that where the defendant dictates a slander or furnishes a malicious statement to a reporter of a newspaper for publication, and with the intention and understanding that it will be published, and such reporter afterward commits it to writing and causes it to be published as given to him, the defendant is responsible for the libel, although he may not see what is written until after the same is published; and especially is this true in a case where the defendant subsequently indorses the publication as correct and adopts it as his own. Judge Johnston, in writing the opinion in regard to this subject, says: "It is next contended that the facts in the case are insufficient to sustain a conviction. It appears that H. H. Fowler, who was a reporter on the Topeka State Journal, and had frequently visited the office of the defendant, who was then secretary of state, in quest of news for publication, went to the office on April 15, 1893, and inquired if he had any news for him. The defendant replied: 'I have something for you this time, but I don't know whether I will tell you or not.' He then proceeded to state the defamatory words that were afterward published in the paper, and that were afterward set forth in the information. The defendant then told Fowler that he could prove all that he had stated and a great deal more, and that he would furnish him a further statement in a few days. Fowler went immediately to the State Journal office, and reduced the statement which he had received from the defendant to writing, using the exact language of the defendant, except, possibly, as to one or two unimportant words. The article was published in the State Journal of that day, and, when the reporter called upon the defendant two days later, he said to him: be proved and submitted to the jury to be considered by them upon the question of exemplary damages. Under such circumstances, a retraction after suit brought may be as valuable and effective as one published before, and there is the same reason for the submission to the jury of the one as the other. But while taking these views, favorable to publishers, the court particularly holds that where the publisher's attorney wrote a note to the attorney for the other party offering to publish any retraction of the article he would write, and the offer was declined by the latter, the trial judge was right | in holding that the mere offer to publish such retraction as plaintiff's attorney would write was incompetent for any purpose. The reason given is that the writing of such a retraction would not have been within the line of the duty of plaintiff's attorney as attorney in the action. If the defendant had procured him to write the retraction, he would have acted as its agent, and not as the agent of the plaintiff. The plaintiff would in no way have been responsible for any thing that was written by the attorney in response to the offer, and could in no way be affected by the refusal of the attorney to write. The offer and refusal was a transaction between the defendant and the plaintiff's attorney, which did not legally concern the plaintiff. But even if the defendant could have had the benefit of a retraction published after the commencement of the action, the mere offer to publish it gave it no benefit or advantage. It should have published the retraction in good faith, promptly upon the commencement of the action, and then it would have been in a position to claim whatever benefit could legally flow from such publication. Another point made was, that inasmuch as the publisher or publish-Well, Mr. Secretary, I think you have stirred ing company was in such haste to publish the matter in question that it made no inquiry whatever of the plaintiff or his firm, or of any one else, as to the truth of the charges made therein, the trial judge did not transcend the bounds of a proper judicial discretion in saying to the jury that the article was published 'wantonly, recklessly and with an utter disregard as to whether it was true or false.'" In the case of State v. Osborn (38 Pac. Rep. 572) the Supreme Court of Kansas have held up the animals this time.' In reply, he said: his own. * porter for a newspaper, and the statement should afterward be printed or published, will not be guilty of libel. On the other hand, if a person knowingly dictates a slander to a reporter for publication, and knowing that it would be published, and it is afterward published as given by him, he is responsible for a libel, and may be punished equally with the one who aided or united with him in making the (Queen v. Cooper, 8 Q. B. 533; Clay v. People, 86 Ill. 147; Adams v. Kelly, 1 Ryan & M. 158; Clifford v. Cochrane, 10 Ill. App. 577; Wilson v. Noonan, 27 Wis. 598; Miller v. Butler, 6 Cush. 71; Townsh. Sland. & L., § 115.)" same. He said: 'As I hoped. I have stirred up the nest of venomous serpents of the Republican party in a little interview I had with the Journal reporter a day or two ago, and I am gratified and highly amused to find them come back at me with the answer, 'liar, liar.' * My authority for my statements in the Journal is the best element within the Republican ranks, who claim these things stated to be true,' etc. It is contended that as the defendant did not specifically request the publication of his statement, and did not see it until it appeared in the paper, and as he had no connection with the State Journd, he cannot be held liable for the libel. While the defendant testified that he did not make the statement for The appearance of the New York Law Rethe purpose of publication, or with any idea view demonstrates most clearly that knowledge that it would be published, the evidence of the and ability will show itself sooner or later; the State fairly tends to show that the statement author of the first article on "Corporation was made with the expectation and understand- Legislation in New York, Recent and Perspecing that it would be published. Taking the tive," and the consulting editor is the Hon. evidence of the witnesses for the State, it would Charles A. Collin, who was recently a member show that he gave him the statement for publi- of the Statutory Revision Commission, legal cation; that the statement he made was writ- adviser to the Governor and the great originaten and published as it was given; and that, tor of most of the important legislation which after it was published, he admitted its correct- emanated from the granite building on the hill ness, and promised that an additional statement at Albany. In the lecture room, as counsel, as would be made in a few days; and that, finally, a writer and as a creator of laws, there is always in a few days afterward, in a written statement present in Professor Collin, that indomitable to the State Journal, he admitted making the spirit and perservance which has been omnistatement which was published, and specifically present in all his work and which is so seldom said that it was his own statement. All who met with in the latter-day lawyer. His theory are concerned in the making and publication of is always resultant in practice, which too seldom a libel are alike guilty under the law. If one is seen nowadays. The article which Professor composes and dictates a false, defamatory state- Collin has contributed to the first number of ment, knowing that it will be written and pub- this new periodical is most interesting and inlished, and it is written and published, by an- structive, as it shows most concisely and in a other, each are equally liable for the writing, very clear manner the ideas which have existed and both may be prosecuted and punished for in creating and framing the statute law of the libel. Our statute provides that 'every person State and especially the corporation laws as who makes or composes, dictates or procures they now stand. There are several other very the same to be done, or who willfully publishes interesting articles, and a general tone of or circulates such libels, or in any way know- kindliness in the leading editorial comment on ingly and willfully aids or assists in making, legal journalism. The astuteness of the writer publishing or circulating the same, shall be pun- in patting each and every periodical on the ished by imprisonment in the county jail not back and saying in so many words, “You are more than one year or by a fine not exceeding a good fellow, but just give us a chance and $1,000.' (Gen. Stat. 1889, par. 2445.) Of you will wish you had never been born," is too course, a person who casually makes a false apparently from the pen of a gentleman whom statement to another, with no purpose or inten- it might not be hard to mention. To this tion that it shall be written, printed or pub-protege from Cornell, we extend a welcome to lished, even though the other person be a re- the mystic circle. ON THE CONSTITUTIONALITY OF THE The question was whether the tax on carriages was INCOME TAX. By CARMAN F. RANDOLPH, Author of "The Law of Eminent Domain." IN * * ** * * N section 27 of the Revenue Act recently passed by Congress it is provided that " There shall be assessed, levied, collected and paid annually upon the gains, profits and income received in the preceding calendar year by every citizen of the United States, whether residing at home or abroad, and every person residing therein*** a tax of two per centum on the amount so received over and above $4,000 "There are other provisions relating to the taxation of incomes and there is more of this section, but the excerpt sufficiently presents the question-whether the imposition of this tax violates the constitutional declaration that direct taxes shall be apportioned among the several States on the basis of population? Several objections have been taken to the constitutionality of the law, notably these: The income tax is a capitation tax and, according to the letter of the Constitution, should be apportioned. Assuming the tax to be indirect generally it is unconstitutional, nevertheless, so far as it relates to income from land, because this is in effect a tax on the land itself and a land tax is held by the Supreme Court to be a direct tax. Assuming the tax to be indirect it is not uniform within the meaning of the Constitution. The radical question in respect to the act is the one I shall consider-whether an income tax is a direct tax within the meaning of the Constitution? I. The Supreme Court have twice held that an income tax is not a direct tax. Therefore it is not permissible to discuss the question seriously unless there can be shown a probability at least that the rule stare decisis is not necessarily operative so far as these decisions are concerned. The decisions of the Supreme Court relating to the imposition of direct taxes are few. In the first case, Hylton v. United States (3 Dall. 171,) it was held that Congress might impose a uniform tax on carriages. While much of the reasoning employed in this case has been approved in decisions involving an income tax, the case is not a direct authority for the present law. A tax on carriages may be readily differentiated from the present tax. It is a tax on expense, on consumption, while the present tax is a tax on income, whether devoted to expenditure or investment, and not only on income as commonly understood, but on all gains and profits whatever. It is not the decision in the Hylton case but certain definitions accompanying it which have served as the basis of the income tax decisions. These definitions are subject to a grave infirmity. The court assumed that the phrase direct taxes was ambiguous. direct. The court decided that taxes on expense or consumption were not direct, which was sufficient to sustain the particular tax in question. But the nition of direct taxes. court went further and suggested a general defiThis suggestion was, of course, a mere dictum. It was, moreover, improper, for no rule of judicial conduct is more salutary than that which imposes self-restraint upon the faculty of generalization, especially in constitutional questions. Passing by the opinion in Veazie Bank v. Fenno (8 Wall. 533), and Scholey v. Rew (23 Wall. 331), which approve incidentally the constitutionality of an income tax, we come to the cases of Pacific Insurance Co. v. Soule (7 Wall. 433), and Springer v. United States (102 U. S. 586.) In these cases the Supreme Court held that an income tax was not a direct tax. Is there anything in these decisions or in the circumstances of their delivery that weakens the presumption of impregnability attaching to the judgments of the Supreme Court? Now it must be admitted that the fact that the former income tax was a war tax in nowise differentiates it from the present one. The doctrine of one Constitution in war and another in peace is untenable. It is much like saying-no Constitution in war. But the effect of a struggle for national existence upon the minds of those charged with the interpretation of laws intended to strengthen the government is real albeit imponderable. Questions thus decided may be in calmer times re-examined without disrespect to their authors, and discarded without detriment to the great principle behind the doctrine of stare decisis. A familiar rule for the construction of public laws is that the law shall speak for itself if possible, but that in case of ambiguity the intent may be gleaned the history and situation of the country," to from " use the phrase of Chief Justice Marshall in Preston v. Browder (1 Wheat. 121), or as Chief Justice Taney expressed it in Aldridge v. Williams (3 How. 24), from the "public history of the times." The inquiry into contemporary history and opinion justifies itself only by the accuracy of its results. If the question to be settled is not a mere technicality but a broad principle of constitutional law, the inquiry must be upon broad lines. Both of these principles of construction have been violated in the Hylton case and in the income tax cases. The search for truth seems to have been superficial. The results are petty. Indeed, there is much reason for believing that the Supreme Court's classification of taxes rests upon a statement made by Alexander Hamilton, as counsel for the government in the Hylton case. II. The Constitution declares that "no capitation or other direct tax shall be laid unless in proportion to the census or enumeration hereinbefore directed to What is meant by a direct tax as the word is used in the Constitution? Two definitions may be extracted from the decisions of the Supreme Court. (a) In the Hylton case Justice Chase said: "I am inclined to think, but of this I do not give a judicial opinion, that the direct taxes contemplated by the Constitution are only two, to-wit, a capitation or poll tax, simply without regard to property, profession or any other circumstance, and a tax on land." Justice Paterson said: "Whether direct taxes, in the sense of the Constitution, comprehend any other tax than a capitation tax and tax on land is a questionable point" and, further, "I have never entertained a doubt that the principal, I will not say the only objects, that the framers of the Constitution con ing their expense, which it is supposed in most cases will be nearly in proportion to their revenue. Their expense is taxed by taxing the consumable commodities upon which it is laid out." 3 Wealth of Nations, 331, Rogers' ed. Later economists, whether defining a direct tax aş one demanded from the very person who it is intended shall pay it, or as being other than a tax on consumption, or as a tax levied on constant and recurring occasions, agree substantially in this, that an income tax is a direct tax. Although a definition of the economists is certainly not binding on a court, perhaps hardly a precedent in point of law, it is nevertheless worthy of serious attention especially when as in the present case it is backed by the weight of economic authority. We will now review briefly our fundamental laws on the subject of apportionable taxes. The Continental Congress resolved that the United Colonies be pledged for the redemption of bills of credit which had just been emitted and "that the proportemplated as falling within the rule of apportion- tion or quota of each respective colony be detertemplated as falling within the rule of apportion-mined according to the number of inhabitants, of ment, were a capitation tax and a tax on land.” Justice Iredell said: "There is no necessity or propriety in determining what is or is not a direct or indirect tax in all cases. * * * A land or a poll tax may be of this description" (¿. e. direct). These observations are followed by the formal declaration of the court in Pacific Insurance Company v. Soule, and Springer v. United States, that the only direct taxes are taxes on real estate and capitation taxes. This definition will be tested by the opinions of political economists and then by the meaning of the word direct as it appears to have been understood by the framers of the Constitution. all ages, including negroes and mulattoes in each colony." (Dec. 26, 1775, I Jour. Cong. 215.) In Jefferson's sketch of the debates on the Articles of Confederation (Iv. Elliott, IX) we learn that it was proposed to incorporate substantially the foregoing resolution in the articles as art. VIII. In the course of discussion Dr. Witherspoon asserted that value of lands and houses was the best estimate of the wealth of a nation and that it was possible to obtain such a valuation. Witherspoon's opinion seems to have borne fruit for art. VIII, as adopted, reads: "All charges of war, and all other expenses that shall be incurred for the common defense and Turgot, the most famous French economist and general welfare, and allowed by the United States statesman of the pre-revolutionary period, wrote: in Congress assembled, shall be defrayed out of a "There are only three [taxes] possible-the direct common treasury which shall be supplied by the on land-the direct on persons * * ** the inseveral States, in proportion to the value of all land direct tax, or tax on consumption." (Plan d'un within each State granted to or surveyed for any Mémoire sur les Impositions. Daire II, 394, 396.) person as such land, and the buildings and improveOf all the leaders of French political thought no one ments thereon shall be estimated according to such appears to have been better known or more appre-mode as the United States in Congress assembled ciated in this country than Turgot. Indeed, the above classification of taxes is suggested in a paper he prepared for Franklin's use. (See Dunbar-The Direct Tax of 1861, Quart. Jour. Econ. III, 438). Adam Smith who represented, indeed almost personified, English economic science in the last century, did not draw any definite distinction between direct and indirect taxation, but wrote this striking paragraph: "The impossibility of taxing people in proportion to their revenue by any capitation, seems to have given occasion to the invention of taxes on consumable commodities; the State not knowing how to tax directly and proportionately the revenues of its subjects endeavors to tax it indirectly by tax shall from time to time direct and appoint." The following references to apportioned taxes are contained in the plans for a Constitution formally presented or known to the Constitutional Convention. Hamilton's First Plan (art. VII, § 4.) "Taxes on lands, houses and other real estate and capitation taxes shall be proportioned, in each State, by the whole number of free inhabitants * * * Patterson's plan provided for requisitions upon the States in proportion to the number of free inhabitants. In Brearly's draft of the report of the committee of August 6, 1787, it is provided that "No capitation tax shall be laid unless in proportion to the census hereinbefore directed to be taken." It appears then that the convention had before it these suggestions: That the taxes to be apportioned among the States should be poll taxes or land taxes or poll and lands taxes-all very definite and exclusive terms. The convention adopted none of them, but did adopt the phrases direct taxes and capitation or other direct tax. The adoption of a generic definition rather than the specific ones suggested shows conclusively that direct taxes might be other than taxes on heads and land. Indeed, the fundamental distinction between direct and indirect taxes was suggested by Gouverneur Morris, who it seems introduced the word direct. He proposed that taxation should be in proportion to representation, but modified his proposition by limiting it to direct taxes, admitting that "with regard to indirect taxes on exports and imports and on consumption the rule would be inapplicable. (Elliott IV, 302.) In Springer v. United States, Justice Swayne says: "Perhaps the two most authoritative persons in the Constitutional Convention touching the Constitution were Hamilton and Madison. * * * In another letter of the 7th of February, 1796, referring to the case of Hylton v. United States, then pending he (Madison) remarked. There never was a question on which my mind was better satisfied, and yet I have very little expectation that it will be viewed in the same light by the court as it is by me.' Whence the despondency thus expressed is unexplained." Had the learned justice carefully studied the letter from Madison from which he gives an extract where I have placed asterisks, he would have found the source of Madison's despondency in his belief that the carriage tax was direct and therefore unconstitutional as levied. The letter is to Jefferson, dated May 11, 1794. Referring to the report of a committee on taxation he writes: "It particularly included, besides stamp duties, excises on tobacco and sugar manufactured in the United States, and a tax on carriages, as an indirect (italicized by Madison) tax and the tax on carriages succeeded, in spite of the Constitution, by a majority * * of twenty, the advocates of the principle being reinforced by the adversaries to luxury (this is the sentence quoted by Justice Swayne) * * ** * This is another proof of the facility with which usurpation triumphs where there is a standing corps always on the watch for favorable conjunctions, and directed by the policy of dividing their honest but undiscerning adversaries. *By breaking down the barriers of the Constitution and giving sanction to the idea of sumptuary regulations, wealth may find a precarious defense in the shield of justice." With regard to the other statesman to whom Justice Swayne refers as an authority on the question of direct taxes-Alexander Hamilton-it is true that he wrote in 21 Federalist, "Those (taxes) of a direct kind which principally relate to land and buildings may admit of a rule of apportionment." But a careful reading of this important paper will show that nothing was further from Hamilton's mind than a classification which would place the present income tax within the category of direct taxes. He writes: "There is no method of steering clear of this inconvenience (that is, the inconvenience of quotas and requisitions) but by authorizing the national government to raise its own revenues in its own way. Imposts, excises, and in general all duties upon articles of consumption may be compared to a fluid which will in time find its level with the means of paying them. The amount to be contributed by each citizen will in a degree be at his own option, and can be regulated by an attention to his resources. * It is a signal advantage of taxes on articles of consumption that they contain in their own nature a security against excess. * Impositions of this kind usually fall under the denomination of indirect taxes. * * * * * Upon reviewing the debates in conventions and the opinions of the statesmen of the time, we cannot find any solid ground for the assertion that the phrase direct tax as it appears in the Constitution is to be divested of its apparent force as a general definition and reduced to a specific definition by interpolating the words capitation and land taxes. It is true that we find statements to the effect that direct taxes are land and capitation taxes, but these are not to be understood as general definitions but as statements of things within the knowledge of their authors. They are not to be taken as exclud ing income taxes for the very good reason that the taxation of incomes was not in evidence at that period. The tax was practically unknown in England in the eighteenth century, at least before 1798. An attempt to tax incomes in Queen Anne's reign was unsuccessful. (2 Sinclair's History of the Public Revenue, 18.) While it seems that a sort of income tax had been resorted to in Massachusetts in the early days, it is worthy of note that Theodore Sedgwick of Massachusetts, in the debates in Congress on the carriage tax, spoke of an income tax as a direct tax. Although the question of revenue was the most burning of all civil questions, although everything relating to ways and means was studied and discussed by the statesmen of the day, there appears to be no reference to the taxation of incomes in the voluminous writings of Hamilton, Franklin, Adams, Washington, Madison and Gallatin. When statesmen spoke of direct taxes as land and capitation taxes they are not to be understood then as defining such taxes but as illustrating them by the only examples within the range of their knowledge and experience. I shall conclude this part of the investigation with |