sum. (Schulten v. Bavarian Brew

Fed. Rep. 241.) ing Co., (Ky.], 28 S. W. Rep. 504.

GUARANTY-RELEASE OF GUARANTOR. -A guarCONTRACT CONSTRUCTION.- A condition, in a antor of the payment of goods furnished a merchant contract to purchase land, that a manufacturing com- is released by a delay of three years in notifying pany “transfer " its “works" to certain land, does him of default. (Myers v. Reedy [N. Car.], 20 S. E. require that the identical buildings and machinery Rep. 521.) be removed. Hanna v. South St. Joseph Land Co.,

INSURANCE-ARBITRATION.-An insurance policy (Mo.], 28 S. W. Rep. 662.

required, in event of a disagreement as to the CORPORATION

amount of loss, an appraisement. On demand of When a president and director of a cor- the insured, made without giving the insurer a reaporation, for whom no salary is provided, of his sonable time to accept the proofs of loss, appraisers own accord renders services to advance its interests, were appointed. No steps were taken looking to being a large owner of its stock and of the stock of an ajustment. Held, that the insurer could not other corporations which would be benefited by claim that the appointment was premature. (Brock its prosperity, without expectation on his part of

v. Dwelling House Ins. Co. Mich.), 61 N. W. Rep. 67. compensation, or knowledge on that of the corporation that he expected payment, he cannot recover PROFESSIONAL MISCONDUCT. therefor or for personal expenses connected there

WO recent decisions bring home to the minds of

solicitors the many ways in which their responMullen v. Ritchie, U. S. C. C., (Ohio), 64 Fed. Rep.sibilities are capable of abuse. The comparative 253.

rarity of this abuse among so many thousands of soCRIMINAL EVIDENCE

RES GESTÆ. licitors makes the public surprised that these things When a witness testified that deceased procured a can occur; on more mature reflection they feel still pistol and followed defendant, a statement by de- more surprised that their occurrence is not more ceased to the effect that defendant had better go, frequent. Professional misconduct is somewhat or defendant would whip or kill him, was admis- difficult to define tersely in a few words, for it is sible as part of the res gestæ. — Gibson v. State, comprehensive of not only what is misconduct for (Miss.), 16 South. Rep. 298.

the world in general, but also of all offenses against

the professional code of honor, whatever the proEMPLOYER AND


fession may be. In the case of Re a Solicitor; Ex Ages.—Where a contract of employment provides parte the Incorporated Law Society (Dec. 19, 1894, that it may be terminated by the employer on one

and Jan. 21, 1895), a solicitor prepared a postweek's notice, the employe is entitled to only one

nuptial settlement and inserted in it the names of week's salary as damages on refusal of the former

two trustees, who had never agreed to act and never to continue his employment. – Derry v. Board of executed the deed. At a later period the solicitor Education of City of East Saginaw (Mich.), 61 N. got an advance out of the trust money from the W. Rep. 61.

trustees, he giving no security in return, and in no ESTOPEL ---WHAT CONSTITUTES.-Defendant in an way informing the trustees that they were commitaction to establish a boundary is not estopped from ting a breach of trust. The committee of the In

with for which lie had no purpose to charge. (Mc- TWO



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