Bromley v. McCaughn

• Decision Date: 23 May 1928
• Docket Number: No. 12570.,12570.
• Citation: 26 F.2d 380
• Parties: BROMLEY v. McCAUGHN, Collector.
• Court: U.S. District Court — Western District of Pennsylvania

26 F.2d 380 (1928)

BROMLEY v. McCAUGHN, Collector.

No. 12570.

District Court, E. D. Pennsylvania.

May 23, 1928.

Brown & Williams, of Philadelphia, Pa., for plaintiff.

George W. Coles, U. S. Atty., of Philadelphia, Pa., for defendant.

DICKINSON, District Judge.

The question of law raised by the affidavit of defense filed is the constitutionality of sections 319 to 324, both inclusive, of the Revenue Act of 1924 (26 USCA §§ 1131-1136; Comp. St. §§ 6336 4/5s-6336 4/5x), as amended by section 324 (44 Stat. 86) and section 325 (26 USCA § 1121) of the Act of 1926. The cause is presented in the nature of a case stated; it being stipulated that, if the proper legal judgment finds the act to be of legal effect, judgment should be entered for the defendant; otherwise for the plaintiff.

The grounds of averred unconstitutionality are (1) the tax imposed by the act is a graduated tax measured by the value of what has passed, and is thus based upon "an arbitrary and unreasonable classification"; and (2) it is a direct tax imposed without reference to, and is not apportioned according to, the census of population, and hence is avoided by article 1, § 9, cl. 4, of the Constitution of the United States.

This invites a general observation. A tax which calls for the payment by one taxpayer of a heavier exaction than another, merely because the first is assumed to be financially able to bear exaction with less distress than the other, may be said to offend against the principle of uniformity and of equality before the law, and in the English sense of the word to be unconstitutional. If the classification of taxpayers is based upon the values of the respective possessions of each, so that he who has ten times the value of what the other has is called upon to pay a tax ten times as great, doubtless no one would charge it to be lacking in uniformity. That a minimum valuation should be fixed below which no exaction is imposed is made reasonable by the fact that the cost of collection would exceed the tax return. When, however, the first is made to pay ratably, not ten times, but fifty times, the sum exacted of the other, then it can be understood why the exaction is denounced as "unjust and unreasonable." Such a judgment, if entertained, is, however, based upon what is thought or assumed to be a standard of what is justice and reason. Generally speaking, such standards differ and differ widely, and, before a judgment can be reached, a standard must be selected and adopted. This suggests the oft-cited distinction and difference between the American idea of the unconstitutionality of statutes and that which prevails in countries which have no written constitutions. The practical difference resides in who is the judge of such unconstitutionality. With us it is the tribunal in which is vested the supreme judicial power; in other countries, which do not have this as a feature of their governmental systems, it resides in the supreme legislative body. The judicial power with us, however, is limited to instances in which the standard is supplied by the Constitution. In all other cases the legislative and not the judicial power determines what is constitutional in the broad meaning of that word.

A very trite and commonplace illustration of the distinction meant to be made is afforded by retroactive statutes and ex post facto laws and bills of attainder. All may alike offend against what may be said to be the common judgment of what is just and reasonable. The judicial power in the one case limits itself to a finding of the meaning of the statute, and will not give it a retroactive effect unless it is clear it is so meant to be; in the other any court would feel itself to be compelled to avoid an ex post facto law or bill of attainder. The reason for the difference is so clear as not to call for its statement. A warrant for the judgment of annulment must be found in the Constitution. This tax was admittedly not laid "in proportion to the census or enumeration" of population, and hence, if it be "a capitation or other direct tax," it clearly is...