May 22, 1939 [307 U.S. 277, 278] Messrs. Frank Murphy, Atty. Gen., and Robert H. Jackson, Sol. Gen., for appellant.
Messrs. J. A. C. Kennedy and George L. DeLacy, both of Omaha, Neb., for appellees.
Mr. Justice FRANKFURTER delivered the opinion of the Court.
The case is here under Section 2 of the Act of August 24, 1937, 50 Stat. 751, 752, 28 U.S.C.A. 349a, as a direct appeal from a judgment of a district court whose 'decision was against the constitutionality' of an Act of Congress. The suit below, an action at law to recover a tax on income claimed to have been illegally exacted, was disposed of upon the pleadings and turned on the single question now before us, to wit: Is the provision of Section 22 of the Revenue Act of 1932, [307 U.S. 277, 279] 47 Stat. 169, 178, reenacted by Section 22(a) of the Revenue Act of 1936, 49 Stat. 1648, 1657, 26 U.S.C.A. 22(a), constitutional insofar as it included in the 'gross income', on the basis of which taxes were to be paid, the compensation of 'judges of courts of the United States taking office after June 6, 1932'.
That this is the sole issue will emerge from a simple statement of the facts and of the governing legislation. Joseph W. Woodrough was appointed a United States circuit judge on April 12, 1933, and qualified as such on May 1, 1933. For the calendar year of 1936 a joint income tax return of Judge Woodrough and his wife disclosed his judicial salary of $ 12,500, but claimed it to be constitutionally immune from taxation. Since it was not included in 'gross income' no tax was payable. Subsequently a deficiency of $631.60 was assessed on the basis of that item, which, with interest, was paid under protest. Claim for refund having been rejected, the present suit was brought, and judgment went against the Collector. The assessment of the present tax was technically under the Act of 1936, but that Act merely carried forward the provisions of the Act of 1932, for the inclusion of compensation of 'judges of courts of the United States taking office after June 6, 1932' which had been similarly incorporated in the Revenue Act of 1934, 48 Stat. 680, 686, 687, 26 U.S.C.A. 22(a). Therefore, the power of Congress to include Judge Woodrough's salary as a circuit judge in his 'gross income' must be judged on the basis of the validity of Section 22 of the Revenue Act of 1932, and not as though that power had been originally asserted by the Revenue Act of 1936. For it was the Act of June 6, 1932 that gave notice to all judges thereafter to be appointed, of the new Congressional policy to include the judicial salaries of such judges in the assessment of income taxes. The fact that Judge Woodrough before he became a circuit judge and prior to June 6, 1932, had been a district judge [307 U.S. 277, 280] is wholly irrelevant to the matter in issue. The two offices have different statutory origins, are filled by separate nominations and confirmations, and enjoy different emoluments. A new appointee to a circuit court of appeals occupies a new office no less when he is taken from the district bench than when he is drawn from the bar.
By means of Section 22 of the Revenue Act of 1932, Congress sought to avoid, at least in part, the consequences of Evans v. Gore, 253 U.S. 245 , 40 S.Ct. 550, 11 A.L.R. 519. That case, decided on June 1, 1920, ruled for the first time that a provision requiring the compensation received by the judges of the United States to be included in the 'gross income' from which the net income is to be computed, although merely part of a taxing measure of general, non-discriminatory application to all earners of incomes, is contrary to Article III, 1 of the Constitution, U. S.C.A., which provides that the 'Compensation' of the 'Judges' 'shall not be diminished during their Continuance in Office.' See also the separate opinion of Mr. Justice Field in Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429, 586 , 604 S. et seq., 15 S.Ct. 673, 691, 698. To be sure, in a letter to Secretary Chase, Chief Justice Taney expressed similar views. 1 In doing so, he merely gave his extra-judicial opinion asserting at the same time that the question could not be adjudicated. 2 Chief Justice Taney's vigorous views were shared by Attorney General Hoar. 3 Thereafter, both the Treasury Department4 and Con- [307 U.S. 277, 281] gress5 acted upon this construction of the Constitution. However, the meaning which Evans v. Gore, supra, imputed to the history which explains Article III, 1 was contrary to the way in which it was read by other English-speaking courts. 6 The decision met wide and steadily growing disfavor from legal scholarship and professional opinion. 7 Evans v. Gore, supra, itself was rejected by most of the courts before whom the matter came after that decision. 8
Having regard to these circumstances, the question immediately before us is whether Congress exceeded its constitutional power in providing that United States judges [307 U.S. 277, 282] appointed after the Revenue Act of 1932 shall not enjoy immunity from the incidences of taxation to which everyone else within the defined classes of income is subjected. Thereby, of course, Congress has committed itself to the position that a non-discriminatory tax laid generally on net income is not, when applied to the income of a federal judge, a diminution of his salary within the prohibition of Article III, 1 of the Constitution. To suggest that it makes inroads upon the independence of judges who took office after Congress had thus charged them with the common duties of citizenship, by making them bear their aliquot share of the cost of maintaining the Government, is to trivialize the great historic experience on which the framers based the safeguards of Article III, 1.9 To subject them to a general tax is merely to recognize that judges are also citizens, and that their particular function in government does not generate an immunity from sharing with their fellow citizens the material burden of the government whose Constitution and laws they are charged with administering.
After this case came here, Congress, by Section 3 of the Public Salary Tax Act of 1939, amended Section 22(a) so as to make it applicable to 'judges of courts of the United States who took office on or before June 6, 1932 '10 That Section, however, is not now before us. But to the extent [307 U.S. 277, 283] that what the Court now says is inconsistent with what was said in Miles v. Graham, 268 U.S. 501 , 45 S.Ct. 601, the latter cannot survive.
Mr. Justice McREYNOLDS did not hear the argument in this cause and took no part in its consideration or decision.
Mr. Justice BUTLER, dissenting.
Concretely, the question is whether, by exacting from United States circuit judge Joseph W. Woodrough and his wife $631.60 in the form of income tax on his salary of $12,500 for 1936, the government diminished the compensation for his services theretofore fixed by Congress. That item excluded, they had no taxable income. The judge's monthly pay was $1,041. 66. The tax took at the monthly rate of $52.63.
The material details may be given briefly.
April 12, 1933, Judge Woodrough was appointed judge of the United States circuit court of appeals for the eighth circuit. He qualified May 1, 1933. Congress had by the Act of December 13, 1926,1 enacted that 'To each of the circuit judges the sum of $12,500 per year' shall be paid as compensation. Since May 1, 1933, appellee has received the specified pay. The Revenue Act of June 6, 1932, applicable only to taxable years beginning after December 31, 1931, contained a provision declaring that in the case of judges taking office after that date 'the compensation received as such shall be included in gross income; and all Acts fixing the compensation of such ... judges are hereby amended accordingly.' 2 The Revenue Act of 1934,3 applicable only to taxable [307 U.S. 277, 284] years beginning after December 31, 1933, and that of 1936,4 applicable only to taxable years beginning after December 31, 1935, contain the same language as that just quoted from the Act of 1932.
Judge Woodrough and his wife made a joint income tax return for 1936; it disclosed his salary but claimed it was not subject to the tax. The commissioner held the item taxable and made a deficiency assessment of $ 631.60 Plaintiffs paid under protest and filed claim for refund; it was denied. Claiming the tax that they were so compelled to pay diminished the judge's compensation and that therefore 22(a) of the Act of 1936 violates 1, Art. III, of the Constitution, U.S.C.A., plaintiffs sued to recover the amount of the tax. The collector moved to dismiss. The court held the Act unconstitutional, overruled the motion and, defendant having elected not to plead further, gave plaintiffs judgment as prayed. Defendant appealed. 5
Article III, 1, declares: 'The Judges, both of the supreme and inferior Courts, shall hold their Offices during good behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.'
It safeguards the independence of the judiciary. The abuse against which it was intended to be a barrier is included in the list of reasons for our Declaration of Independence. 'The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States ... He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.-He has made Judges dependent on his Will alone, for the [307 U.S. 277, 285] tenure of their offices, and the amount and payment of their salaries.'
Alexander Hamilton, explaining the reasons for and the purpose of 1 of Art. III, said:
Mr. Justice Story declared that 'Without this provision, the other, as to the tenure of office, would have been utterly nugatory, and indeed a mere mockery ....' 2 Story, 1628. Chancellor Kent said: 'The provision for the permanent support of the judges is well calculated, in addition to the tenure of their office, to give them the requisite independence. It tends, also, to secure a succession of learned men on the bench, who, in consequence of a certain undiminished support, are enabled and induced to quit the lucrative pursuits of private business for the duties of that important station. The constitution of the United States, on this subject, was an improvement upon all our previously existing constitutions.' 1 Kent Com. 294.
The first judicial construction of the clause was by the circuit court of the District of Columbia in 1803 in the case of United States v. More. 6 The opinion was written by Judge Cranch. The court sustained a demurrer to an [307 U.S. 277, 287] indictment charging that More, a justice of the peace, under color of his office, exacted an illegal fee, 12 cents, for giving judgment upon a warrant for a small debt. The issue was whether an Act of Congress abolishing fees of justices of the peace in the District of Columbia could affect those who accepted their commissions while the fees were legally annexed to the office. The court said: 'The 3d article of the constitution provides for the independence of the judges of the courts of the United States, by certain regulations; one of which is, that they shall receive, at stated times, a compensation for their services, which shall not be diminished during their continuance in office. The act of Congress of 27th of February, 1801, which constitutes the office of justices of the peace ... ascertains the compensation which they shall have for their services in holding their courts .... This compensation is given in the form of fees, payable when the services are rendered. ... that his (the justice's) compensation shall not be diminished during his continuance in office, seems to follow as a necessary consequence from the provisions of the constitution. ... if his compensation has once been fixed by law, a subsequent law for diminishing that compensation (a fortiori for abolishing it) cannot affect that justice of the peace during his continuance in office; ....'
The first attempt to tax compensation of federal judges was during the Civil War. Section 86 of the Act of July 1, 1862,7 levied 'on all salaries of officers, or payments to persons in the ... service of the United States ... when exceeding the rate of six hundred dollars per annum, a duty of three per centum on the excess above the said six hundred dollars', and directed disbursing officers to deduct and withhold the duty. These general provisions were construed by the revenue [307 U.S. 277, 288] officers to comprehend the compensation of the President and the judges of the United States. By letter of February 16, 1863, Mr. Chief Justice Taney protested to the Secretary of the Treasury In the course of his letter,8 he said:
The letter of the Chief Justice was not answered and, at his request, the Court, May 10, 1863, ordered the letter entered on its records. In 1869, the Secretary of the Treasury requested the opinion of Attorney General Ebenezer Rockwood Hoar as to the constitutionality of the Act construed to extend to judges' salaries. He rendered an opinion in substantial accord with the views expressed in Chief Justice Taney's protest. 13 Op.Attys.Gen. 161. Accordingly, the tax on the compensation of the President and of judges was discontinued and the amounts theretofore collected from them were refunded-some through administrative channels; others through action of the court of claims and ensuing appropriations by Congress. See Wayne v. United States, 26 Ct.Cl. 274, 290; 27 Stat. 306.
In 1889, Mr. Justice Miller, a member of the Court since 1862, said:9
Although the Income Tax Act of 1894 said nothing about the compensation of the judges, Mr. Justice Field construed 3310 to tax that compensation and assigned that ground among others for joining in the decision that the Act was unconstitutional. Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429 , 604-606, 15 S.Ct. 673, 698, 699. Mr. Justice Field, who was confirmed the day this Court ordered Chief Justice Taney's letter entered on its records, had taken his place upon this bench at the beginning of the following term. His opinion recited the facts of that incident and quoted extensively from the letter, which was printed as an appendix to the volume of the reports containing the opinions in the Pollock case. 157 U.S. 701 , 15 S.Ct. ix. The Justice ended his discussion of the matter by stating his belief, based on information, that the opinion of Attorney General Hoar had been followed ever since without question by the Treasury. And, upon reargument of the cause, Attorney General Olney said in his brief: 'There has never been a doubt since the opinion of Attorney General Hoar that the salaries of the President and judges were exempt.'
The Revenue Acts of 191311 and 191612, being the first two after adoption of the Sixteenth Amendment, U.S.C.A.Const., ex- [307 U.S. 277, 291] pressly excluded from gross income the compensation of judges then in office. But after this country engaged in the World War, the Revenue Act of 1918, approved February 24, 1919, defined gross income to include 'in the case of the President ... (and) the judges of the Supreme and inferior courts ... the compensation received as such.' 13 The reports of the congressional committees having the measure in charge indicate that the Congress was in doubt as to the constitutional validity of that provision and intended to have the question decided by the courts. 14 The question was raised and presented for decision in Evans v. Gore, 253 U.S. 245 , 40 S.Ct. 550, 551, 11 A.L.R. 519. The Collector included the salary for 1918 of Judge Evans, appointed before enactment of the taxing statute, in gross income. Had it been excluded, he would have had no taxable income. He paid the tax and brought suit to recover the amount so exacted. The United States district court for the western district of Kentucky held him not entitled to recover. But, after argument by eminent counsel including the Solicitor General, this Court held that the clause declaring that compensation of judges 'shall not be diminished during their continuance in office' prevents diminution by taxation and that it has been so construed in the actual practice of the government.
For the purpose of disclosing the reasons for and true meaning of the clause forbidding diminution of compensation of judges, the opinion of the Court, written by Mr. Justice Van Devanter, brought forward statements of Alexander Hamilton, Chief Justice Marshall, Justice Story, Chancellor Kent, Chief Justice Taney, Justice Field, Attorneys General Hoar and Olney and others. sess., p. 29; Sen.Rept. No. 617, 65th 10370. [307 U.S. 277, 292] Speaking for the Court, he said:
Mr. Justice Holmes wrote a dissenting opinion, in which Mr. Justice Brandeis joined. With that expression his opposition to the decision ended. Two years later, in Gillespie v. Oklahoma, 257 U.S. 501 , 42 S.Ct. 171, writing for the Court, invalidating a state tax upon net income of a lessee from sales of his share of oil and gas received under leases of restricted Indian land, he said (257 U.S. page 505, 42 S.Ct. page 172): 'In cases where the principal is absolutely immune from interference an inquiry is allowed into the sources from which net income is derived and if a part of it comes from such a source the tax is pro tanto void, Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429 , 15 S.Ct. 673; Id., 158 U.S. 601 , 15 S.Ct. 912; a rule lately illustrated by Evans v. Gore ...' And in that case he relied on the truth, as put by Chief Justice Marshall in M'Culloch v. Maryland, 4 Wheat. 316, 431, that 'the power to tax involves the power to destroy.' He quoted (257 U.S. page 505, 42 S.Ct. page 172) with approval from Indian Territory Illuminating Oil Co. v. Oklahoma, 240 U.S. 522 , 36 S.Ct. 453, the statement of the opinion (240 U. S. page 530, 36 S.Ct. page 456) that "A tax upon the leases is a tax upon the power to make them, and could be used to destroy the power to make them."15 [307 U.S. 277, 295] Miles v. Graham, 1925, 268 U.S. 501 , 45 S.Ct. 601, 602, held invalid 213(a), Revenue Act of 1918, (condemned in Evans v. Gore) when applied to compensation of Judge Graham, [307 U.S. 277, 296] appointed after its enactment. Mr. Justice Holmes joined in the decision. Mr. Justice Brandeis merely noted dissent.
In the course of the opinion, we said:
In O'Donoghue v. United States, 1933, 289 U.S. 516 , 53 S.Ct. 740, 741, we construed the Act of June 30, 193216 reducing the salaries of all judges 'except judges whose compensation may not, under the Constitution, be diminished during their continuance in office.' We there held that the supreme court and court of appeals of the District of Columbia were constitutional courts and therefore that the judges of those courts were excepted from the salary reduction. We cited the authorities, adopted the reasoning, and reaffirmed the conclusions on which rest the Court's judgments in Evans v. Gore, supra, and Miles v. Graham, supra. And see Booth v. United States, 291 U.S. 339 , 54 S.Ct. 379.
Evidently the Court intends to destroy the decision in Evans v. Gore, supra. Without suggesting that there is any distinction between that case and Miles v. Graham, supra, it declares that the latter 'cannot survive.' But the decision of today fails to deal with, much less to detract from the reasoning of those cases. The opinion would imply that the letter of Chief Justice Taney to the Secretary of the Treasury, and the separate opinion of Mr. Justice Field in the Pollock case were treated as having weight as judicial decisions. But nowhere has that ever been suggested. However, all who are familiar with our judicial history know that entitled to great respect are the reasoned conclusions of these eminent American jurists as to the true intent and meaning of the Constitution of the United States. And similarly worthy of attention are the opinions of the Attorneys General and other public officials following the reasoning of Chief Justice Taney. [307 U.S. 277, 298] Now the Court cites, as if entitled to prevail against those well- sustained opinions and the deliberate judgments of this Court, opposing views-if indeed upon examination they reasonably may be so deemed-of English speaking judges in foreign countries.
It refers, footnote 6, to the decision of the Privy Council in Judges v. Attorney-General of Saskatchewan, 1937, 2 D.L.R. 209, construing income tax statutes of Saskatchewan. Neither the Dominion nor the Province has any law forbidding diminution of compensation of judges while in office and that decision has nothing to do with the question before us. The Australian and South African cases cited, footnotes 6 and 8, involved construction of income tax statutes under constitutions or charters created by legislative enactments and subject to authoritative interpretation or change by the local or British Parliament. They shed no light upon the issue in this case.
The opinion claims no support from any state court decision. The one it cites, footnote 8, that of the Maryland Court of Appeals in Gordy v. Dennis, 5 A.2d 69, held that under a clause in the Constitution of Maryland like that in Art. III, 1, the compensation of state judges may not be taxed.
The opinion also cites, footnote 7, selected gainsaying writings of professors,-some are lawyers and some are not-but without specification of or reference to the reasons upon which their views rest. And in addition it cites notes published in law reviews, some signed and some not; presumably the latter were prepared by law students.
The suggestion that, as citizens, judges are not immune from taxation begs the question here presented. The Constitution itself puts judges in a separate class, declaring that at stated times they shall receive for their services compensation which 'shall not be diminished.' And so their salaries are distinguished from income of [307 U.S. 277, 299] others. The immunity extends only to compensation for their services. No question of comparison or reasonableness is involved.
Admittedly the Court now repudiates its earlier decisions upon the point here in issue. The provision defining tenure and providing for undiminishable compensation was adopted with unusual accord. There has been unanimity of opinion that, because in comparison with the legislative and executive the judicial department is weak, its independence is essential to our system of government. These safeguards go far to insure that independence. And, from the beginning, statesmen and jurists have agreed that the clause forbids diminution of judges' compensation by any form of legislation. The clause in question is plain: no exception is expressed; none may be implied. Its unqualified command should be given effect.
For one convinced that the judgment now given is wrong, it is impossible to acquiesce or merely to note dissent. And so this opinion is written to indicate the grounds of opposition and to evidence regret that another landmark has been removed.
I am of opinion that the judgment of the district court should be affirmed.
[ Footnote 2 ] '... I should not have troubled you with this letter, if there was any mode by which the question could be decided in a judicial proceeding. But all of the judges of the courts of the United States have an interest in the question, and could not therefore with propriety undertake to hear and decide it.' 157 U.S. at page 702.
[ Footnote 3 ] 13 Op.Attys.Gen. 161; but see the opinion of Attorney General Palmer, 31 Op.Attys.Gen. 475.
[ Footnote 5 ] See Wayne v. United States, 26 Ct.Cl. 274; Act of July 28, 1892, c. 311, 27 Stat. 306.
[ Footnote 6 ] See Judgments in Cooper v. Commissioner of Income Tax, 4 Comm.L.R. 1304, construing Section 17 of the Queensland Constitution Act of 1867 which prohibited 'any reduction or diminution of the salary of a Judge during his Term of office'; also, Judges v. Attorney-General for Saskatchewan, 1937, 2 D.L.R. 209, construing Section 96 of the British North America Act, 1867, that 'The Salaries ... of the Judges ... shall be fixed and provided by the Parliament of Canada' in connection with the Income Tax Act, 1932, of Saskatchewan.
[ Footnote 7 ] See Clark, Further Limitations Upon Federal Income Taxation, 30 Yale L.J. ; Corwin, Constitutional Law in 1919-1920, 15 Am.Pol.Sci.Rev. 635, 641-644; Fellman, Diminution of Judicial Salaries, 24 Iowa L.Rev. 89; Lowndes, Taxing Income of Federal Judiciary, 19 Va.L.Rev. 153; Powell, Constitutional Law in 1919-1920, 19 Mich.L.Rev. 117-118; Powell, The Sixteenth Amendment and Income from State Securities, National Income Tax Magazine (July 1923) 5-6; 20 Col.L.Rev. 794; 43 Harv.L.Rev. 318; 20 Ill.L. Rev. 376; 45 L.Q.Rev. 291; 7 Va.L.Rev. 69; 3 U. of Chi.L.Rev. 141.
[ Footnote 8 ] The cases, pro and con, are collected in the recent dissenting opinion by Chief Judge Bond of the Court of Appeals of Maryland in Gordy v. Dennis, 5 A.2d 69, 82. Particular attention should be called to the decision of the Supreme Court of South Africa, Krause v. Commissioner for Inland Revenue, (1929), So.Afr.R. (A.D.) 286, construing Section 100 of the South Africa Act, which had taken over the identical clause from Article III, Section 1, of our Constitution.
[ Footnote 9 ] The provisions regarding security of salary had their source in the Act of Settlement of 1700, 12 & 13 Will. III, c. 2, Sec. III, and the Act of 1760, 1 Geo. III, c. 23. See Holdsworth, The Constitutional Position of the Judges, 48 L.Q.Rev. 25; 2 Holdsworth, The History of English Law, 559- 64; 6 id. 234, 514.
[ Footnote 10 ] Public No. 32, 76th Cong., 1st Sess., c. 59, 26 U.S.C.A. 22(a). Section 209 of the same statute, 26 U.S.C.A. 22 note, however, provides that 'In the case of the judges of the Supreme Court, and of the inferior courts of the United States created under article III of the Constitution, who took office on or before June 6, 1932, the compensation received as such shall not be subject income tax under the Revenue Act of 1938 or any prior revenue Act.'
[ Footnote 1 ] c. 6, 44 Stat. 919, 28 U.S.C.A. 213.
[ Footnote 2 ] 22(a), c. 209, 47 Stat. 169, 26 U.S.C.A. 22(a).
[ Footnote 3 ] 22(a), c. 277, 48 Stat. 680, 26 U.S.C.A. 22(a).
[ Footnote 4 ] 22(a), c. 690, 49 Stat. 1648, 26 U.S.C.A. 22(a).
[ Footnote 5 ] Act of August 24, 1937, 2, c. 754, 50 Stat. 752, 28 U.S.C.A. 349a.
[ Footnote 6 ] The opinion is set forth in a footnote at page 160 et seq., of 3 Cranch.
[ Footnote 7 ] c. 119, 12 Stat. 472.
[ Footnote 8 ] Printed in 157 U.S. at page 701.
[ Footnote 9 ] Miller on the Constitution of the United States, p. 247.
[ Footnote 10 ] Section 33, 28 Stat. 557, in terms was much like 86 of the Act of 1862; it levied 'on all salaries of officers, or payments ... to persons in the service of the United States, ... when exceeding the rate of four thousand dollars per annum, a tax of two per centum on the excess above the said four thousand dollars' and made it the duty of disbursing officers to deduct and withhold the tax.
[ Footnote 11 ] 2B, 38 Stat. 168.
[ Footnote 12 ] 4, 39 Stat. 759.
[ Footnote 13 ] 213(a), 40 Stat. 1065.
[ Footnote 14 ] H.Rept. No. 767, 65th Cong., 2d sess , p. 29; Sen.Rept. No. 617, 65th Cong., 3d sess., p. 6; 56 Cong.Rec., p. 10370
[ Footnote 15 ] Gillespie v. Oklahoma is one of the decisions subjected to condemnatory comment in the concurring opinion in Graves v. New York ex rel. O'Keefe, 306 U.S. 466 , 59 S.Ct. 595, 603, 120 A.L.R. 1466, October Term, 1938. It is there said: 'A succession of decisions ( Gillespie v. Oklahoma is the first cited) thereby withdrew from the taxing power of the States and Nation a very considerable range of wealth without regard to the actual workings of our federalism, and this, too, when the financial needs of all governments began steadily to mount.'
At another place in that concurrence, the writer stated: 'The volume of the Court's business has long since made impossible the early healthy practice whereby the Justices gave expression to individual opinions. But the old tradition still has relevance when an important shift in constitutional doctrine is announced after a reconstruction in the membership of the Court. ... The arguments upon which M'Culloch v. Maryland, 4 Wheat. 316, rested ... have been distorted by sterile refinements unrelated to fairs.
These refinements derived authority from an unfortunate remark in the opinion in M'Culloch v. Maryland. Partly as a flourish of rhetoric and partly because the intellectual fashion of the times indulged a free use of absolutes, Chief Justice Marshall gave currency to the phrase that 'the power to tax involves the power to destroy.' ... The web of unreality spun from Marshall's famous dictum was brushed away by one stroke of Mr. Justice Holmes's pen: 'The power to tax is not the power to destroy while this Court sits'. Panhandle Oil Co. v. Mississippi, 277 U.S. 218, 223 , 48 S.Ct. 451, 453, 56 A.L.R. 583 (dissent).'
But, in the Gillespie case, Mr. Justice Holmes, speaking for the Court, had definitely applied the doctrine that the power to tax does involve the power to destroy.
In the Panhandle case neither the Court, nor indeed another justice dissenting, was impressed by 'The power to tax is not the power to destroy while this Court sits.' The statement is vague and may be read to imply a power that this Court never possessed. If taken to mean that we are empowered to regulate or to limit the exertion by Congress of its power of taxation, it justly may be regarded as hyperbole; if taken to mean that this Court has power to prevent imposition by Congress of taxes laid to discourage, to destroy, or to protect, then it is in the teeth of the law. See, e.g., Veazie Bank v. Fenno, 8 Wall. 533, 548; McCray v. United States, 195 U.S. 27 , 53 et seq., 24 S.Ct. 769, 775; Magnano Co. v. Hamilton, 292 U.S. 40 , 44 et seq., 54 S.Ct. 599, 601; Cincinnati Soap Co. v. United States, 301 U.S. 308 , 57 S.Ct. 764.
[ Footnote 16 ] 106, 107, 47 Stat. 401, 402.