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tions and circumstances existing when the Constitution was formed and adopted. What were the surrounding circumstances? I shall refer to them very briefly. The only subject of direct taxation prevailing at the time was land. The States did tax some articles of personal property, but no established rule existed on the subject. By the eighth article of confederation the expenses of the government were to be borne out of a common fund or treasury, to be supplied by the States according to the value of the granted and surveyed lands in each State, such valuation to be estimated or the assess

levied a tax on the receipts of the telegraph company and the contention was made in the record and in this court that being void as to the receipts from inter-State commerce, the act was wholly void. But this court answered no. So, in the other cases of Huntington v. Worthen, Allen v. Louisiana, and, last, in Field v. Clark, 143 U. S., where the court said, unless it be impossible to avoid it, a general revenue statute should never be declared inoperative in all its parts because a particular part, relating to a distinct subject-matter, may be invalid. A different rule might be disastrous to the financial operations of the government to be made by the Congress, in such mode as ment and produce the utmost confusion in the business of the entire country. Here the distinction between the two branches of the income tax law are entirely separable. They rest upon different rules; one can be enforced without the other; and to hold that the alleged invalid portion, if invalid, should break down the valid portion, is a propo-estimate, was to make its requisition upon the resition which I think entirely erroneous, wholly unsupported either upon principle or authority.

they should determine from time to time. There was a direct tax. There was a direct tax directly laid upon the value of all the real estate in the country. The trouble with it was that the confederation had no power of enforcing its assessment. All it could do, after arriving at the assessment or

spective States for their respective quotas. They were not met. That, I say, was a direct tax in all its essential features, and the States have the same subject matter of taxation as the general source of

revenue.

What would

"Now, I say it is a proper assumption for us to assume that when the framers of the Constitution adopted the rule as to apportionment, they had reference to some subjects or species of taxation that prevailed generally throughout the States. It never was contemplated by them to reach by direct taxation subjects of partial distribution. be thought of a direct tax and the apportionment thereof laid upon cotton at so much a bale; upon tobacco at so much a hogshead; upon rice at so much a ton or a tierce? Would not the idea of apportioning that tax on property non-existing in a majority of the States, be utterly frivolous and absurd ?

"In considering the question whether a tax on incomes from real or personál estate is a direct tax within the meaning of those words as employed in the Constitution, I shall not enter upon any discussion of the decisions of this court, commencing with the Hylton case in 1796 and ending with the Springer case in 1880; nor shall I dwell upon the approval of those decisions by the great law writers of the country, and by all the commentators on the Constitution; nor will I dwell upon the long-continued practice of the government in compliance with the principle laid down in those decisions. They, in my judgment, settle and conclude this question now before the court contrary to the present decision. But if they do not settle, they certainly raise such a doubt on the subject as should restrain the court from declaring the act unconstitutional. No rule or canon of construction is "Not only was land the subject of general distribetter settled than that this court will not declarebution, but evidently in the minds of the framers of invalid a statute passed by a co-ordinate branch of the government, in whose favor every presumption should be made unless its repugnancy to the Constitution is clear beyond a reasonable doubt.

"I object to the opinion of the court in this case because it takes a wrong method, in my judgment, of arriving at the true meaning of the words 'direct tax.' What light can we derive from the opinions of text writers and of individuals who agree upon nothing? What right have we to construe the Constitution in the light of those subsequent diverse expressions? I know of none. To ascertain the true meaning of the words 'direct tax' or 'direct taxes,' we should have regard not merely to the words themselves, but to the connection in which they are used in the Constitution and to the condi

the Constitution, from the fact that it was the subject of direct taxation under the confederation. But at the time of the adoption of the Constitution there was, with the single exception of a partial income tax in the State of Delaware, no general tax on incomes in this country, nor in any State thereof. Did the framers of the Constitution look forward into the future so as to contemplate and intend to cover such tax as was then unknown to them? I think not. It was ten or eleven years after the adoption of the Constitution before the English government passed her first Income Tax Law, under the leadership of Mr. Pitt. The question then arose, to which the chief justice has referred, whether, in estimating incomes, you could look or have any regard to the source from which it sprung. That

question was material, because, by the English Loan Act, it was provided that the public dividends should be paid free of any tax or charge whatever, and Mr. Pitt was confronted with the question on his Income Tax Law whether he proposed to reach, or could reach, income from those stocks. He said the words must receive a reasonable interpretation, and that the true construction was that you should not look at all to the nature of the source, but that you should consider dividends, for the purpose of the income tax, simply in the relation to the receiver as so much income. This construction was adopted and put in practice for over fifty years without question. In 1853, Mr. Gladstone, as chancellor of the exchequer, resisting with all his genius the effort to repeal that income tax, said, in a speech before the House of Commons, that the construction of Mr. | Pitt was undoubtedly correct. These opinions of distinguished statesmen may not have the force of judicial authority, but they show what men of eminence and men of ability and distinction thought of the income tax at its original inception.

appor

"Now, I say that we must assume that the framers of the Constitution, in providing for the tionment of a direct tax, had in mind a subjectmatter, or subjects-matter, which had some general distribution among the States. Any other supposition would put them into an absurd position. Now, as to rents from real estate. By the by, it was assumed at that day by all the political writers that there was some relation between population and land. But there is no connection, direct or approximate, between rents of land and income, or personalty and population-none whatever. They did not have any relation to each other at the time the Constitution was adopted, nor have they ever had since, and perhaps never will have.

land-owner. The truth of the business is that the framers of the Constitution never contemplated anything to valuation of assessment. No student of the history of the government can arrive, I think, at any other conclusion. All the circumstances surrounding the formation and adoption of the Constitution lead inevitably to that conclusion.

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Again, we cannot attribute to the framers of the Constitution any intention to make any tax a direct tax which it was impossible to apportion. If it cannot be apportioned without gross injustice we may feel sure that it is a tax never contemplated by the Constitution as a direct tax. No tax, therefore, can be regarded as a direct tax in the sense of that instrument which is incapable of apportionment by the rule of numbers. The constitutional provision clearly implied in the requirements of apportionment that a direct tax is such and such only as can be apportioned without glaring inequality and manifest injustice and unfairness as between those subject to its burden. The most natural and practical case by which to determine what is a direct tax in the sense of the Constitution is to ascertain whether the tax can be apportioned among the several States according to their respective number with reasonable approximate justice, fairness and equality to all citizens and the inhabitants of the country who may be subject to the operation of the law. The fact that a tax cannot be apportioned without producing gross injustice and inequality among those required to pay it, should settle the question that it was not a direct tax within the true sense and meaning of those words as they are used in the Constitution.

"But it is said that this inequality was intentional upon the part of the framers of the Constitution, that it was adopted with a view to protect

equality among its own citizens in this government being intentionally adopted by the framers of its Constitution? Why, the very object of its formation was the reverse. The government is not dealing with States in this matter; it is dealing with its own citizens throughout the country irrespective of State lines, and to say that the Constitution, which was intended to promote peace and justice, either in its whole or in any part thereof, ever intended to work out such a result and produce such inequality between the citizens of a common country, is beyond all reason, in my judgment.

"Again, it is settled by well-considered authori-property-owners as a class. What an idea! Inties that a tax on rents and a tax on the land itself is not duplicate taxation. The authorities in England and in this country hold that a tax on rent and a tax on land are different things. Besides, the English cases, to which I have not the time or strength to refer, there is a well-considered case (Robinson v. County of Allegheny, in 7 Barr), when Gibson was the chief justice of that court, when a lease in fee of certain premises was made, the tenant covenanting to pay the rent on the demised premises. A tax was laid by the State on both land and rent, and the question arose whether the tenant, even under that express covenant, was bound to pay the tax on the land itself. The Supreme Court of the State held that it was not; that there were two separate and distinct and independent subjects-matter; that his covenant to pay on the demised premises did not extend to the payment of the tax charged upon the rent against the

"Where is this thing to stop? What is to be the end of the application of this rule, this new rule, as I say, adopted by the court? A tax is laid by the general government on all the money on hand or on deposit of every citizen of the government at a given date. Such taxation prevails in many of the States. The government has under its taxing

When laid, a

power the right to lay such a tax. few parties come before the court and say, 'My deposits were derived from the proceeds of farm products or from the interest on bonds and securities and they are not therefore taxable by this law. Το make your tax valid, you must apportion the tax

among all the citizens of the government according to the population of the respective States, taking to the population of the respective States, taking the whole subject-matter out of the control of Congress, both the rate of taxation and the assessment, and imposing it upon the people of the country by an arbitrary rule which has no equality.'

“In my judgment, the principle announced in the decision practically destroys the power of the government to reach incomes from the sources of them. There is to my mind little or no real difference between denying the existence of the power to tax incomes from real and personal estate and the attaching such conditions and requirements to its exercise as will render it impossible or incapable of any practical operation. You might just as well in this case strike at the power to reach incomes from the sources indicated as to attach these conditions of apportionment, which no legislature can ever undertake to adopt, and which, if adopted, cannot be enforced with any degree of equality or fairness between common citizens of a common country.

"The practical operation of the decision is not only to disregard the great principles of equality in taxation, but the further principle that in the imposition of taxes for the benefit of the government the burdens thereof should be imposed upon those having the most ability to bear them. This decision, in effect, works out a directly opposite result, in relieving the citizens having the greater ability, while the burdens of taxation are made to fall most heavily and oppressively upon those having the least ability. It lightens the burden upon the larger number in some States subject to the tax, and places it most unequally and disproportionately on the smaller number in other States. Considered in all its bearings, this decision is, in my judgment, the most disastrous blow ever struck at the constitutional power of Congress. It strikes down an important portion of the most vital and essential power of the government in practically excluding any recourse to incomes from real and personal estate for the purpose of raising needed revenue to meet the government's wants and necessities under any circumstances. I, therefore, am compelled to dissent from the decision of the court, and think that it is one most disastrous in its consequences."

Payments of interest on a note by the principal, without knowledge of the surety, will not, as regards the surety, take the note out of the statute of limitations. (Meitzler v. Todd [Ind.], 39 N. E. Rep. 1046.)

W

OUR JURY SYSTEM.

E were in hopes that something would be done at the late Constitutional Convention to adapt our jury system to the needs of modern society. We know very well that such matters ought as a rule to perience enough of the difficulty of securing from be left to the Legislature, but we have now had exsuch bodies the enactment of any real reform in a shape approved by competent men. For permanent and well-considered changes in the structure and procedure of the government, we have clearly to rely in the main on the constitutional conventions. Still, the evils of our jury system are so glaring, and so promotive of crime that it is surprising that neither the judiciary nor the bar have before now made any effort to reform it. In this city three weeks have been spent by a judge and the lawyers in finding twelve men to try a policeman for taking bribes. After these were found, two had to be excluded for fraudulent concealment of facts, so that the process is not yet over. In any other civilized country the whole affair would have been over in three days-one for preparation, one for trial, and the last for sentence in case of conviction. What is the reason for this astonishing difference?

It is in reality quite simple. In a country in which publicity reigns as it has never reigned anywhere before, in which the newspapers record crimes and offenses as they have never been recorded elsewhere, we have a rule that anybody who has heard about a crime and formed an opinion about it, is presumptively disqualified from trying the criminal. He has, the law says, to approach the case in ignorance about it caused by not reading the newspapers, or in the state of mental decrepitude which prevents one who reads of a murder from forming an opinion that anybody committed it. The acceptable juror has, in short, to be in a state of mind about the whole matter which it is difficult to find except among the grossly ignorant or the feeble-minded. Consequently the process of impanelling a New York jury in a notorious case is apt to consist in a search for twelve extremely illiterate or half-witted men a process which it would be impossible to witness anywhere else outside the comic opera.

The encouragement which criminals get from this system we need not point out. It increases very greatly the chance of escape which even the best jury trials hold out. The spectacle alone of the impanelling of a jury demoralizes the community and distinctly diminishes popular respect for the administration of justice, so that the escape of the criminals is by no means the whole of the evil it works. The worst of it is that it makes the attempt of the State to punish crime somewhat ridiculous. Clearly, nobody but the criminals and the

jury

fixers are interested in the continuance of the present state of things. The only obstacle such a reform would meet with in the Legislature would come from sheer frivolity or dislike of serious subjects; but this might be got over by patience and perseverance.

right to complain and wishes to get rid, would she effect this object by disestablishment? Here, again, we must guard ourselves by saying that on the question whether disestablishment is right or desirable or not, we offer no opinion. The question is: Would it rid the Church of the obnoxious section The truth is, that our jury law belongs to the age in the Divorce Act of 1857 (§ 58), which provides before newspapers, railroads and telegraphs. It is that, while by the previous section no clergyman in somewhat like the Supreme Court view that the only holy orders of the United Church of England and incomes are incomes from land, and that men pay Ireland shall be compellable to remarry a guilty capitation taxes with something that is not income. divorcee, any minister so refusing shall permit any However we may feel about it, we must do the other minister in holy orders of the said United work of the world, including the administration of Church, entitled to officiate within the diocese, to justice, with people that will read newspapers and perform the ceremony within his church? Is this form opinions about what they read. There is no section not binding stil! on the Church of Ireland other class fit to do the work of the world available. notwithstanding the act of 1869? If it is, the mere Even the judges read the newspapers. The old for- severance of the union between Church and State mula, "My attention has been drawn," is no longer would certainly not give Father Black, the Duke of available, even for them. Nobody can now pretend Newcastle and Lord Halifax what they want, whatthat he does not see what is in the newspapers till ever else it might do. Moreover, is the matter not somebody tells him about it. We have to do the one with which the Church is already competent to best we can with the modern man, seeing that the deal? Under the act of 1857 no divorcee can be reancient or medieval man no longer exists. The married in the Church of England unless he finds a earth, in fact, has to be "run" by the living, and clergyman willing to solemnize the union. Is it not not by the dead. We must take decent men's word competent for convocation to prohibit such remarfor it that they can try a criminal according to the riages altogether by a canon which would bind the evidence, in spite of the previous formation of an clergy without parliamentary ratification? It might opinion. We cannot go on much longer picking be held, however, that the possibility of finding a out imbeciles, knaves and ignoramuses to bring our willing clergyman under such circumstances is one malefactors to justice. The mere waste of time of of the rights of the laity which convocation cannot the judges who preside over these processes is a abolish or restrict without parliamentary ratificaserious injury to the public. Hundreds of import- tion. In that case, the only alternative open to ant causes wait for adjudication, not while one crimFather Black and his friends would be a direct asinal is being tried, but while a tribunal is being pre-sault on the Divorce Act in Parliament by a bill repared to try him.-The Nation.

pealing the section to which they object, and prohibiting the remarriage of divorcees from being

THE REMARRIAGE OF DIVORCED PER- clothed with any ecclesiastical solemnization.

INT

SONS.

NTO the moral and religious aspects of the controversy raised by Father Black's protest against the remarriage of a divorcee in St. Mark's Church, North Audley street, on Saturday last, we have no desire to enter. But the legal issues raised by the incident are of some importance. In the first place, we are not able to attach much weight to Father Black's objection that the officiating clergyman did not postpone the proceedings in consequence of his allegation of a just cause or impediment why the union should not take place, in terms of the fifth rubric in the service for the solemnization of matrimony in the Book of Common Prayer. This is not a point of substance if the proceedings were really legal, and we agree with Lord Grimthorpe that no court of law would listen to it for five minutes.

In the second place, assuming that the remarriage of divorcees is an evil of which the Church has a

The last point that we shall mention is this: Under the Marriage Registration Act could not a divorcee get himself remarried in a Dissenting chapel without the consent, or even against the wishes, of the minister, if he secured the assent of a single trustee, deacon or manager (cf. 19 and 20 Vict., ch. 119, § 11)? We put forward these points tentatively. The whole subject is invested with so much obscurity that no lawyer, at least, will be disposed to dogmatize upon it. They appear to us, however, to be worthy of consideration in the controversy.— Law Journal.

Where a contractor contracts for a city a work which, by reason of its nature and location, causes damage to another, which might have been prevented by the exercise of reasonable prudence as to the plan and location of such work, the contractor and the city are severally liable. (De Baker v. Southern Cal. Ry. Co. [Cal.], 39 Pac. Rep. 610.)

Abstracts of Recent Decisions.

ASSIGNMENT FOR BENEFIT OF CREDITORS.-Where the purchaser of chattels only pays part of the price, and agrees that title shall not pass to him until the residue is paid, his assignee for the benefit of creditors takes title thereto subject to the lien of the seller, even though the agreement was not recorded and the general creditors had no notice of it. (Hooven, Owens & Rentschler Co. v. Burdette [Ill.], 39 N. E. Rep. 1107.)

ATTORNEY AND CLIENT-FEES-CONTRACT.-Defendants contracted with a lawyer to prosecute their claim to a certain inheritance, he to retain out out of the proceeds his expenses and one-half the balance for his services, and he thereupon retained plaintiff to assist in the prosecution of the claim. Held, that plaintiff could not recover for his services from the defendants, since he had no contract with them. (Evans v. Mohr [Ill.], 39 N. E. Rep. 1083.)

CORPORATION-SUBSCRIPTION -ESTOPPEL.-- Part payment of their subscriptions to the capital stock of a proposed corporation does not constitute a waiver by the subscribers of the performance of conditions necessary to the formation of the corporation, or an estoppel to deny its corporate existence, in the absence of evidence that they attended the corporate meetings, and knew that such conditions were not performed. (Birge v. Browning [Wash.], 39 Pac. Rep. 643.)

CONTRACTS.-A corporation cannot avoid a mortgage given by its president and secretary, who are the only stockholders, to another corporation, upon the ground that the same person is president of both corporations. (Roy & Co. v. Scott Hartley & Co. [Wash.], 39 Pac. Rep. 679.)

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CRIMINAL LAW-HOMICIDE.- Where three persons form a design to kill a person, and one of them provokes a difficulty with him to furnish a pretext for killing him, he is equally guilty with the other two, who inflict the wounds. (State v. Paxton [Mo.], 29 S. W. Rep. 705.)

DIVORCE ALIMONY.-Where an action is brought for divorce and alimony, alimony may be allowed as an incident to the divorce; and where the parties are in equal wrong, and a divorce is refused, the court may make an order for the control and disposition of the property of the parties, or either of them, as may seem proper. (Johnson v. . Johnson [Kans.], 39 Pac. Rep. 725.)

EVIDENCE-ATTORNEY AS WITNESS TO WILL.Where the attorney who drew a will witnesses it, at testator's request, he is free, if the will is contested, to testify as to any fact concerning its exe

cution which he learned by virtue of his professional relation. (In re Wax's Estate [Cal.], 39 Pac. Rep. 624.)

HUSBAND AND WIFE-COMMUNITY PROPERTY.— Where a debt incurred by a husband in a sister State which does not recognize community property, would have been enforceable against property which from the nature of its acquisition would have been community property in this State, it is by comity enforceable in Washington against community property. (La Selle v. Woolery [Wash.], 39 Pac. Rep. 663.)

MASTER AND SERVANT-DEFECTIVE APPLIANCES. -A railroad company is bound to furnish and keep in repair proper handholds on the ends of car boxes for the support of brakemen, and it is negligence to send out a car the handhold on which is so bent that it can only be grasped at the ends. (Settle v. St. Louis & S. F. R. Co. [Mo.], 30 S. W. Rep. 126.)

MORTGAGE-ASSUMPTION BY GRANTEE. --Where a mortgagor conveys his equity of redemption to a grantee, who assumes the mortgage, the mortgagor, although as between himself and his grantee, he becomes a surety for the debt, still remains a principal debtor so far as the mortgagee is concerned. (Fish v. Glover [Ill.], 39 N. E. Rep. 1081.)

MUNICIPAL CORPORATION-ORDINANCE-DISTRIBUTING HANDBILLS.-An ordinance of a city prohibiting the distribution of such handbills on the streets as those receiving them would naturally throw on the street, and which are calculated to frighten or endanger horses, is a valid exercise of the police power given to a city by its charter providing that the council may prevent any practice having a tendency to frighten horses, and the general welfare clause. (Wettengel v. City of Denver [Colo.], 39 Pac. Rep. 343.)

RAILROAD COMPANY-INJURY TO BRAKEMAN. The maintenance by a railroad company of a bridge across its track at such a height as to endanger the lives of brakemen in the discharge of their duty on the top of its freight cars is wilful negligence. (Cincinnati, N. O. & T. P. Ry. Co. v. Sampson's Adm'r [Ky.], 30 S. W. Rep. 12.)

WILLS CONTEST.- Where a physician, who knew testatrix for several years, and attended her in her last sickness, testifies fully as to her condition on the day the will was executed, stating that her mind seemed clear, and that she answered all questions intelligently, and appreciated everything that was going on about her, he may state that, in his opinion, she was competent to make a will. (McHugh v. Fitzgerald [Mich.], 61 N. W. Rep. 354.)

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