*1 mental period available. But the narrow basis supplemental registration, very brief normal period of relief for persons purposes question, practical difficulties, which the record' gives this case inevitable in glimpses, the administration of such strict registration provisions, escape leave no from the conclu- sion that chosen as substitutes for the invali- means “grandfather dated clause” were themselves invalid under the Fifteenth Amendment. They operated unfairly against the very on whose behalf class protection the Constitution was here successfully invoked. judgment of the Circuit Court of Appeals must, therefore, be reversed and the cause Dis- remanded to the trict proceedings further accordance this opinion. McReynolds
Mr. Justice and Mr. Justice Butler think that the court below right reached the conclusion and that its should be affirmed. Douglas
Mr. Justice took no part consideration disposition case. O’MALLEY, COLLECTOR OF INTERNAL
REVENUE, v. WOODROUGH et ux. Argued April No. 810. May 22, 1939. Decided *2 Jackson, At- with whom Assistant General Solicitor Morris, Key, Messrs. and Sewall Arnold General torney brief, were on the Raum, Joseph T. Votava and appellant. George DeLacy, Kennedy C. L. A.
Messrs. J. Ralph Svoboda and E. Svoboda Messrs. Edward J. whom brief, appellees. were on delivered the of Frankfurter Justice MR. the Court. 2 August under Act of §
The case is here appeal direct from a (50 Stat. as a 751), “decision the con- of a district court whose was Congress. below, The suit an stitutionality” of Act of have a tax on income claimed to action at law to recover disposed plead- been was illegally exacted, us, question now before ings single turned on the Act of provision wit: Is the the Revenue (47 169, 178), (a) of the Reve- Stat. re-enacted (49 nue in- 1648, 1657), Act of 1936 Stat. constitutional sofar on the basis “gross income,” as it included paid, to be taxes were taking after “judges of of the United States office courts June 1932.”
That will emerge simple is the sole issue governing legislation. statement and of the of the facts ,a Joseph United Woodrough appointed W. was States April 12, 1933, qualified circuit on such on judge May year Eor of 1936 a joint the calendar Judge Woodrough his income tax return wife dis- $12,500, closed but judicial salary claimed it to be constitutionally immune from taxation. Since it was not “gross no tax was payable. included in income” Subse- deficiency $631.60 quently assessed the basis *3 which, interest, with was item, paid under protest. of Claim having rejected, present for refund been suit went brought, was the Collector. assessment of the tax- present technically was under 1936, the Act of but that Act merely carried forward the 1932, provisions of the Act of the inclusion of com- “judges of of pensation of courts the United States, tak- ing 6, office June 1932” which after had been similarly incorporated in the Act of Revenue 1934 (48 Stat. 680, 686-687). Therefore, of power Congress to include Judge Woodrough’s a circuit salary as in judge his “gross judged must be income” on of basis of validity 1932, of Act of § the Revenue and not though originally had been asserted by the Revenue Act 1936. For was the Act June 1932 that gave notice to thereafter to all be appointed, of .the Congressional new to policy include judicial .salaries of. in such the assessment of income taxes. The Judge fact that Woodrough before he became a circuit judge prior 6, 1932, June had been 'a1district judge irrelevant, wholly in matter issue. The two have offices different statutory origins, by sep- are filled confirmations, arate nominations and and enjoy different emoluments. A appointee new circuit ap- a court less, office peals occupies a new no when he is taken the district when bench than he is drawn from the bar.
By means of
Act of
Revenue
1932, Congress
at least in
sought
avoid,
part,
consequences
Gore,
S.
case,
245. That
decided on June
Evans
ruled
first time that
provision requir-
ing
received
the judges of the United
States to be
income”
“gross
included
from which
although
the net
computed,
merely
income is to be
part
taxing
general, non-discriminatory appli-
measure of
contrary
III,
cation to all
incomes,
earners
Article
provides
the “Com-
Constitution
dur-
pensation”
“Judges”
“shall not
diminished
also
separate
their Continuance
Office.” See
ing
Field in Pollock v. Farmers’ Loan
Justice
opinion Mr.
seq.
sure,
604 et
To
Co.,
429, 586,
& Trust
157 U. S.
Taney
Chief Justice
ex-
Secretary Chase,
a letter to
In
he
so, merely gave
pressed
doing
similar views.1
that the
extra-judicial
asserting at
same time
opinion,
Taney’s
adjudicated.2 Chief
could not be
Justice
question
Attorney
Hoar.3
views were shared
General
vigorous
Con-
Treasury Department4 and
Thereafter, both the
February 16, 1863, and will be found
letter
written
was
281 gress5 acted construction of the Constitution. However, meaning which v. Gore imputed Evans history which Article explains III, 1,§ was contrary inway by which it was read other English-speaking urts.6 The decision met steadily wide and growing co disfavor from legal scholarship professional opinion.7 Evans v. rejected Gore itself was most courts before whom matter came after that decision.8
Having regard circumstances, question these im-- mediately Congress before us is whether exceeded its con that United providing stitutional States 5 Wayne States, 274; July 28, 26 Ct. Cl. See v. United Act 311, 27 Stat. 306. c. Judgments Cooper Tax, 6 See v. Commissioner Income 4 Queensland 1304, construing Comm. L. 17 of R. Constitution § prohibited “any 1867 which
Act of reduction diminution of the salary Judge during office”; Judges also, Attorney- his Term of v. 209, construing 2 D. L. R. General Saskatchewan [1937] 96§ Act, 1867, British North America “The Salaries ... Judges provided by . . . shall be fixed and the Parliament of Act, 1932, Canada” in connection with the Income Tax of Sas katchewan. Clark, Upon Taxation, See Further Limitations Federal Income 75; Corwin, 1919-1920, L. J. Constitutional Law in Yale 15 Am. 641-644; Fellman, Salaries, Diminution Judicial Pol. Rev. Sci. 89; Lowndes, Taxing 24 Iowa L. Judiciary, Income Federal Rev. 153; Powell, 1919-1920, L. Constitutional Law in Va. Rev. 117-118; Powell, L. Rev. Sixteenth Amendment In Mich. Magazine Securities, come (July State Tax National Income 1923) 5-6; 794; 318; 20 Col. L. L. Rev. Harv. 20 III. L. Rev. 291; 69; 376; 45 L. L. 7 Va. Rev. 3 U. of Chi. L. Rev. Rev. Q. Rev. pro con, cases, 8 The dissenting'opin in the collected recent Judge Appeals Maryland ion Chief Bond of the Gordy Dennis, v. 5 A. 2d 82. Particular attention should be identical construing called to the Commissioner clause from 100 of the decision Inland Article South Revenue, Supreme III, Africa [1929] Act, Court of South of our Constitution. So. Afr. had taken over the R. Africa, (A. D.) 286, Krause *5 282 after the
appointed Act of Revenue 1932 shall not enjoy from immunity incidences taxation to which every one else within defined classes of subjected. income is Thereby, course, Congress has committed itself to the that a position non-discriminatory tax laid generally on net when not, is applied income the income fed eral judge, salary diminution of within prohibi III, 1,§ tion of Article of the suggest Constitution. To it makes inroads the independence of judges who took after Congress office had thus charged them with of citizenship, by duties common making them bear their share of aliquot the cost .of maintaining Gov great to trivialize the ernment, historic experience safeguards which the framers based the of Article III,. subject To them to a general § 1.9 is merely to recog citizens, nize that are also and that particular their government function in not generate does immunity sharing'with their fellow citizens the material bur government den of the whose Constitution and they laws with charged administering. After case here, Congress, by came 3 § of Public Act of 22 Salary 1939, (a) Tax amended to make so as applicable “judges of courts of the United States on or who took office before June 1932.”10 That sec- however, is not tion, now us. But before extent 9 security regarding salary provisions had their source in- 1700, 12 Ill, III, cf & 13 the Act Will. Settlement é. 1760,1 Ill, The Constitutional Holdsworth, Geo. c. 23. See the Act of Judges, -25; Holdsworth, L. Position Rev. His Q. tory op English Law, 559-64; 6 id. -32, Cong., Sess., 76th 1st c. 59. No. 209 of Public Section however, provides “In statute, same case of the Court, and of the courts Supreme inferior of the United States created Constitution, III who took or under árticle office on before subject 6,. 1932, the received such shall not be June any prior under the Act of 1938 income tax Revenue revenue Act.” says now inconsistent what
that what Graham, S. the latter was said Miles cannot survive.
Judgment reversed. McReynolds not hear argument Justice did MR. no part took in its in this cause and consideration or debision. Butler, dissenting. Justice
Mr. Concretely, question whether, by exacting from judge Joseph W. United States circuit Woodrough and in the form $631.60 tax his wife income salary his $12,500 for the Government 1936, diminished com- for his services theretofore fixed pensation by Congress. excluded, they item had no taxable That income. The $1041.66. was judge’s monthly pay The tax took at $52.63. monthly rate of given briefly. material details The 1933, Judge April 12, appointed Woodrough judge appeals of the United circuit court States for the qualified eighth May circuit. 1, Congress He 1933. had 13, 1926,1 Act December enacted that “To each the sum of judges $12,500 per of the circuit year” shall paid compensation. May 1, as Since 1933, appellee received specified pay. has Revenue Act 6, 1932, applicable only June to taxable years beginning 31, 1931, after December provision contained a "declaring that in the taking case of office.after that date compensation “the received as such shall be included all gross Acts income; fixing compensation ,. such hereby . . amended accordingly.”2 1934,3 applicable Revenue Act only to taxable 6, 1 c. 44 Sta.t. 919. (a), 209, c. 47 Stat. § (a), 277, c. 48 Stat. 680.
3 § after December years beginning taxable, 1936,4 only after applicable years-beginning language 1935, contain same as December from the Act of 1932. just quoted Judge Woodrough joint and his wife made a income it but claimed was 1936; salary return for disclosed tax. The commissioner held subject to item tl^e deficiency of $631.60. made assessment taxable and protest refund; under claim paid Plaintiffs filed they were Claiming the tax that so com- it was denied. judge’s diminished the pelled pay 22 (a) of the Act violates therefore Constitution, plaintiffs sued recover Ill, Art. of the tax. The collector moved dismiss. amount unconstitutional, the Act overruled the The court held having plead not to fur- defendant elected and, motion Defendant prayed. ther, plaintiffs gave *7 appealed.5 Judges, “The both of the 1, declares: III, §
Article shall their dur- Courts, inferior hold Offices supreme and at Behaviour, shall, Times, stated receive ing good Compensation, which shall not Services, for their during their Continuance Office.” diminished independence The safeguards It of the judiciary. against abuse which it was intended to be barrier is list included in the of reasons for Declaration- of .our Independence. history “The present King Great is a history repeated injuries usurpa- Britain object tions, having all direct establishment of He Tyranny absolute over these States ... has ob- Administration of Justice, by refusing structed his Laws for establishing powers. Judiciary Absent —He Judges alone, dependent has made on Will for the 4 (a), c. Stat. 1648. August 24, Act c. Stat. offices,
tenure of their amount and payment tlTeir.salaries.” ' Hamilton, explaining the reasons for and Alexander purpose-of 1 Art. said: Ill, "§ only
“The Executive not dispenses honors, but community. legislature holds the sword of the only commands but purse, prescribes the rules rights every duties and citizen are to be regulated. judiciary, contrary, on the has no in- fluence over either the sword or the no purse; direction - strength either of the or of wealth of the society; no active resolution whatever. can take It will, truly be have neither nor said to but merely force . . . “This of the matter . . simple proves view incon- is testably, judiciary beyond comparison departments weakest of the three of power; it can never attack with success either of other two; and requisite all it to possible care enable defend . . . itself their attacks independence of complete justice “The the courts of peculiarly essential a limited Constitution. a By Constitution, I limited one which understand contains exceptions to specified legislative certain authority; as that it shall no such, instance, pass bills of attain- no der, ex-post-facto laws, and the like. Limitations of this kind can no other preserved practice way than through justice, the medium courts duty whose must be to declare all acts contrary manifest tenor this, void. Without all of the Constitution the reserva- *8 particular rights privileges tions would amount to (The 78.) . nothing'. Federalist, .” No. in permanency office,
“Next to nothing can contribute to independence more of the than judges pro- a fixed support general vision their In ... course of human nature, power over a man’s subsistence amounts friends . The enlightened . . over his will to a State, have seen cause every government good explicit precautions want of and precise lament of these head. Some on this State constitutions .in- should be salaries permanent declared deed have in some has experiment judges, for the but established sufficiently expressions are not that such instances shown legislative Something evasions. still preclude definite to has been evinced to be unequivocal positive more and of the . for the provision support . . This requisite efficacy; mark of every prudence bears that, together the.per- affirmed safely offices, of their it affords a better prospect manent tenure is discoverable in the consti- independence of their than in regard States to their own tutions of any Federalist, 79.) (The No. judges.” Mr. that “Without pro- Justice declared this Story office, would have vision, other, as to the tenure . .” mockery indeed a mere utterly been nugatory, provision Kent said: “The Story, Chancellor §.1628. well calcu- support of permanent for the of their office, give to the ténure lated, in addition tends, It requisite independence. also, them the to se- men who, succession of learned on the bench, cure a support, of a undiminished are en- consequence certain the lucrative quit pursuits of pri- abled induced important duties of station. vate business States, subject, of the United Constitution previously existing all our improvement was an 1 Kent Com. constitutions.” judicial construction clause was The first District of Columbia in court of the circuit opinion v. More.6 The States written of United case court sustained a demurrer to an Judge Cranch, p. seq., et footnote at 3 Cranch. in a 6 The is set forth *9 justice indictment a charging More, peace, of the of his office, cents, under color exacted an illegal fee, giving a upon warrant a small debt. The whether an Congress issue was Act of abolishing fees of justices peace in of the the District of Columbia could accepted affect those who their commissions while the fees legally were annexed to the office. The said: court “The 3d article of provides the constitution for the inde- pendence of the of judges the courts of the United States, by certain one regulations; of which is, they shall receive, at stated times, compensation a for their services, which shall during diminished their continuance congress act of of 27th of February, which' office. justices of constitutes the office peace . . . ascer- they tains the compensation which shall have for their holding services in their . . . courts This compensation form given fees, payable when the services . . . That his rendered justice’s] compensa- [the tion shall not be during diminished his continuance office, seems to follow as necessary consequence provisions the constitution ... If compensa- his by law, tion has once been fixed a subsequent law for diminishing compensation (a for abolishing fortiori it) justice during cannot affect that peace his continuance ...” office; attempt first compensation of federal during the Civil War. Section 86 of the Act
of July 1, 1862,7levied “on all salaries officers, pay- persons ments in the . . service of the United States n .. . exceeding when the rate six hundred dol- per duty lars annum, per three centum the ex- cess above the said six hundred dollars,” and directed disbursing officers to deduct and withhold the duty. general provisions These were construed the revenue 7 119, c. 12 Stat. 472. the Presi- comprehend
officers to letter By States. United dent and the protested Taney Justice Mr. Chief February 16, In the course of Treasury. Secretary *10 letter,8 he said: diminishes interpret question, you it,
“The in act if it cent, and per three every judge the of tax, a it by name of extent the can diminished to that be at the from time to time way be reduced may in the same legislature'. of pleasure the departments great one the three Judiciary is of
“The Con- established the and government, created forth, set specifically powers Its duties and stitution. requires perfectly to that it of a character and are departments, and in order of two other independent the even suspicion reach it the and above the place beyond to compen- reduce their the to influence, power of any such excepted Congress, from and withheld expressly sation is legislation. from of powers their in plain not than that used be more “Language could impor- one its most- is moreover of the Constitution. It limit essential tant and For articles provisions. of legislative and executive of powers branches provide safeguards and those which government, in property, his and protection person citizen value uphold would be of without to judiciary little every influence, maintain which was free.from them, and in indirect, might by possibility or times direct judgments. . . warp excitement their political judicial highest “Having been honored station my to be more Constitution, especially I feel it under constitutional duty uphold rights to and maintain the not department, any act government, .the I mine, acquiesce it to supposed word leave displaces independent posi- measure that p. Printed in 157 S. at assigned tion it by the statesmen who framed the Consti- tution; and in to guard against any inference, order such n I firm present you decided respectful but remonstrance authority you have exercised under this act request you arid Congress, place this protest upon your public files office as evidence have that I my done everything preserve Department position maintain the Judicial in the rank government which the has Constitution it.” assigned^to
The lfetter of the Chief Justice and, answered request, at the Court, May 10, 1863, ordered the letter entered its In 1869, Secretary records. Treasury requested the opinion Attorney General Rockwood Hoar constitutionality Ebenezer as to the the Act construed to judges’ extend salaries. He an opinion, rendered substantial accord with the views *11 expressed Taney’s Chief Justice A. protest. Op. 13 G. 161. Accordingly, the tax compensation on the of the judges President of the was discontinued and them were refunded— n amounts theretofore from collected through some channels; through administrative others of action of the court and ensuing claims appropriations Wayne States, United by Congress. See 26 274, C. Cls. 27 Stat. 306. 290; n 1889, Miller, In Mr. Justice a member of the Court 1862, since said: “The Constitution of the United States placed has upon general power several limitations the taxation], [of implied. and . . some them provisions . of One of its neither the (Art. is that' President the United States nor a II, par 6), judge Supreme sec. the or inferior (Art 1), salary shall III, courts sec. have his diminished the during period which he shall elected, have been during or his continuance in office. very It is clear that 9 Miller the Constitution of the United p. 247. States an war, the levied Congress, during late when [Civil] upon it well- the salaries tax, placed as income of the courts as those President just them it was a diminution of that people, other extent.” that nothing Tax Act 1894 said the Income
Although judges, Mr. Justice Field compensation of about the assigned tax that 3310 to construed joining decision among others ground that Pollock v. Farmers’ unconstitutional. the Act was Co., U. S. 604-606. Mr. Justice Loan & Trust day this Court ordered was confirmed the Field, who on its had Taney’s records, letter entered Chief Justice beginning bench at upon this place taken his recited facts term. His following quoted extensively letter, incident and appendix reports volume printed containing opinions in Pollock case. 157 S. ended matter 701. The Justice his discussion of the by stating belief, information, based on Attorney General Hoar had opinion of been followed ever question by Treasury. without And, since reargument cause, Attorney General Olney said in his brief: “There has never been a doubt since General Hoar opinion Attorney that the salaries of the President and were exempt.” Acts of 1916,12being The Revenue 1913 and the first n adoption two after of the Sixteenth Amendment, ex- Section 28 Stat. in terms wás much like 86 of the Act 1862; officers, levied “on all payments salaries of ... persons in the . . . service of States, the United .. when exceed *12 ing per the rate of four annum, thousand dollars per a tax two centum on the excess above the said four thousand dollars” and duty made disbursing it the officers to deduct and withhold tax. 11 2B, 38 Stat. 168. § 12 4, 39 Stat. 759. gross compensation income the
pressly. excluded country engaged after this judges then office. But 1918, approved Act War, World the Revenue “in include 24, 1919, gross defined income to February the President the case of . . . [and] compensation re and inferior Supreme courts . . congressional com of the reports such.” ceived charge measure in indicate having mittees validity in doubt as to the constitutional Congress was question de and intended to have the provision of that raised and question by the courts.14 cided Gore, 245. 253 U. S. for decision in Evans presented of Judge for 1918 salary included the The Collector statute, taxing before enactment of Evans, appointed ' it he would have excluded, Had been gross income. brought tax and paid taxable income. had no He n suit to The United recover the amount so exacted.. Kentucky district of district court the western States argument after But, him held not entitled to recover. General, this the Solicitor including counsel by eminent declaring clause held that their continu- during diminished judges “shall not be diminution taxation and that prevents in office” ance practice the actual so construed has been government. reasons and true disclosing
For purpose compen- diminution of forbidding clause meaning of the written by Mr. Court, judges, sation of brought forward statements Devanter, Justice Van Marshall, Justice Justice Hamilton, Chief Alexander Taney, Justice Justice Kent, Chief Story, Chancellor others. Olney Hoar and Attorneys General Field, 1062. (a), 40 Stat. 29; Kept. No. sess., Sen. Cong., p. 2d 767, 65th Rept. H. No. Rec., Cong. p. p. 6; 56 Cong., sess., 65th 3d *13 Court, the he said:
Speaking purpose provide does the Constitution what “With ‘shall not be dimin- compensation that the in Is their continuance office’? it during primarily ished promote to the judges, public or rather weal to benefit independence which that makes for them giving discharge judicial courageous and func- impartial merely provision forbid direct diminu- tion? Does reducing expressly from tion, a süch as thereby and per year, sum leave way to less a greater diminution, indirect, yet effective, such as with- open a as a on calling part back or the whole? holding shall judge have mean a sure and does Or, compensation, whereon he continuing right confi- support during his for his rely continuance dently may have no apprehension need office, that he lest his so in may changed regard in disad- situation vantage? purpose prohibition primary ..
“. but, benefit judges, not like diminution was the. tenure, good to attract in and respect compe- clause promote bench and to independence men to tent which is essential to the mainte- and of action limitations and guaranties, pervading prin- nance and the Constitution administration of ciples persons and with respect equal without concern justice being rich. Such its purpose, it is poor for the private grant, but a construed, not as as limita- to be interest; words, other public imposed tion spirit with its the principle but accord restrictively, proceeds. which it may be effected ways diminution more “Obviously, indirect, and others direct Some one. than suggested. Hamilton But as Mr. all evasive even withhold or take necessary effect operation by their which has been promised part judge within regarded prohi- must be for his services law give this will full effect to its Nothing short bition. plaintiff Here the full paid the principle. spirit subjected involuntary to an <but was obli- compensation, *14 and part, obligation back a was- pay to gation him Of what avail to the part enforced. promptly with one hand and then taken back with was paid in placed practically he not the same the other? Was in if had been withheld the first it instance? situation as to form could it subordinating substance mere Only by not compensation was diminished . . . that his held be contains no general, is excepting prohibition “The against to be directed all appears diminution, words and another; for or and reasons for purpose one whether assigned at as the time and adoption, publicly com- its make with since, impelling ever for monly accepted force that fathers of the Constitution in- the conclusion diminution taxation prohibit to as well as tended regarded independence otherwise, they —that any than importance far revenue that greater as of taxing their salaries. . . . could come . .'. what comprehended we consider in the “When is tax, its to exertion power is not di- congressional —where interdicted, additionally or becomes rectly impliedly —it now under that the prohibition manifest discussion was prevent and diminution through to embrace intended for, as this power; repeatedly of that court has exertion tax it power to carries with 'the held, to em- applied be to destroy’; every object and barrass fin such as range Congress may within its measure deter- body that 'to select calling enables and mine’; one omit tax one and another, property class to forebear in another’; applied and may ways tax different objects long as there ‘geographical different so uni- duties, imposts formity’ imposed. excises [Cit- morally ing.] Is it not certain the discern- therefore framed the Constitution and were so who statesmen ing securing independence ju- bent on* sedulously compensation of protect diciary intended and diminution the name form from assault the prohibition not the purpose Could a tax? left open? if this avenue of attack were wholly thwarted prohibition in the words nothing Certainly there against legislative power one that it is directed indicating regard its in our due another; be taken directed requires principle spirit all.” them dissenting opinion, Holmes wrote Mr. Justice joined. expres- Brandéis which Mr. Justice With years decision ended. Two opposition sion his Oklahoma, S. writing Gillespie v. later, net income of a upon- a state Court, invalidating gas of his of oil and under from sales share received lessee “In land, 505): Indian he (p. leases of restricted said *15 absolutely from in- where is' immune principal cases the inquiry is allowed into the from from-,- terference an sources if a part net is derived and of it income comes pro such a tax is tanto void; source the Pollock v. Co., Loan & Trust 157 429; Farmers’ U. S. 158 U. 601; S. by . lately illustrated Evans v. Gore . .” And a.rule truth, that on the case he as put relied Chief Justice Maryland, Marshall M’Culloch v. 4 431, Wheat. 316, that to tax involves power “the the power to destroy.” He quoted (p,-505) approval from Indian Oil Co. v. Oklahoma, 240 U. S. the statement of the opinion “A (p. 530) upon leases is a tax upon’the - them, and to make could be used power to destroy them.”15 power, to make 15 Gillespie v. Oklahoma is one of the decisions subjected to con concurring opinion in Graves v.
demnatory comment York New O’Keefe, ex rel. It 306 S. 466. is there said: “A succession of (1925), Graham U. S. held invalid Miles v. (a), 1918, (condemned § Revenue Act in Evans v. Gore) when applied Judge Graham, to [Gillespie decisions thereby v. Oklahoma is the first withdrew cited] taxing power from very Nation a considerable States and regard range workings of wealth to the actual federal- without of our this, too, began ism, governments when the financial of all needs steadily to mount.” place
At another concurrence, in' that the writer stated: “The long impossible volume of Court’s business has since made healthy early practice whereby gave expression indi- Justices to opinions. vidual But the old when tradition still has relevance important shift in is constitutional doctrine announced after re- a arguments membership in the . . construction Court. Maryland, . . . which McCulloch v. rested have Wheat. distorted, by been sterile refinements unrelated to affairs. These authority from refinements derived an unfortunate remark in Maryland. Partly a McCulloch flourish rhetoric because partly indulged' the intellectual fashion the times absolutes, gave currency free use of Chief Justice Marshall power power phrase destroy.’ ‘the to tax involves the to . . . unreality spun web Marshall’s dictum famous was away by of Mr. pen: brushed one stroke Justice power' Holmes’s ‘The power destroy to to tax while this Court sits’. Panhandle Mississippi, (dissent).” Oil Co. v. 277 U. S. But, Gillespie case, in the Holmes, speaking Mr.’Justice
Court, definitely applied had doctrine that power to tax does destroy. power involve the
In Panhandle Court, ease neither the jus nor -indeed another dissenting, impressed tice “The power to tax is not the power destroy while this Court sits.” vague The statement n imply power read possessed. never If taken empowered regulate to mean that we are or to limit the exertion by Congress of its taxation, regarded *16 it as justly hyperbole; if taken tó mean that this prevent Court has to imposition Congress by of taxes discourage, laid to destroy, to or protect, to then is in teeth the See, the1law. g., e. Bank Veazie Fenno, 533, 548; v. 8 Wall. McCray States, v. United S.U. seq.; Magnano 27, 53 et Hamilton, v. Co. U. S. seq.; et . Soap States, Co. United Cincinnati S. 308 joined Justice Holmes appointed after its enactment. Mr. merely noted in Mr. Justice Brandéis the decision. dissent.
In opinion, the course the said: we ap- in “Does the circumstance that defendant error’s the Act a taxing require came different pointment after ? right exemption view to The answer de- concerning his ‘compensation’ word pends upon import provision. constitutional history of clause indicate that
“The words and upon Congress definitely purpose impose duty was to shall by judge what sum be received each out declare funds and times When public payment. specified has with amount duty complied been this which is compensation protected becomes the his continuance during diminution office. when, by . fixed law
“. defend $7,500 duties an- per ant assumed his official error tax this would diminish num, respect to exact’a of Evans v. plain it within the rule Gore. law taxing [February 24, Act became a
“The
1919]
prior
prescribing
statute
salaries
February
if
25, 1919],
[approved
Claims
but
impossible
it would
were reversed
construe
dates
an amendment
reduced salaries
the former as
n required
imposed.
"judge
of the tax
No
amount
salary,
but all are com-
percentage
pay
definite
income,’
‘gross
com-
part
as
‘the
return,
manded to
From
such’ from
United States.
received as
pensation
various deductions and credits are al-
income’
‘gross
gifts made,
paid, contributions
lowed,
for interest
as
family
etc.,
varying
relations,
exemptions
personal
assessment is made.
plain
result
the net
to return
all
their
require
compen-
towas
purpose
income,’ and
‘gross
item of
sation as
forbidden
the Constitution.
This
salaries.
other
*17
fix
Congress definitely
“The
power
compen-
stated
sation to be received at
there-
by judges
intervals
clear.
It
is
appointed
equally clear,
think,
after
we
judge
no
there is
a court of the
salary prescribed
United States on account
”
him
law
O’Donoghue
In
v. United States (1933),
289 U. S.
reducing
we construed the Act
June
judges “except judges
salaries of all
whose compensation
during
may not,
Constitution,
under the
diminished
their continuance
office.” We there held that
supreme
appeals
of-
District of
court and court
Columbia
courts and therefore that
were constitutional
excepted from
salary
of those courts were
authorities, adopted
reduction. We cited the
the reason
on which rest
ing,
reaffirmed the conclusions
judgments
Court’s
in Evans
Gore
Miles v. Gra
v.
States,
And see Booth
Now judg- the deliberate opinions those well-sustained indeed views—if Court, opposing ments of this Eng- they may be so deemed —of reasonably examination *18 judges foreign lish in countries. speaking Privy decision of Coun 6, It footnote refers, Judges Attorney-General cil v. Saskatchewan construing 2 D. L. tax statutes of 209, R. income (1937), Saskatchewan. Neither the Dominion Province nor compensation diminution of any forbidding has law judges do nothing while in office and that decision has question before us. The Australian and South cited, 6 and involved construc 8, African cases footnotes or tion of income statutes under constitutions charters by legislative subject to created enactments authori interpretation par tative the local or British change They liament. light upon shed no in this case. the issue opinion support any The claims no state court decision. The one it cites,;footnote Mary- that land of Appeals Gordy Dennis, 5 A. 2d held that under in the of Maryland clause Constitution like in Art. Ill, compensation that of state may not taxed. be opinion
The also footnote cites, gainsaying selected writings professors, lawyers are and some are —some not —but without specification of or reference to the reasons upon which their views rest. inAnd addition it published cites reviews, *19 wrong, impossible acquiesce it is merely to note dis- opinion so sent. is written And to indicate the grounds opposition and to evidence regret that another been landmark has removed.
I am of of the district court should be affirmed.
RORICK v. DEVON SYNDICATE, LTD. Argued April 24, No. 676. May 1939. Decided 22, 1939. notes law signed some not; presumably some latter were prepared by law students. suggestion that, citizens, The are not immune from taxation begs the question here presented; Constitution itself puts judges in a separate class, de- at stated times claring they shall receive for their compensation services which “shall not be diminished.” And their salaries so distinguished from income compensation immunity only extends others. or reasonable- question comparison No their services. ness is involved. repudiates deci- Admittedly the Court now its earlier defining issue. The point provision here in sions compensation tenure for undiminishable providing There has with unusual accord. been una- adopted nimity that, comparison because in with the weak, legislative judicial department and executive the is independence system essential to our govern- its is go far safeguards independ- ment. These to insure jurists from the And, beginning, ence. statesmen and agreed that have the clause forbids diminution of judges’ form of legislation. The any clause question plain: exception expressed; no is none implied. unqualified Its command should given effect. Eor one convinced now given