Mr. Whitney's Argument for the United States.

upon articles of consumption from the first $4000 of one's income. Hence, the measure of this tax does not bear the slightest proportion to the values of land.

Moreover, the tax on land, when it is a direct tax, is a tax upon, and collectible out of, the land itself. Here there is not even a lien, for the tax, upon the land whose rentals have entered into the gross income of the tax-payer.

An income tax is no more a tax on land than is a succession tax when the succession is to land. Scholey v. Rew, 23 Wall. 331, is, therefore, in point. In that case the tax was even made a specific lien upon the land itself. The government relied on authorities holding that a covenant in a lease to pay taxes on land does not cover a tax imposed on the landlord in respect to the land. The court held that it was not a tax on land. See also Minot v. Winthrop, 162 Mass. 113, and cas. cit.; Wallace v. Myers, 38 Fed. Rep. 184.

In political economy a tax on all property or all income is not regarded as the equivalent of a series of special taxes covering all parts of the property or income. The same distinction is recognized by the law. Railroad Company v. Collector, 100 U. S. 595; United States v. Erie Railway, 106 U. S. 327; Society for Savings v. Coite, 6 Wall. 594; Hamilton Company v. Massachusetts, 6 Wall. 632; Home Insurance Co. v. New York, 134 U. S. 594. See also Van Allen v. The Assessors, 3 Wall. 573, 583; Bradley v. The People, 4 Wall. 459; Tennessee v. Whitworth, 117 U. S. 129, 136-7; Wilcox v. Middlesex County Commissioners, 103 Mass. 544; State Tax on Railway Gross Receipts, 15 Wall. at p. 294.

If the tax on rentals is so vital an element in the whole scheme as to make void the entire law if the rentals are not taxable by the rule of uniformity, then the Springer case is in point. While Springer's own particular income included no rentals of real property, nevertheless, the question was involved in his case; for if the law was void in toto as to persons whose income was in part made up of rentals, so it was void in toto as to everybody else also.

If the rentals are regarded as separable from the rest of the tax, then the Scholey case is still in point as already shown.

Mr. Whitney's Argument for the United States.

We do not discuss the suggestion that income from personal property is non-taxable, for two reasons; first, that the Hylton case settles the rule that a tax on personal property, at least a tax other than on all personal property at a valuation, is a duty or excise; second, that these appellants did not appear to have any income from personal property other than municipal bonds.

Municipal bonds. It is settled that the bonds of one State or its municipalities may be taxed by another State. Bonaparte v. Tax Court, 104 U. S. 592; but it is not settled whether they may be taxed by the Federal government. See dissenting opinion of Mr. Justice Bradley in Collector v. Day, 11 Wall. 113, 128, 129. The remarks of Mr. Justice Matthews in Mercantile Bank v. New York, 121 U. S. 138, 162, are obiter. Chief Justice Marshall regarded the question as left open, whether the Federal government could tax state bonds, even if it were decided that the State could not tax Federal bonds. McCulloch v. Maryland, 4 Wheat. 316, 435, 436. It has never been decided that the State could not include Federal bonds in a general property tax (in the absence of express prohibition by Congress), except in Bank of Commerce v. New York City, 2 Black, 620. See People v. Commissioners of Taxes, 23 N. Y. 192; 26 N. Y. 163. The power of the States was asserted by the dissenting Judges in Weston v. Charleston, 2 Pet. 449. The question was not involved in that case, however, and not decided by the court; for that was not a general property or income tax, but a special tax on certain named securities (p. 450), and it is undoubted that a special tax cannot be laid by the State on Federal securities, since the power to tax in that manner is the power to destroy; and therefore such a tax may justly be described as a tax upon the borrowing power of the government. No such argument can be drawn from the inclusion of Federal bonds in a general income tax. The power to tax in that manner would not be the power to destroy, by any reasonable interpretation. The Federal borrowing power could not be destroyed without destroying all the property in the State and reducing all its laborers to a condition of slavery, except those

VOL. CLVII-31

Mr. Edmunds' Argument for Moore, Appellant.

who were fortunate enough to divide its spoils. A general state income tax could not impede or disadvantage in any way the Federal right to borrow. The property of the lender was taxable before the loan. He simply changes its form. The tax goes on at the same rate. Exemption, on the other hand, is a positive advantage to the Federal borrower. If the citizen lends to the government, he will pay no more taxes to the State. He therefore is supposed to calculate the principal sum representing the interest he will thus save, and pays that principal sum, in the form of a premium, to the government. What is the net result? What is the net result? The government has confiscated the taxable value of some of the taxable property in the State, and then sold it to somebody for cash.

The question in the Bank of Commerce case never came before the court a second time, because Congress, by the act of February 25, 1862, c. 33, 12 Stat. 345, expressly exempted United States bonds from State taxation. The court's line of reasoning has not been sustained in other cases. The principle of the case has not been applied to other Federal agencies. Railroad Co. v. Peniston, 18 Wall. 5. The argument that, if the Federal bonds were taxable at all, the State could establish a general tax with exemptions, which would be the substantial equivalent of a special tax, and that the Federal courts would be unable to pass upon the propriety of the exemptions, has been overruled in Mercantile Bank v. New York, 121 U. S. 138, 161, 162.

Mr. George F. Edmunds for Moore, appellant in 915. Mr. Samuel Shellabarger and Mr. Jeremiah M. Wilson were with him on his brief.

I am first to consider whether my client, Mr. Moore, has any standing to be heard in this court. There are very important questions involved in this so-called income tax law. It is objected to his right to be heard by the judicial power of the United States against what he conceives to be, and what we believe and maintain to be an absolute and unauthorized invasion of his private rights, that Congress has said that he shall not be heard.

Mr. Edmunds' Argument for Moore, Appellant.

If he has no right under the Constitution to appeal to the courts of his country for protection against that which no law authorizes, and which is absolutely destitute of authority on the part of persons who thus undertake to invade his office, explore his books, and compel him to pay, and to finally decide in fact, so far as that goes, whether he has told the truth about it or not, and if they think he has not told the truth, to punish him by a penalty as a final judgment; if, in such a case, he cannot appeal to the courts, of course he has no business to be here.

But if the Constitution of our country has really created a judicial power of the United States, independent in itself, and standing on the rock of the Constitution-a department of the government to which the Constitution has imputed the authority and the duty to protect the citizen against unlawful and tyrannical invasions of his private rights — then he has a right to ask you to decide whether these invasions which are now threatened against him are those which the law has warranted, or are only those which have been invited by a body of respectable gentlemen, who had no right to speak, and who have now disappeared off the face of the political earth.

The Constitution declares that the judicial power shall extend to all cases in law and in equity arising under the Constitution and laws of the United States, and gives this Court original jurisdiction in such cases. The judiciary act of 1789 put the judicial power in motion, and it has continued so without change, as to the point about which I am speaking.

The statute which is supposed to bar Mr. Moore of the right to be heard in equity is the provision in Rev. Stat. § 3224, that "no suit for the purpose of restraining the collection or assessment of any tax shall be maintained in any court."

If that means any lawful tax, it is absurd. If it means, as it probably was intended to mean, to apply merely to questions of the amount of the assessment, of classification, of irregularities, of technicalities, etc., in one point of view it is consistent with public interest. But if it is meant, as I assume it to be, as a prohibition against every citizen to whom a man falsely pretending to be a collector or assessor of taxes comes,

Mr. Edmunds' Argument for Moore, Appellant.

without any real act of Congress behind him, and by the sheer arbitrary force of an executive branch of the government, invades his office and his books, and decides whether he has reported truthfully or not, and finally seizes his property, I say it is a declaration that Congress had no power to make.

The Constitution certainly regarded cases in equity that accorded with acknowledged, settled, and well-known historical principles and the historic practice of jurisprudence for hundreds of years, as proper ones for an appeal to a judicial tribunal; it said so, and it meant what it said. And when it declared that the judicial power should consider and decide, in cases brought before it, all cases in equity arising under the Constitution and laws of the United States, it was a function that the Constitution implanted in the courts, and one which no so-called act of Congress could abolish or diminish.

Suppose Congress says that in exercising the original jurisdiction of this court no suit in equity shall be brought by one State against another, or respecting an ambassador. Can we think that there would be any want of unanimity in this supreme tribunal in holding that it was a matter beyond the competence of Congress to say that you could only exercise a part of what the Constitution had given you, and that you should not, in respect to particular States or ambassadors, or particular topics that fell within the range and scope of the Constitutional description and boundary of your powers, permit them to be heard while you did exercise your powers in all other cases?

All such action of Congress defies the Fourteenth Amendment, if that amendment applies to the United States (as I think it does) as well as to the States, for it declares that the equal protection of the laws is to be everywhere inviolable for the protection of everybody.

So that I maintain, with confidence and hope, that this court will have no difficulty in saying that this prohibition of Congress against this particular kind of suit, on account of its being a suit in respect of a tyrannical and unconstitutional attempt on the part of the person who holds a particular office to invade the private affairs of my client, is no impediment to your consideration of the case.