revolution rouses them like a fire alarm in the night from their indifference. True statesmanship looks at the future as well as the present, and makes its chief concern the shaping of peaceful policies so that progress may be assured and revolution may be avoided. THE SOCIAL AS DISTINGUISHED FROM THE LEGAL DUTIES OF PROPERTY. I have thus far spoken only of the legal rights and the corresponding legal duties of property, namely, duties in the lawyer's sense that their performance is or may be enforced by the power of the State. But an important aspect of my subject remains to be noticed. I refer to what, in lawyers' phrase, are termed the imperfect duties of property owners, meaning hereby that they are imperfect only in the sense that, lying beyond the boundaries of civil law, their performance is not enforced or enforceable by the tribunals of the State. These may, for convenience, be called the social as distinguished from the legal obligations of property Owners. -66 wealth. Riches suddenly acquired are especially obnoxious, and every body tries to avoid the splatter and splash of newly mounted pride." Bearing himself ever with modesty, it is pre-eminently a rich man's duty to identify himself with the communal life in the midst of which he lives and bring to bear for its good the power and influence which wealth always gives. If he is wise he will even cultivate popularity, not by cheap arts, but by considerate, active and daily beneficence. The pulsations of his life will be felt for good throughout the community. It is a duty of perpetual obligation on the part of the strong to take care of the weak, of the rich to take care of the poor; and the rich man who fails to interest himself actively in education, in public improvements, and public and private charities, falls not only below the ideal of good citizenship, but he fails to discharge toward society the obligations which spring from the mere possession of large wealth. In no other way can the envy, and even hostility, of the poor toward the rich be so successfully repressed; and therefore the recognition of these social duties not only satisfies a moral obligation, but it is a course founded on a policy of the profoundest wisdom. A public sentiment is rapidly forming which views as a reproach a very rich man who lives or living dies without connecting himself and his name and memory, by substantial benefactions, with works educational, philanthropic or charitable, for the benefit and welfare of his fellow-men. I say it with emphasis, that wealth has some important lessons yet to learn and put into practice. Our very rich men have learned how to gain wealth. They must now learn the more difficult lesson how to use it. Man lives not by bread alone. In this domain the example and doctrines of the Heavenly Dreamer of the Gallilean Hills, the Divine Teacher, the Blessed Saviour, have unrestricted scope and are destined, as the world grows up to their fuller conception, to a wider and more beneficent sway. The good of His children, who comprise the whole family of man, was the sum total, the beginning and the end of the divine philosophy which was exemplified in His life and teachings. He went about doing good. The fine expression of Kant, that " Humanity is the true end of all our efforts," is essentially borrowed from Him of whom his great apostle said, "He was touched with the feelings of our infirmities." We, then, that are If our statesmen and legislators shall adopt the strong ought to bear the infirmities of the weak." line of policy which I have endeavored to set forth, "Come unto me all ye that labor and are heavy and if the possessors of large properties shall coladen and I will give you rest." The first beatitude, operate with them in the mode I have indicated, we the opening words of the Sermon on the Mount, was may turn our gaze toward the future of our beloved the saying, at once bold and compassionate, country, not with gloomy forebodings, but with "Blessed are the poor.' And afterward came the serene cheerfulness and with the highest hopes. promises of infinite preciousness: "Whoever shall The institution of private property will remain, and give to drink unto one of these little ones a cup of there will be no revolutionary overthrow of the excold water only in the name of a disciple, verily Iisting state or social fabric by any mode of social แ say unto you, he shall in no wise lose his reward." Inasmuch as ye have done this unto one of these, even the least, ye have done it unto me." If I were required to sum up in one sentence the lesson which existing conditions ought to teach us, it would be the Christian lesson that we must increase and deepen and quicken the sense of the responsibility of society for the welfare of all its members. The possessor of a large fortune, no matter how honestly acquired, and however firm and exclusive in legal theory is the right of ownership, and how ever fully he may discharge his legal duties, is yet a a debtor to the community. His right and title to his property are of positive institution. The power of the State has protected and preserved it, and the existence of organized society has conferred upon it its chief value. In short, property has in an important sense a public as well as a private side. The owner of a great fortune owes to society manifold obligations which are entirely beyond the range of legal cognizance. Such a fortune gives power, and power always involves correlative duties. Over some of these let me cast a rapid glance. I do not stop to mention that a rich man ought to avoid the vulgarity of an ostentatious display and parade of istic or communistic attack. But if we are blind to history and to duty, if we idly drift and do nothing, then, with an overcrowded population pressing with augmenting force upon the means of subsistence, with the hopeless separation of the rich and the poor into distinct, hostile and incommunicable classes without common interests and common sympathies, and with the growth of a proletariat armed with the ballot in one hand and a gun in the other, the prediction of Lassalle, the great orator of German iconoclastic socialism, may come to pass - may within the next century come to pass, even in this goodly heritage of ours: "The goddess of revolution, after the lapse of a certain time, will force an entrance into our social structure, amid the convulsions of violence, with wild streaming locks and brazen sandals on her feet." INSURANCE-PROOFS OF LOSS WAIVED.— -Acceptance of a premium by an insurance company after knowledge of a loss occurring while the premium was in default waives the forfeiture, and does not merely revive the policy as to the future. (Continental Ins. Co. of New York v. Chew [Ind.), 38 N. E. Rep. 417.) The Albany Law Journal. ALBANY, FEBRUARY 2, 1895. Current Topics. [All communications intended for the Editor should be addressed simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions, or other business matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.] carefully the question whether the tax upon incomes levied by the revenue act of Aug. 28, 1894, is constitutionally enacted, and my opinion is that it is not, for the following reasons: This tax is either a direct tax or a tax in the nature of a duty, impost or excise. If it be a direct tax, the Constitution requires that it shall be apportioned among the States according to their respective populations. If it be a duty, impost or excise, the Constitution requires that it shall be uniform throughout the United States.' The question whether or not an income tax is a direct tax was raised under the income tax law of June 30, 1864, and the Supreme Court in several decisions held that it was not a direct tax, and therefore not subject to the constitutional rule requiring apportionment among the States according to population. These decisions, however, leave us in no doubt as to the category in which the Supreme Court placed an income tax, as in at least two of the cases it expressly says that an income tax is not a direct tax, but an excise or duty. This brings me to the important question in the case. If it be an excise or duty, is it so enacted as to be uniform throughout the United States? This question of uniformity was not raised in the decision before adverted to because, under the income tax law of 1864, there was no reasonable ground to complain of any discrimination or want of uniformity. I am not of opinion that there are such discriminations in the income tax law of August 28, 1894, in favor of certain classes of persons as destroy the uniformity required by the Constitution. The subject-matter of the act is a tax on incomes. The uniformity required by the Constitution is uniformity of the tax on all incomes. It was intended that all taxpayers should be measured by the same rule. doubtedly, a tax levied on all incomes, with a reasonable exemption applicable to all incomes, could be constitutionally enacted. act of 1894 been thus enacted? constitutional income tax law there can be but two classes of persons first, persons without The incomes; second, persons with incomes. persons with incomes, whether natural or arThis is tificial, must all be treated alike. Is the tax the mandate of the Constitution. on incomes, under the act of August 28, 1894, "In reply to your inquiry, I have considered uniform on all incomes throughout the United UCH has been written by the most prominent lawyers of the country on the unconstitutionality of the income tax, and there have been few, indeed — in fact, none that we know of, who have openly defended the most vicious statute that ever was enacted, at a time when war or some other calamity did not demand such extreme legislation. One or more pseudo-suits have been brought in such a way as to convince the most impartial on-looker that it was not an honest desire to test the constitutionality of the law which prompted parties to begin them. Some have been commenced in direct violation of United States statutes prohibiting such an action in such a manner, and they will undoubtedly do much to injure the proper determination of this matter. Of such pseudo-suits and of their instigators it can only be said that it is not very difficult to follow the peculiar sinuousities and obvious machinations of some, who, either in sheep's hides or wolves' skins, show their shallowness and hypocrisy in the deserved failure of their piratical enterprises. And those who truly seek that justice should be done must not be discouraged, and, as in the past, we shall always be glad to devote the columns of this journal to articles which will directly or indirectly influence a just and equitable settlement of this matter, which would be a declaration by the Supreme Court of the United States that the income tax of 1894 is unconstitutional. We have had written for the JOURNAL an article by Carman F. Randolph, author of the work on Eminent Domain, on the unconstitutionality of the income tax of 1894, which we will publish within a few weeks, and which, we trust, will prove of great benefit to the opponents of the existing law. We also give an opinion by William C. Hannis, of Philadelphia, on this subject, which is as follows: Un Has the Under a VOL. 51 No. 5. States? A cursory reading of the act will show it is not, because: 1. The act professes to exempt all incomes of $4,000 and under, yet, if a citizen has an income of $4,000 or less, and it is all invested in corporate shares, there is no exemption at all, for the corporations in which the shares are held are required by the act to deplete the net earnings to which the shareholder is entitled by the amount of the income tax. Thus, a person so situated is deprived of the exemption accorded to others. (2.) If several persons, each having a taxable income, happen to live together as one family they are jointly entitled to but one exemption of $4,000, instead of $4,000 on each income. Here again is want of uniformity. (3.) The salaries due to State, county or municipal officers are exempt from the payment of the income (4.) All corporations or associations for charitable, religious, educational, or beneficial purposes; all building and loan associations which loan to their shareholders only, and a large class of insurance companies and savings institutions are exempted from the payment of the income tax. (5.) The income on certain United States bonds is exempted from the tax. If it be urged that the United States could not repudiate its contract with bondholders that their bonds should be free of tax, it is a sufficient answer to say that the Constitution requires a uniform tax on incomes, and if it exonerates one person from the payment of the tax it thereby releases all. At the same time, as the act provides that upon failure to make a return the tax official may arbitrarily make a return for you, and impose a penalty of 50 per cent in addition, I would advise that a return be made under protest, and then contest the attempt to collect the tax. Thus, if the court should reach a different conclusion from mine, you will have only incurred the costs of the suit, and will not be subjected to the payment of a perhaps excessive tax with a 50 per cent penalty added. There are other features of the act, such as the taxing of incomes earned prior to the passage of the act, its inquisitorial character, the arbitrary and unusual powers conferred on tax officials, the impairment of contracts involved in it, all of which go to make it very obnoxious, but in my judgment, however unwise, are within the power of Congress." It is growing to be more and more apparent that either some legislation should be enacted or some agreement reached between capital and labor by which strikes can be avoided and a peaceful settlement made of questions which arise between the two great industrial forces which contribute so greatly to the material wealth and prosperity of the country. Aside from the loss of life and property, the continuance of even a show of force tends to weaken the respect for labor and capital, and the utility of the government under which they The intervention of the courts in this matter has been in few cases beneficial, and has rather tended to increase dissatisfaction between master and servant, whose relations cannot cease, and could be more beneficial to each other and to the increasing wealth of the country, if the relation was such as would tend to promote the interest of each other rather than to cause each other all possible injury and harm. It is apparent that no legislation can be enacted which will prevent the association of workmen, and it is doubtful whether such an expediency would be beneficial, while it is impossible, as has been shown, to prevent the moneyed interest of the country from caring for each other's benefit and advantage. Like many of the evils which confront the welfare of the country, the cause is apparent but the remedy is difficult to apply, because it deals with the nature and constitution of men. On the one act. Of course, an act may be unconstitutional in part and valid as to the remainder, if the remainder is so distinct from and independent of the unconstitutional part that it can be enforced without reference to it. For instance, the income-tax law is comprised in but a few sections of a voluminous revenue act, and the blotting out of the entire income sections would not interfere with the enforcement of the other independent revenue sections. But the want of uniformity lies at the root of every provision of the income-tax sections, and they cannot be enforced without recognizing the discriminations in the act. Those deprived of their exemption cannot have it restored to them. Those exempted cannot be taxed. For the foregoing reasons I am of opinion that so much of the revenue act as provides for an income tax has not been constitutionally enacted, and is therefore null and void. cent of the great fortunes of the United States are said to be derived from permanent monopoly privileges which ought never to have been granted. I do not mean to say that all great fortunes exceeding a million have been acquired by immoral means, but such as have not are the exception, and to limit the privilege of disposing of more than a million by devise or descent would not affect one in 10,000 of the people. In short, such limitations would tend to discourage any honest enterprise or industry but stock-jobbing, trickery and questionable methods of acquiring vast fortunes." Even the United States courts did not escape his attention for he refuses to recognize any justice in their attempts to uphold the law, and in this respect says: side, it is apparent that the laborer desires the greatest possible return for his services and the shortest possible working hours, while the capitalist most anxiously seeks to obtain exactly the opposite results. The report of the commissioners on the recent Chicago strike, and the failure of the State Board of Mediation and Arbitration in the Brooklyn troubles, make it apparent that such a body so constituted is of little practical benefit in bringing the parties to an amicable settlement of any difficulty. The Hon. Lyman Trumbull, formerly justice of the Supreme Court of Illinois, and later Senator of the United States, delivered, some time ago, an address before a meeting of the members of the Populist party in Chicago. He said in speaking of the wage-earners: "They see around them in the possession of favored corporations and the pampered few all the magnificence and luxury which accumulated wealth can bestow, while they toil and even suffer for the means, the God-given right, to live. Is it any wonder that discontent prevails among the masses and that they act in concert in the effort to improve their condition when such a state of things exists? The happiness of the people is the happiness of the individuals which compose the mass. Laws which open the door to large fortunes by devise, by inheritance or speculation have no tendency to promote the happiness of the people at large and often not even the happiness of those for whose benefit they are made." He then, in speaking of the remedy for these evils, said: "Neither strikes of the laboring classes which array against them the money power and the govern-ish for contempt by fine and imprisonment any mental power which controls, nor the governmental control of the great railroad and other corporations will remove the existing conflict between capital and labor which has its foundation in unjust laws enabling the few to accumulate vast estates and live in luxurious ease while the great masses are condemned to excessive toil, penury and want. What is needed is the removal of the cause which permits the accumulation of the wealth of the country in a few hands, and this can only possibly be brought about by a change of the laws of property. The remedy for this growing state of affairs would be to restrict the formation of corporations to such as are formed for public purposes or such as the public have an interest in. Seventy-eight per "Of late years, United States judges have assumed jurisdiction they would not have dared to exercise in the earlier days of the republic. They now claim the right to determine the extent of their jurisdiction and enforce such orders as they think proper to make. These Federal judges, like sappers and miners, have for years silently and steadily enlarged their jurisdiction, and unless checked by legislation they will soon undermine the very pillars. of the constitution and bury the liberties of the people beneath their ruin. To vest any man or set of men with authority to determine the extent of their powers and to enforce their decrees, is of the essence of despotism. Federal judges now claim the right to take possession of and run the railroads of the country, to issue injunctions without notice, and to pun one who disputes their authority. Congress some years ago passed an act limiting the powers of Federal judges to punish for contempts, except such as are committed in their presence, or by officers of their courts, or in disobedience of some lawful order. But what protection does this afford the citizen, when the very Federal judge who issues the order passes upon its legality?" It cannot be asserted that this remedy for one of the causes of labor troubles would be fair and just, and it cannot be considered that all restrictions should be placed upon capital, while labor should received nothing but favors and have no limitations placed on their action or privileges. It would not be well. to go to such an extreme as is hinted at in the report of the strike commission and to say that there was not any fault on the part of the wage-earners, and it is only fair and proper to restrict each factor in the present question in a proportionate and proper manner. We think that a little advance is made in the proposed law which was introduced on the 17th of January, 1895, by Mr. McGann in the House of Representatives. The title is, "A bill concerning carriers engaged in interstate commerce and their employes," and the first section provides that the provisions of the act shall apply to any common carrier, their agents, officers and employes engaged in the transportation of passengers or property wholly by railroad, or partly by railroad and partly by water when both are used under a common control, management or arrangement for the continuous carriage or shipment from one State or territory of the United States or the District of Columbia, to any other State or territory. The act also includes all bridges and ferries, and the term "transportation" includes all instrumentalities of shipment or carriage. The second section provides that whenever a controversy concerning wages, hours of labor or conditions of employment shall arise between a carrier subject to this act and the employes of such carrier, seriously interrupting or threatening to interrupt the business of such carrier, the chairman of the Interstate Commerce Commission and the Commissioner of Labor shall, with all practical expedition, put themselves in communication with the parties to such controversy, and shall use their best efforts by mediation and conciliation to amicably settle the same, and if such efforts shall be successful, shall then endeavor to bring about an arbitration of such controversy in accordance with the provisions of this act. The board of arbitration is to consist of the chairman of the Interstate Commerce Commission and one named by the carrier or employer and the other named by the labor organization to which the employes directly interested belong. The submission of the controversy shall be in writing, and shall be signed by the employer and by the labor organization representing the employes, and shall state, first, that, pending the arbitration, the existing status shall not be changed; second, that the award shall be final on both parties, unless set aside for error of law apparent on the record; third, that the respective parties to the award will faithfully execute the same; fourth, that the employes dissatisfied with the award shall not, by reason of such dissatisfaction, quit the service of the employer before the expiration of three months thereafter the making of such award, nor without giving three months' notice, in writing, of their intention to quit; fifth, that such award shall continue in force as between the parties for the period of two years after the same shall go into practical operation. Section 4 provides that the award, after it is filed in the clerk's office of the Circuit Court of the United States, shall go into practical operation, and judgment shall be entered thereon accordingly, unless within thirty days either party shall file exceptions thereto for a matter of law apparent upon the record. Other provisions in regard to appeals are contained in this section, and the appeal is finally to be decided by the Circuit Court of Appeals. It is provided that during the pendency of arbitration, the employer shall not discharge the employes except for inefficiency, and that a violation of this shall be punishable by a fine not exceeding $1,000, or by imprisonment not exceeding one year. The same punishment is provided for any employe who aids or abets strikes or boycotts against the employer during the arbitration, or during the thirty days after the filing of the award. The eighth section provides that the employes of railroads in the hands of receivers shall have the right to be heard in the federal courts, and section nine provides that an employer shall not require any employe or person seeking employment, to enter into an agreement not to become a member of any labor organization or shall conspire to prevent an employe from obtaining other employment. Section ten provides that whenever a controversy arises which threatens to obstruct the operation of a railroad, the attorneygeneral of the United States may file a bill in equity to prevent the commission or continuance of the public mischiefs caused or threatened as aforesaid, in any circuit court or courts of the United States and that said bill shall pray for the appointment of a receiver pending the continuance of such controversy and that the defendants of such bill shall be the carrier and |