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levied a tax on the receipts of the telegraph com- m- tions and circumstances existing when the Constipany and the contention was made in the record tution was formed and adopted. What were the and in this court that being void as to the receipts surrounding circumstances? I shall refer to them from inter-State commerce, the act was wholly very briefly. The ovly subject of direct taxation void. But this court answered no. So, in the prevailing at the time was land. The States did tax other cases of Huntington v. Worthen, Allen v. some articles of personal property, but no estabLouisiana, and, last, in Field v. Clark, 143 U. S., | lished rule existed on the subject. By the eighth where the court said, -unless it be impossible to article of confederation the expenses of the governavoid it, a general revenue statute should never be ment were to be borne out of a common fund or declared inoperative in all its parts because a par- treasury, to be supplied by the States according to ticular part, relating to a distinct subject matter, the value of the granted and surveyed lands in each may be invalid. A different rule might be dis- State, such valuation to be estimated or the assessastrous to the financial operations of the govern- ment to be made by the Congress, in such mode as ment and produce the utmost confusion in the they should determine from time to time. There business of the entire country. Here the distinction was a direct tax. There was a direct tax directly between the two branches of the income tax law laid upon the value of all the real estate in the are entirely separable. They rest upon different country. The trouble with it was that the confedrules; one can be enforced without the other; and eration had no power of enforcing its assessment. to hold that the alleged invalid portion, if invalid, All it could do, after arriving at the assessment or should break down the valid portion, is a propo- estimate, was to make its requisition upon the resition which I think entirely erroneous, wholly spective States for their respective quotas. They unsupported either upon principle or authority.

were not met. That, I say, was a direct tax in all “In considering the question whether a tax on its essential features, and the States have the same incomes from real or personal estate is a direct tax subject matter of taxation as the general source of within the meaning of those words as employed in the Constitution, I shall not enter upon any discus- “Now, I say it is a proper assumption for us to sion of the decisions of this court, commencing assume that when the framers of the Constitution with the Hylton case in 1796 and ending with the adopted the rule as to apportionment, they had refSpringer case in 1880; nor shall I dwell upon the erence to some subjects or species of taxation that approval of those decisions by the great law writers prevailed generally throughout the States. It never of the country, and by all the commentators on the was contemplated by them to reach by direct taxaConstitution; nor will I dwell upon the long-con- tion subjects of partial distribution. What would tinued practice of the government in compliance | be thought of a direct tax and the apportionment

with the principle laid down in those decisions. thereof laid upon cotton at so much a bale; upon · They, in my judgment, settle and conclude this tobacco at so much a hogshead; upon rice at so

question now before the court contrary to the pres- much a ton or a tierce? Would not the idea of apent decision. Bat if they do not settle, they cer- portioning that tax on property non-existing in a tainly raise such a doubt on the subject as should majority of the States, be utterly frivolous and abrestrain the court from declaring the act uncon- surd ? stitutional. No rule or canon of construction is "Not only was land the subject of general distribetter settled than that this court will not declare bution, but evidently in the minds of the framers of invalid a statute passed by a co-ordinate branch of the Constitution, from the fact that it was the subthe government, in whose favor every presumption ject of direct taxation under the confederation. should be made unless its repugnancy to the Con- But at the time of the adoption of the Constitustitution is clear beyond a reasonable doubt. tion there was, with the single exception of a par

“I object to the opinion of the court in this case tial income tax in the State of Delaware, no general because it takes a wrong method, in my judgment, tax on incomes in this country, nor in any State of arriving at the true meaning of the words .di- thereof. Did the framers of the Constitution look rect tax.' What light can we derive from the opin- forward into the future so as to contemplate and inions of text writers and of individuals who agree i tend to cover such tax as was then unknown to upon nothing? What right have we to construe the them? I think not. It was ten or eleven years after Constitution in the light of those subsequent di- the adoption of the Constitution before the English verse expressions? I know of none. To ascertain government passed her first Income Tax Law, under the true meaning of the words 'direct tax' or 'di- the leadership of Mr. Pitt. The question then arose, rect taxes,' we should have regard not merely to the to which the chief justice has referred, whether, in words themselves, but to the connection in which estimating incomes, you could look or have any rethey are used in the Constitution and to the condi- gard to the source from which it sprung. That


question was material, because, by the English Loan land-owner. The truth of the business is that the Act, it was provided that the public dividends framers of the Constitution never contemplated anyshould be paid free of any tax or charge whatever, thing to valuation of assessment. No student of and Mr. Pitt was confronted with the question on the history of the government can arrive, I think, his Income Tax Law whether he proposed to reach, at any other conclusion. All the circumstances suror could reach, income from those stocks. He said rounding the formation and adoption of the Conthe words must receive a reasonable interpretation, stitution lead inevitably to that conclusion. and that the true construction was that you should Again, we cannot attribute to the framers of not look at all to the nature of the source, but that the Constitution any intention to make any tax a you should consider dividends, for the purpose of direct tax which it was impossible to apportion. the income tax, simply in the relation to the receiver | If it cannot be apportioned without gross injustice as so much income. This construction was adopted we may feel sure that it is a tax never contemplated and put in practice for over fifty years without ques by the Constitution as a direct tax. No tax, theretion. In 1853, Mr. Gladstone, as chancellor of the fore, can be regarded as a direct tax in the sense of exchequer, resisting with all his genius the effort to that instrument which is incapable of apportionrepeal that income tax, said, in a speech before the ment by the rule of numbers. The constitutional House of Commons, that the construction of Mr. provision clearly implied in the requirements of Pitt was undoubtedly correct. These opinions of apportionment that a direct tax is such and such distinguished statesmen may not have the force of only as can be apportioned without glaring inequaljudicial authority, but they show what men of eni-ity and manifest injustice and unfairness as benence and men of ability and distinction thought of tween those subject to its burden. The most natthe income tax at its original inception.

ural and practical case by which to determine what “Now, I say that we must assume that the fram- | is a direct tax in the sense of the Constitution is to ers of the Constitution, in providing for the appor

ascertain whether the tax be apportioned tionment of a direct tax, had in mind a subject among the several States according to their rematter, or subjects-matter, which had some general spective number with reasonable approximate jusdistribution among the States. Any other supposi- tice, fairness and equality to all citizens and the tion would put them into an absurd position. Now, inhabitants of the country who may be subject to as to rents from real estate. By the by, it was as

the operation of the law. The fact that a tax cansumed at that day by all the political writers that not be apportioned without producing gross injusthere was some relation between population and tice and inequality among those required to pay it, land. But there is no connection, direct or ap- should settle the question that it was not a direct proximate, between rents of land and income, or tax within the true sense and meaning of those personalty and population--none whatever. They words as they are used in the Constitution. did not have any relation to each other at the time “But it is said that this inequality was intenthe Constitution was adopted, nor have they ever tional upon the part of the framers of the Constituhad since, and perhaps never will have.

tion, that it was adopted with a view to protect “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 equality among its own citizens in this government is not duplicate taxation. The authorities in Eng- being intentionally adopted by the framers of its land and in this country hold that a tax on rent and Constitution ? Why, the very object of its formaa tax on land are different things. Besides, the tion the reverse.

The government is not dealEnglish cases, to which I have not the time or ing with States in this matter; it is dealing with strength to refer, there is a well-considered case its own citizens throughout the country irrespective (Robinson v. County of Allegheny, in 7 Barr), when of State lines, and to say that the Constitution, Gibson was the chief justice of that court, when a which was intended to promote peace and justice, lease in fee of certain premises was made, the ten- either in its whole or in any part thereof, ever inant covenanting to pay the rent on the demised tended to work out such a result and produce such premises. A tax was laid by the State on both land inequality between the citizens of a common counand rent, and the question arose whether the ten- try, is beyond all reason, in my judgment. apt, even under that

ess covenant, was bound “Where is this thing to stop? What is to be the to pay the tax on the land itself. The Supreme end of the application of this rule, this new rule, Court of the State held that it was not; that as I say, adopted by the court? A tax is laid by there were two separate and distinct and independ the general government on all the money on hand ent subjects-matter; that his covenant to pay on or on deposit of every citizen of the government at the demised premises did not extend to the pay- a given date. Such taxation prevails in many of ment of the tax charged upon the rent against the | the States. The government has under its taxing

posits were derived from the proceeds of farm pro- W

power the right to lay such a tax. When laid, a

OUR JURY SYSTEM few parties come before the court and say, 'My de

E were in hopes that something would be done

at the late Constitutional Convention to adapt ducts or from the interest on bonds and securities

our jury systein to the needs of modern society. We and they are not therefore taxable by this law. To

know very well that such matters ought as a rule to make your tax valid, you must apportion the tax among all the citizens of the government according perience enough of the difficulty of securing from

be left to the Legislature, but we have now had exto the population of the respective States, taking such bodies the enactment of any real reform in a the whole subject-matter out of the control of

shape approved by competent men. For permanent Congress, both the rate of taxation and the assess

and well-considered changes in the structure and ment, and imposing it upon the people of the country by an arbitrary rule which has no equality.'

procedure of the government, we have clearly to In my judgment, the principle announced in the rely in the main on the constitutional conventions. decision practically destroys the power of the gov

Still, the evils of our jury system are so glaring, ernment to reach incomes from the sources of them.

and so promotive of crime that it is surprising that There is to my mind little or no real difference be

neither the judiciary nor the bar have before now tween denying the existence of the power to tax

made any effort to reform it. In this city three incomes from real and personal estate and the attach

weeks bave been spent by a judge and the lawyers. ing such conditions and requirements to its exercise in finding twelve men to try a policeman for taking as will render it impossible or incapable of any prac

bribes. After these were found, two had to be extical operation. You might just as well in this case

cluded for fraudulent concealment of facts, so that strike at the power to reach incomes from the the process is not yet over. In any other civilized sources indicated as to attach these conditions of country the whole affair would have been over in apportionment, which no legislature can ever un

three days--one for preparation, one for trial, and dertake to adopt, and which, if adopted, cannot be

the last for sentence in case of conviction. What is enforced with any degree of equality or fairness be

the reason for this astonishing difference? tween common citizens of a common country.

It is in reality quite simple. In a country in which “ The practical operation of the decision is not publicity reigns as it has never reigned anywhere beonly to disregard the great principles of equality in fore, in which the newspapers record crimes and oftaxation, but the further principle that in the impo- | fenses as they have never been recorded elsewhere, we sition of taxes for the benefit of the government the

have a rule that anybody who has heard about a crime burdens thereof should be imposed upon those bav- and formed an opinion about it, is presumptively dising the most ability to bear them. This decision, qualified from trying the criminal. He has, the in effect, works out a directly opposite result, in law says, to approach the case in ignorance about it relieving the citizens having the greater ability, caused by not reading the newspapers, or in the while the burdens of taxation are made to fall most state of mental decrepitude which prevents one who heavily and oppressively upon those having the reads of a murder from forming an opinion that least ability. It lightens the burden upon the larger anybody committed it. The acceptable juror has, number in some States subject to the tax, and places in short, to be in a state of mind about the whole it most unequally and disproportionately on the matter which it is difficult to find except among the smaller number in other States. Considered in all | grossly ignorant or the feeble-minded. Conseits bearings, this decision is, in my judgment, the quently the process of impanelling a New York jury most disastrous blow ever struck at the constitu- in a notorious case is apt to consist in a search for tional power of Congress. It strikes down an im- twelve extremely illiterate or half-witted men portant portion of the most vital and essential

process which it would be impossible to witness power of the government in practically excluding anywhere else outside the comic opera. any recourse to incomes from real and personal

The encouragement which criminals get from this estate for the purpose of raising needed revenue to system we need not point out.

It increases very meet the government's wants and necessities under greatly the chance of escape which even the best any circumstances. I, therefore, am compelled to jury trials hold out. The spectacle alone of the imdissent from the decision of the court, and think panelling of a jury demoralizes the community and that it is one most disastrous in its consequences.” distinctly diminishes popular respect for the ad

ministration of justice, so that the escape of the Payments of interest on a note by the principal, criminals is by no means the whole of the evil it without knowledge of the surety, will not, as regards works. The worst of it is that it makes the attempt the surety, take the note out of the statute of limita of the State to punish crime somewhat ridiculous. tions. (Meitzler v. Todd [Ind.), 39 N. E. Rep. 1046.) | Clearly, nobody but the criminals and the “jury



are interested in the continuance of the right to complain and wishes to get rid, would she present state of things. The only obstacle such a effect this object by discstablishment? Here, again, reform would meet with in the Legislature would we must guard ourselves by saying that on the quescome from sheer frivolity or dislike of serious sub- tion whether disestablishment is right or desirable jects; but this might be got over by patience and or not, we offer no opinion. The question is: perseverance.

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 still 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 mediaval 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, kraves and ignorimuses 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 crim-Father 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 pro

hibiting the remarriage of divorcees from being THE REMARRIAGE OF DIVORCED PER- | clothed with any ecclesiastical solemnization. SONS.

The last point that we shall mention is this: Un

der the Marriage Registration Act could not a diNTO the moral and religious aspects of the con

vorcee get himself remarried in a Dissepting chapel troversy raised by Father Black's protest against without the consent, or even against the wishes, of the remarriage of a divorcee in St. Mark's Church,

the minister, if he secured the assent of a single North Audley street, on Saturday last, we have no

trustce, deacon or manager (cf. 19 and 20 Vict., ch. desire to enter. But the legal issues raised by the

119, § 11)? We put forward these points tentaincident are of some importance. In the first place, tively. The whole subject is invested with so much we are not able to attach much weight to Father obscurity that no lawyer, at least, will be disposed Black's objection that the officiating clergyman did

to dogmatize upon it. They appear to us, however, not postpone the proceedings in consequence of his

to be worthy of consideration in the controversy.allegation of a just cause or impediment why the

Law Journal. union should not take place, in terms of the fifth rubric in the service for the solemnization of matri- Where a contractor contracts for a city a work mony in the Book of Common Prayer. This is not which, by reason of its nature and location, causes a point of substance if the proceedings were really damage to another, which might have been prelegal, and we agree with Lord Grimthorpe that no vented by the exercise of reasonable prudence as to court of law would listen to it for five minutes. the plan and location of such work, the contractor

In the second place, assuming that the remarriage and the city are severally liable. (De Baker v. of divorcees is an evil of which the Church has a Southern Cal. Ry. Co. (Cal.), 39 Pac. Rep. 610.)


Abstracts of Recent Decisions. cution which he learned by virtue of his profes

sional relation. (In re Wax's Estate [Cal.), 39 Pac. AssiGNMENT FOR BENEFIT OF CREDITORS.—Where Rep. 624.) the purchaser of chattels only pays part of the price,

HUSBAND AND WIFE-COMMUNITY PROPERTY.and agrees that title shall not pass to him until the residue is paid, his assignee for the benefit of cred

Where a debt incurred by a husband in a sister

State which does not recognize community propitors takes title thereto subject to the lien of the seller, even though the agreement was not recorded erty, would have been enforceable against property and the general creditors had no notice of it.

which from the nature of its acquisition would have (Hooven, Owens & Rentschler Co. v. Burdette [III.], been community property in this State, it is by 39 N. E. Rep. 1107.)

comity enforceable in Washington against commu

nity property. (La Selle v. Woolery [Wash.), 39 ATTORNEY AND CLIENT-FEES-CONTRACT.-De

Pac. Rep. 663.) fendants contracted with a lawyer to prosecute their claim to a certain inheritance, he to retain out MASTER AND SERVANT--DEFECTIVE APPLIANCES. out of the proceeds his expenses and one-half the -A railroad company is bound to furnish and keep balance for his services, and he thereupon retained in repair proper handholds on the ends of car boxes plaintiff to assist in the prosecution of the claim. for the support of brakemen, and it is negligence to Hield, that plaintiff could not recover for his servi- send out a car the hand hold on which is so bent ces from the defendants, since he had no contract that it can only be grasped at the ends. (Settle v. with them. (Evans v. Mobr (111.), 39 N. E. Rep. St. Louis & S. F. R. Co. (Mo.), 30 S. W. Rep. 126.) 1083.)


--Where a CORPORATION-SUBSCRIPTION- -ESTOPPEL.-- Part | mortgagor conveys his equity of redemption to a payment of their subscriptions to the capital stock grantee, who assumes the mortgage, the mortgagor, of a proposed corporation does not constitute a although as between himself and his grantee, he bewaiver by the subscribers of the performance of comes a surety for the debt, still remains a princiconditions necessary to the formation of the corpo- pal debtor so far as the mortgagee is concerned. ration, or an estoppel to deny its corporate exist- (Fish v. Glover [III.], 39 N. E. Rep. 1081.) ence, in the absence of evidence that they attended

MUNICIPAL CORPORATION-ORDINANCE-DISTRIBthe corporate meetings, and knew that such conditions were not performed. (Birge v. Browning

UTING HANDBILLS. --An ordinance of a city prohib[ [Wash.], 39 Pac. Rep. 643.)

iting the distribution of such handbills on the

streets as those receiving them would naturally CONTRACTS.-A corporation cannot :void throw on the street, and which are calculated to a mortgage given by its president and secretary, frighten or endanger horses, is a valid exercise of who are the only stockholders, to another corpora- the police power given to a city by its charter protion, upon the ground that the same person is presi. viding that the council may prevent any practice dent of both corporations. (Roy & Co. v. Scott having a tendency to frighten horses, and the genHartley & Co. (Wash.], 39 Pac. Rep. 679.)

eral welfare clause. (Wettengel v. City of Denver CRIMINAL LAW-HOMICIDE. - Where three

[Colo.), 39 Pac. Rep. 343.)

persons form a design to kill a person, and one of them RAILROAD COMPANY-INJURY TO BRAKEMAN. provokes a difficulty with him to furnish a pretext | The maintenance by a railroad company of a bridge for killing him, he is equally guilty with the other across its track at such a height as to endanger the two, who inflict the wounds. (State v. Paxton lives of brakemen in the discharge of their duty on [Mo.), 29 S. W. Rep. 705.)

the top of its freight cars is wilful negligence. Divorce-ALIMONY.-Where an action is brought (Cincinnati, N. (. & T. P. Ry. Co. v. Sampson's for divorce and alimony, alimony may be allowed Adm’r [Ky.), 30 S. W. Rep. 12.) as an incident to the divorce; and where the par

WILLS CONTEST.--- Where a physician, who ties are in equal wrong, and a divorce is refused, knew testatrix for several years, and attended her the court may make an order for the control and

in her last sickness, testifies fully as to her condidisposition of the property of the parties, or either

tion on the day the will was executed, stating that of them, as may seem proper. (Johnson v. John

her mind seemed clear, and that she answered all son [Kans.], 39 Pac. Rep. 725.)

questions intelligently, and appreciated everything EVIDENCE --ATTORNEY

that was going on about her, he may state that, in Where the attorney who drew a will witnesses it, his opinion, she was competent to make a will. at testator's request, be is free, if the will is con- (McHugh v. Fitzgerald (Mich.), 61 N. W. Rep. tested, to testify as to any fact concerning its exe- | 354.)




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