*1 2Q6 See United States as earlier dates.

order the division & Co., 282 M., P. 311. P. R. U. S. Chicago, St. v. the order is void so effect, it that since (cid:127)But is said, by named period, it to a identified past far as applied been it never though of it had dates, that part future and, hence, applied the order when written for opera- it no time though specified must its be read fact Commission com- tion. But the mere be- some which were manded, single writing, things a. together yond not, its with others that were could power, or not erase from document either the dates the words our them change meaning preclude looking their or at and to the Commis- to see in what what extent manner at possess. Looking sion exercised the did power the older, I so far as it say words cannot directed days from thirty date, after its did not com- the division (2), rightly '§ 15 or that it can be set at ply naught with nature and of the evidence/sup- amount regardless porting it. and Mr. con- Holmes Justice

Mr. Justice Brandéis opinion. cur in this v. TAX COMMISSION OF

HOEPER WISCONSIN

et al. 15, October 1931.—Decided November No. 17. Submitted 1931. *2 Mr. B. Claire Bird was on the brief for appellant. *3 Reynolds, Attorney W. General of Wis-

Messrs. John on the for the consin, Harold M. Wilkie were brief Wisconsin, Tax appellee. Commission *6 the opinion Mr. delivered Justice Roberts Court. a of Marathon

Appellant, County, Wisconsin, resident year the 1927. Subsequently to his marriage married him receipt he of income taxable to under in- was statute of wife, tax the state. His during come the same income, received taxable composed a period, salary, a dividends, and interest and share the profits of a her with which husband had no partnership connection. against of incomes assessed The the appellant assessor a on the combined total of computed his and wife’s his separate incomes shown by returns, treating the aggre- as his gate ineome amount so ascertained and as- exceeded sum the sessed taxes which would have taxable been had their been due incomes separately as- procedure for the assessor’s authority sessed.1 sections of the act: following found in “ taxes In (2) (d) computing : Section 71.05 ... residing together by of taxes payable persons amount of the wife and family,

as members a the income be age shall eighteen years each child under of. be not father, added to of the husband or he living, family to that of the head of assessed him hereinafter The taxes levied except provided. -family, shall be such husband or head of payable any but if him be paid by against per- enforced *7 computation.” is within tax son whose income included the “ Section Married (4) (c): living together 71.09 persons as and join husband wife make returns or separate single joint in a In either case the tax shall be return. computed average the on combined taxable income. The exemptions for in provided (2) subsection of section 71.05 be shall allowed but once and divided and equally the tax paid by amount of due shall be each proportion the average that the of each bears to the combined average income.”

Appellant paid the tax under protest, and after comply- ing with requisite conditions instituted precedent, pro- so ceedings recover much thereof as was in excess of the

tax computed on his own separate He income. asserted the statute as applied that to him violates the Fourteenth The Supreme Amendment. Court of Wisconsin over- ruled this contention and affirmed a judgment for appel- question lees. is whether the state law interpreted deprives applied and the taxpayer of due process and of 1 This from resulted fact the provides the act for surtaxes graduated according to amount the of taxpayer’s the net income. While the excess would have been less if returns and assessments made under (4) had been section 71.09 -the total would still have been greater than the of sum' the husband’s and wife’s taxes if separately on assessed their individual incomes. says appellant of the law. equal protection

the him assess and collect from the done is to what state has income received his part by wife, upon a tax based the arbitrary discriminatory, and exaction is and and that such the guaranties. of constitutional violative consequently the property, At common law wife’s owned at the date any acquired or in manner thereafter, of marriage her Her earnings husband. and income are property will, for his, he at and he liable may dispose them her of a married Were status woman debts. Wis- law, which she had at common statutory consin that to her for income attribution of her income husband doubt, no But her would, justifiable. be owner- spouse’s and of her have been property control abolished ship laws, Women áre declared to state. have same, rights in the as men exercise of freedom suffrage, for contract, voting choice of residence purposes, jury service, holding office, holding conveying property, and children,, and in all custody respects.2 care and other ” Rights Under the title of Married Women “ Property estate, rents, it is a wife’s real- its issues enacted that shall her sole and' profits separate property be unmarried, subject she were and shall’ be dis- *8 of her and this true her posal personal is of husband;3 of marriage as whether owned at’ the date property well, acquired.4 may convey, or devise subsequently She or if real she were bequeath property, personal, and her unmarried, of disposal and her husband has right no thereof, may nor is it liable for his debts.5 Either spouse or the a convey his her to other or’create lien property earnings thereon in favor of The individual other.6 the 2 (1). 1929, Wis. Stats. '6.015 § 3 Ibid. 246.01. § 4 1929, Wis. 246.02. Stats. § 5Ibid. 246.03. § 6Ibid. 246.03. §

215 woman, accruing those from except of married labor every in his husband, for her or or performed employ payable subject her and are not separate property, are by him, in for his debts.7 She her may to control or liable sue his have the remedies name and all of an unmarried own in to her or regard separate property woman business her and is to earnings, to recover liable suit to a which judgment, may the rendition of be enforced her she property were unmarried.8 against separate in in law and the is then, fact, wife’s income Since, the her and in no degree separate fullest sense property question is husband, presented that of her whether his by tax, has an income-tax law to measure power state of but, by not his own income another. by part, stated, To thus what was said Knowlton problem Moore, 77, apposite: U. S. v. aside.from con- by some, express

“It be doubted restrictions, Congress taxation by stitutional whether the an of one with ar- property person, accompanied . rate tax fixed that the shall be with bitrary provision another, reference to the sum of property thus about which we bringing profound inequality have arising from noticed, would transcend limitations free conceptions government those fundamental which underlie all systems.” constitutional that,

We have no doubt because the fundamental which underlie our conceptions system, any attempt by person’s a state measure the on one or property reference to the property income of another is contrary due process law as guaranteed by the Fourteenth Amendment. That which not in fact taxpayer’s income cannot' be made by calling such Compare income. Nichols Coolidge, v. S. 531, U. 540.

7 Ibid. 246.05. § *9 8 Ibid. § 246.07.

216 the Wis- that provision say is incorrect

It reestablishes what retains or income tax statute consin marriage relation. Wis- formerly incident an was that of of the wife property consin has not made from the income her prop- made husband, her nor has it Nor has established husband. erty the income her B A’s or The tax for joint property effort to ownership. B owner of property income not make does state to effect such whether the has income, and power wholly irrel- in a case change particular a of ownership been made. Under the law evant no effort has when such any of the wife does at Wisconsin the income or to' extent become the of the any property moment it,'or title to any any He never has controls husband. That remains until the tax is of it. income hers part hers what continues to be after that paid, and left merely payment. state levies a tax it. What upon joint Wisconsin has done is tax as a that which under its law is ownéd and thus to separately secure a than sum of on higher tax would be the the taxes separate incomes. assigned court thought below two reasons which it objections

removed the constitutional application to the of the statute the instant case. It cited followed 673; the Income Tax Cases, Wis. N. W. 456; 135 W. question N. where the statute here in was 164, sustained on the that the ground under attack provisions are frauds necessary to prevent evasions by married persons, and stated the decision of this Court in Schlesinger Wisconsin, v. 270 U. S. was not with the views expressed Supreme. inconsistent Court Wisconsin its earlier To this of, decision. we cannot In agree. the' Schlesinger case this Court held invalid a statute for which, purposes tax, inheritance vivos, classified all gifts inter effective within six years of death, gifts made contemplation of death. To the *10 argument of the for such classification necessity pre- to evasions, [p. 240]: frauds it answered vent and was “ ‘A’ required That say, may is to be to to submit an Constitution this exactment forbidden seems readily in order to enable the State to necessary collect ‘ Rights B/ charges against guaranteed by lawful to so lightly treated; they federal Constitution are not be are this superior necessity. The State is supposed of deny process forbidden to due law or the equal pro- tection of the laws for any purpose whatsoever.’/ necessity cannot justify claimed otherwise unconstitutional' exaction. assigned justification second reason as a for the of the tax is it

imposition regulation is a marriage. of It is said that marital relation has always been a mat- ter state, of concern to the and has been the properly subject legislation of which classified! as a it distinct sub- ject regulation. suggested is It that a difference of treatment of married as single with compared persons be imposed greater amount of tax due to the and enjoyed by privileges the former, and, different if so, the discrimination would have a reasonable basis, and consti- classification. permissible tute This view Overlooks sev- In important eral considerations. the first as is place, state pointed above, has, except out in its social purely marriage from the taken status all aspects, the elements differentiate it from the single person. In which business and economic property, relations they are the hardly can be claimed that a saíne. It mere difference the taxable so alters social relations status one receiving a justify as to different measure for the tax. that the law a is clear Again, revenue and measure, regulatory imposing one taxes. It levies a tax on ” “ within person residing every state and defines .the ” “ “ including natural person word- persons, fiduciaries “ ” “ corporations and corporations,” and as including cor- or common companies, associations joint porations, stock on the incomes taxes graduated It lays law trusts.” It rates. at different corporations persons natural gross income regarding comprehensive its provisions and is in most exemptions, and allowable deductions the federal income acts in analogue of respects the pur that the act does not It is obvious force since 1916. relationships any person, port regulate the status *11 Arbitrary discriminatory and pro or natural artificial. them justified by calling be in cannot visions contained relationships the or which persons of special regulations The case of discrimination. object present áre the the legisla that the principle fall within where does the not against being a traffic or transaction as ture, prohibiting classification, a state, the of the makes reasonable policy be itself, power simply to do not to denied because its so article within the proscribed some innocent comes class Taxing 226 U. S. 204. Lynch, Extract v.Co. Purity of person property one for the another is a different mat the suggestion qua is no room for that ter. There the similarly and those situated the act a reason appellant a rather than tax law. regulation, able in support reasons of valid- Neither of the advanced the to applied appellant justifies the of the statute as ity The arbitrary exaction is and is resulting discrimination. process. of due a denial must and judgment be reversed cause remanded not inconsistent proceedings opinion. further with

for this

Reversed. Holmes, dissenting. Justice Me. from judgment a of appeal is an the Supreme

This sustaining the constitutionality of Wisconsin of Court a of under the laws the State. The appellant levied tax parties separate Both had incomes, and married a widow. A returns. tax assessed separate upon was made of both, belonged for the total both to appellant “In (2) (d), § him. R. Wis. 71.05 By computing S. and the amount of resid- payable persons taxes taxes of a together family, members income of the ing eighteen and the income of child under wife years each husband, be added that .of the or father, to or if age-shall tp of the living, head of the family he be and him except provided. as hereinafter assessed shall payable by taxes levied be such husband or. head but if not him family, paid by be enforced whose income against, any person is included within the § R.By (4) (e), 71.09 “Married computation.” S. together as husband and wife persons living may make join a return. single joint returns In separate tax shall be computed on the either case combined ,The income. average exemptions provided taxable for in (2) section 71.05 shall be subsection allowed but once divided the amount of tax equally due shall be in the proportion each paid by average income average bears to the each combined income.” The re- the incomes adding was increase the sult rate *12 and charge income tax to him with a plaintiff’s portion payable by Hoeper. tax otherwise Mrs. He of-the sets Amendment says Fourteenth and the that he up been has process of due law. deprived disposed be of as

This case cannot an attempt to take to property pay another person’s person’s one debts. the outcome of are a thousand of" years

statutes history. n against must viewed- the They background be of the husband earlier rules that and wife are one, and that- the husbandand that one as the took husband the wife’s he for her chattels was liable debts. They form a system none, with echoes of different moments, of which is en- titled to over the prevail other. The emphasis in other sections on separation interests make us deaf cannot to in the assumption, the quotéd, sections, .of community together spouses when two live and when usually each in- of each without the income benefit of get would the of the far the Constitution So as quiry into the source. to concerned, legislature power the has is United States and marriage be, consequences shall determine what the not shall it the or shall husband may provide that wife’s and shall rights property, have in his certain debts, that it enact may shall be liable for wife’s not his every on that he an income shall be liable for taxes his his life and to help pay will easier probability make over,, only bills. Taxation not command may consider but taxed. Corliss enjoyment of, actual the See property not 376, States, In Bowers, v. U. 378. some S. the chat- all, the became owner wife’s husband tels, any on from Constitu- marriage, without trouble the tion; ingenious argument would to show require and it that return the might there be a to law as it was 1800. all But for the statute, It a matter statute. is to there husband, belong taxed would be question would no about it.

I will a few superfluous. words that seem to me It .add away is said that has taken Wisconsin former character has marriage many istics of "the state. But it in so said it keeps words that one. this And when the legislature indicates that it means clearly accomplish to a certain result its power within to it accomplish, our business to any juris seem supply elegantia formula & Co., to require. Sexton Kessler 225 U. 90, v. S. 97. justified also its tendency statute prevent (cid:127) doubt, No if, evasion. held in Schlesinger was v. Wisconsin, 270 with regard U. measure S. then the Court, was no before reasonable relation there between the law evil, statute could not But upheld. be fact might reach innocent *13 it. people does condemn has been It decided too often open question, to be that administrative neces- sity may justify objects the inclusion innocent or trans-

221 Purity actions within a prohibited class. Extract Co. v. Lynch, 201, 226 S. 204. Ruppert 192, U. Coffey, v. 251 Shaw, 283. Hebe 264, U. Co. v. S. 248 U. 297, S. 303. 500; Corp. Oil Hope, Pierce 248 U. Euclid v. v. S. 498, Co., Ambler 388, U. S. 389. Tyler v. United 365, States, Milliken v. 497, 281 U. 505. S. States, United U. 15, S. 20. and Mr. Mr.- Justice concur Brandéis Justice Stone opinion. this

BRADFORD ELECTRIC CO., LIGHT INC., v.

CLAPPER, ADMINISTRATRIX. 423. Jurisdictional statement submitted 23, No. November 1931.—

Decided December 1931. Leahy George Messrs. Wm. E. T. Hughes were on for brief appellant,