that this is varying the form without varying and over again that a tax on a broker or an imthe substance. It is treating a prohibition which is general, as if it were confined to a particular mode of doing the forbidden thing. All must perceive that a tax on the sale of an article imported only for sale is a tax on the article itself." What did the court mean, in McCulloch v. Maryland, by saying that a State law levying a tax in the shape of a stamp upon bills issued by the Bank of the United States was a tax upon the bank? What did it mean, in the case of Osborn v. Bank of the United States, by declaring that a State law requiring a payment of $5,000 or $50,000 before a bank could begin business was a tax upon the actual powers of the 'Federal government? The case of Weston v. Charleston is very conclusive on this point. There it was held that a tax upon the income of United States bonds was a tax upon the securities themselves, and equally inadmissible. Chief Justice Marshall and four of his associates held that, although Mr. Justice Thompson and Mr. Justice Johnson dissented on the ground that it was palpably an income tax, which the learned chief justice did not contradict. The case of Dobbins v. Commissioners is one of the most instructive cases on this very point ever decided. What was that? The commissioners of Erie county, in Pennsylvania, had a revenue cutter captain residing there, the captain of a Federal vessel. They were levying their annual taxes upon their citizens, and they said: "You have got this office from which you have received this salary, and we want $10.50 from you for that." What was the plea then in the court? Exactly the one now made here. It was insisted that it was not a tax upon his salary, that it was not a tax upon his office, but a tax upon the money in his pocket. What did this court say? Mr. Justice Wayne was not in the habit of using strong language, but your honors will find how sternly he condemned such a pretense as that. In Almy v. California it was held that a duty on a bill of lading was the same thing as a duty on the article which it represented. In Railroad Company v. Jackson it was held that a tax upon the interest payable upon bonds was a tax not upon the debtor, but upon the security, the bonds. Have not your honors held over porter that a license fee before he could handle an imported article in its original package was a tax on the imports which no State had a right to levy? I need not weary your honors further with cases. They are all set forth here on pages 28, 29 and 30 of our brief. "The value of property results from the use to which it is put, and varies with the profitableness of that use." (Postal Telegraph Co. v. Adams, 155 U. S. 688, 697). A tax upon the profitableness of the use is, therefore, a tax falling directly upon the value of the property. So I submit that a tax on rents is in substance a tax on real estate and should be made the subject of apportionment, as required by the Constitution in respect of all direct taxes. Is a tax It If your honors please, how in principle does the corpus of personal property differ from a piece of real estate? I own a house to-day and sell it to-morrow, and take as its consideration a mortgage on the same property for $10,000, the value of the house. upon the house one kind of a tax and a tax upon the proceeds of the house another? cannot be; it is impossible. There is no real or substantial difference between a general tax on personal and on real property. No such thing has ever been decided; no such thing has ever been hinted at. A tax on personalty has all the elements of a direct tax exactly as a tax upon real estate. It is directly imposed; it is presently paid; it is ultimately borne by the party owning it. There is no choice for him to escape from the tax but to abandon the property. There is no volition about it, as there is in the case of any consumable commodities upon which excises are laid. In contending that the income tax, if indirect, was not uniform, and hence was unconstitutional, Mr. Choate argued : There is no mistake as to what the meaning of the word "uniform" is as an essental quality as a duty, impost, or excise. It must operate alike upon the class of things or of persons subject to it. The class may be fixed and bounded by Congress in its discretion. It is for the courts to say whether this rule of uniformity has been applied within and throughout the class. The contrast or antithesis between the rule of apportionment prescribed for direct taxes and the rule of uniformity prescribed for "duties, imposts, and excises" was designed. The contrast was intended to be complete and perfect between each element of the two rules. The rule of apportionment was known and intended to be a rule of inequality. This inequality was inevitable and existed in the very nature of the compromise out of which it resulted. This inequality was recognized as certain to increase as one State grew in population faster than another; hence the requirement of a decennial census to correct this inequality, so far as that might do it. But there were features of inequality as between different States which were radical and incurable by any census. There was and there could be no such coincidence between population and wealth as the rule assumed, and the divergence from any approximate coincidence would grow, as it has grown with every census. The rule of uniformity, on the other hand, as applied to "duties, imposts and excises," was known and intended to be a rule of ap by those fundamental limitations inherent in the very power of taxation and indispensable in the government of a free people. At last, what Washington and Hamilton and Madison and all the other great national leaders had so long been contending for as the only possible basis of 66 a more perfect Union" was achieved, viz., power in the National Government to reach directly and not by requisition on the States, which had proved to be of no use, every man, every dollar, every thing, and every inch of land within the States or the United States; but it was no part of the plan of any of them that this power in the new government should be absolute or unqualified, except as to place and persons. As to place and persons it far and as wide as the territory of the United should forever remain unqualified and reach as States and touch every person and every thing therein. And so they proceeded to modify and to qualify this power, except as to its extent in place or space through the whole territory of the nation, and except as to its hold upon every person and thing, by prescribing the different measures by which the burden of the different kinds of taxes, direct and indirect, should be meted out. As to indirect taxes, the proximate and reasonable equality among those embraced in the class affected by it- everywhere and at all times and no changes of population or of wealth anywhere would or modification or qualification was applied by section 8. As to direct taxes, the measure was prescribed by section 2. could affect its force and effect. The constitutions of nearly all the States have adopted from the United States Constitu tion this rule of uniformity, and in its practical application the courts of all speak with one voice as to its meaning, that it is exactly that for which we contend. But there is another cardinal difference between the two rules which is even more radical and far-reaching and compels the construction of the rule of uniformity for which we contend. It must be observed that the first clause of section 8, Article I, taken by itself, gave to Congress the complete and unqualified power of taxation, only limited to national purposes, but wholly unlimited as to place. As it stood alone the power extended to every inch of the territory and to every person and everything within the dominion of the government created by the Constitution. As it stood alone Congress could have laid and collected taxes of every kind, direct and indirect, for national purposes, without regard to population or wealth or to State boundaries, restrained only lation and of the political relation of the gov And just here differences of geographical re ernment to the different divisions of the entire people confronted them, and these differences entered into and in fact formed the basis of the different measures prescribed for the laying of the two different kinds of taxes. rects our attention to the different geographical expressions used in the two rules by which the taxes were to be measured out: 66 among the States" and "throughout the United States,” wholly different measures. There were the thirteen States, all seaboard, and behind them a vast stretch of territory, occupied or unoccupied, explored or unexplored, which in due time, but not yet, would form new States of the Union. This vast territory was beginning to fill. Burke in one of his great speeches for America ten years before had remarked as unparalleled "the vast force with which population shoots in that quarter of the world." The political relations of the new government to the people in the old States and to those in the new Territories were to be wholly different. On the one hand the State governments intervened between the United States and their people, the States retaining all their powers not granted to the United States. On the other hand the relation of the government to the growing of the people of the Territories was direct and immediate. What constitutions, what laws would prevail in the future new States was wholly unknown, except that each was to have a republican form of government. As to representation in Congress and direct taxes taxes on property- the people in the Territories had little concern and would not have until from time to time new States were created. But the thirteen old States were in a hopeless conflict with each other -conflict as to both representation and taxation - which was only solved by the happy compromise resulting in section 2, that representation and direct taxes should be apportioned among the several States according to their respective numbers; new States as admitted were to come under that rule. Thus the Constitution, in prescribing the rule of measuring direct taxes, deals with the States and with the people therein. It allots to each State its aliquot part of the total amount to be collected according to numbers, and the quota of each is levied and collected from the property of the States, in substance though not in form, as other State taxes are collected. ent. In dealing with these the Constitution no longer dealt with the States or with the citizens through the States, but directly with the individual citizen — the individual thing to be subjected to the tax. It wiped out all State lines, ignored the States entirely, and went directly for the man or the thing, and whether he or it was found in a State or in the Territories or in the District of Columbia was all one. On all these alike the purpose was to provide for the exercise of the taxing power "throughout the United States" whenever it should be exercised at all. In each and every part of the territory of the United States the excise or duty laid or imposed must rest and operate. This direct relation between the nation and the individual citizen, by means of which the nation was to lay its hand upon the citizen without any regard to his State, was now and here for the first time attained. It had failed to be attained under the Confederation, because the States had stubbornly refused to grant it any power of taxation. It had failed under this very Constitution, as to direct taxes, because of the equally stubborn refusal of the States to permit them at all unless apportioned according to numbers. By what rule or measure, then, was this new power in the new government to be wielded or exercised throughout the United States? That was the question. The equality of all men before the law was the fundamental principle of the new government. It was this that dictated the rule of uniformity - not a nominal or formal uniformity, not a uniformity of plan or But as to taxes not direct—" duties, imposts method in the different States, but an actual and excises❞—the situation was wholly differ- and substantial uniformity in the nature and These, which had belonged absolutely to quality of the taxes so to be levied. There had the States and which they had persistently re- been an effort at such uniformity in respect to fused to part with, were now surrendered to direct taxes, but the quarrels and rivalries beCongress the imposts absolutely; the excises tween the States, driving them into the comand duties on consumable commodities to a promise of apportionment by numbers, had great extent because of the impracticability defeated and produced as to those an utter lack of any State maintaining them against competi- of uniformity. But here there were no States tion with other and adjoining States, and be- in the way. Provision could be made, and was cause of the "commerce" clause and the "im-made, in respect to these kinds of taxes for submunities" clause in the Federal Constitution stantial equality in the treatment by the governwhich cut them off from all manner of excises ment of all the people; in other words, for upon interstate commerce and upon incomers uniformity. from other States who could no longer be treated as foreigners. Of course, it was necessary for the Constitution not to attempt to legislate, but only to pre scribe the rule. It was necessarily to be left to Congress to select the subject of taxation, the class of things or persons or occupations on which the excise or duty should fall. It might make that class as narrow or as broad as it chose in its discretion, subject only to the limits inherent in the nature of taxation itself, but every man within the class must fare alike. There had been an infinite variety of excises as to the subject of taxation, infinite variety as to rates, and even distinction as to persons. It was well known that even as to persons there had been variety as to the same tax. In England, during the commonwealth, foreigners were always charged a double tax on the same imports, and this had been possible among the States in dealing with incomers from other States. It was to put an end to this pre-existing rule of variety which led to marked inequality and frequent oppression that the rule of uniformity was introduced; not as between the States or the citizens of States; for the States had and were to have absolutely nothing to do with it, but as between all citizens standing alike before the government and entitled to just and equal treatment at its hands. poor It is impossible to impute to the framers of this rule of uniformity the intention that, on the same identical article subjected to duty or excise, any one citizen, simply because of his age or size, or sex, or condition, or any other personal difference, should pay a higher or a lower rate of tax than any other citizen, or that, as an impost on the same article imported, the rich man should pay a larger or a smaller rate of duty than a man. In this respect all were to be treated alike in the laying of the new duties. In this sense every such duty or excise or impost was to be a uniform duty, excise, or impost, and this rule of uniformity securing just and equal treatment by the government was to prevail throughout the United States, wherever the authority of the government extended, and so, to make this absolutely certain against all possible doubts and contingencies, the clause was formulated as a limit or modification of the power to lay these duties, etc., "but all duties, imposts and excises shall be uniform throughout the United States," and every word of it is full of meaning. There is an active effort on foot in California to reform the system of courts at present in force in that State, and to relieve the Supreme Court from the final determination of all the appellate work of the State. With the everpresent doubt and suspicion in the minds of the lawyers of this State that the Court of Appeals were not sufficiently relieved by the Judiciary Article of the new Constitution, it may be well to give the simpler method which has been devised by John A. Wright, Esq., of the California bar. It will be noticed that the features of the scheme will be to prevent what, it is intimated, exists in California, namely, the influence of certain attorneys over some of the judges of the courts, and the proper supervision of any irregularities of practice which may come to the attention of the Court of Discipline, which is to be created, as the article demonstrates. The attempt of the measure to elevate the bench and bar, and to separate judicial offices from politics, is praiseworthy in its aim, and should receive considerate attention from the bar of other States. The San Francisco Examiner gives this outline of the plan, which, in theory at least, has much on its face to commend it: "The system, in brief, proposes to add two courts to those now in existence, and a third court on special occasions- one as a group of intermediate appellate tribunals or Courts of Appeal, to dispose finally of the greater part of the appellate busi ness that now takes up the time of the Supreme Court, and the others as Courts of Discipline for attorneys and judges. Under this system the main legal business of the State would be handled by a Supreme Court of five members, three Courts of Appeals of three members each for the three judicial districts of the State, and the Superior Courts organized as now. The main change in this part is the substitution of the three Courts of Appeal for the clumsy device of the Supreme Court Commission. To prevent the Courts of Appeal from becoming merely another stage on the way to a final determination of cases, as is their tendency, it is proposed to limit strictly the kind of cases that may be appealed from these courts to the Supreme Court, and make their decision final in most of the causes that can be brought before them. The appeal to the Supreme Court is directly from the Superior Court in cases involving constitutional questions, taxes, public offices, charters, franchises and criminal cases where the punishment is greater than imprisonment for five years. The mass of civil business and the other criminal business is to be carried from the Superior Court to the District Court of Appeals. This system is meant to reduce the time of litigation by taking the place of the hearing by the commissioners, the subsequent hearing by the Supreme Court in department, and the final hearing by the court in bank that often consumes so much time under the present management. But a greater change is made in the practice than in the organization of the courts. The judges are required to have all cases presented on oral argument in open court, no causes are to be decided solely on written briefs, the judges are to decide each cause presented before considering the next, each of the justices is to pronounce from the bench his decision and his reasons for it, and, finally, no rehearing is to be allowed. Only a lawyer can Only a lawyer can appreciate the magnitude of the changes that these provisions would bring about. It is stated on behalf of the propositions, however, that the prohibition of rehearings will lead lawyers to prepare their cases more thoroughly, that open oral argument will lead to a better understand ing of the facts, the law and the merits of the dispute by the justices, that the requirement that one cause shall be decided before another is taken up increases the chance of a just decision by forcing it to be made while the case is fresh in the minds of the justices, and that the requirement that each justice shall pronounce from the bench his opinion and the reasons for it increases the chance that he will have made the attempt to understand the case before he decides it. But delay of justice and inattention of justices that these provisions are supposed to meet are not the choicest defects of our present system. Greater evils come from the popular belief that corrupt men find their way to the bench and are common among those who practice at the bar. Mr. Wright's scheme includes a measure that he believes will correct this State of affairs by furnishing the machinery for getting corrupt men off the bench, vindicating those who are accused, but innocent, and purifying the bar of those who disgrace it. To this end he would form a permanent Court of Discipline within each of the three judicial districts, to be known as trustees of the bar. These trustees are to be nine or more in number, elected by the whole body of attorneys who have practiced a year or more, and to be chosen from attorneys who have been five years or more in practice. Their duty would be to make summary preliminary examinations into all public rumors which may have a tendency to impair respect for justice.' They may make an advisory report concerning judges, and in the case of attorneys may 'pronounce judgment of exoneration, warning, reprimand, suspension or removal from office, as the case shall seem to require.' In all investigations public prosecutors are to be provided. The ordinary Court of Discipline thus would have actual authority over only the attorneys. It would only investigate judges and judicial officers. For the trial of these it is provided that a Special Court of Discipline may be established at any time. The authority for calling it is widely distributed. The governor, or the chief justice, or any two justices of the Supreme Court, may call one of their own motion. Or, if the majority of the trustees of the bar, or an equal number of the members of the bar, or the same number of freeholders, or any judge or justice of a permanent court of record request it, they must convene the court without delay. In the case of a judge of a court of permanent record the Court of Discipline is to consist of twelve or more citizens, one-fourth to be judges, one-fourth to be trustees of the bar, one-fourth to be members of the bar in good standing, and one-fourth to be freeholders. The trial is to proceed with dispatch, and the court may exonerate, warn, reprimand or suspend from office the accused judge in the latter case to await action by the Legislature. Trustees of the bar and judges of courts not of record may, in addition, be removed from office. Such courts. would have the chance to play an important part in the field of law. If one had been in existence last year, for instance, doubtless Justice Harrison would have taken occasion to have his conduct in the Levinson case cleared up; Judge Levy would have asked for an inquiry into his record; Philbrook would not have been tried by the men he was accused of insulting, and Kowalsky might have had company on trial for disbarment. Another innovation is found in the subdivision that is intended |