Evening star. [volume], March 11, 1937, Page A-4, Image 4

About Evening star. [volume] (Washington, D.C.) 1854-1972

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Examination of Returns to
Start July 1—Water Levy
Warning Given.
Treasury officials said today reve
nue agents would get around earlier
than usual this year to checking up
on income tax returns.
At the same time they warned that
money paid in water tax Is not deduct
ible from income tax. Thousands of
persons do so, but the Internal Reve
nue Bureau holds that it is no more
deductible than the cost of breakfast.
Thousands of Washingtonians today
filed into the office of the deputy col
lector of internal revenue at Twelfth
street and Constitution avenue to sub
mit their tax statements before the
Monday deadline. The office is open
daily from 9 a m. to 5 p.m. and will
be open Monday until midnight.
Gift Tax Information.
For them all Commissioner Guy T.
Helvering called attention to the law
requiring those who receive gifts of
$5,000 or more from one donor to file
gift tax information returns.
"If the gift was of a future interest
in property, a return must be filed re
gardless of the amount," Helvering
said.
Field examinations of tax returns will
begin July 1 and will take 12 months.
Formerly the examinations were not
started until the next January 1, but
an increase in personnel made possible
the advance.
It will take three and a half months
to audit the 6.000.000 returns expected
by the deadline Monday.
Questionable Returns Investigated.
Questionable returns will be sent to
S 000 field agents, each of whom makes
about 150 investigations a year.
As a result of investigations in the
last fiscal year. $222,099,000 additional
taxes were assessed.
Court
(Continued From First Page t
It will jeopardize the entire liberal |
program.”
' This.” referring to his amendment,
"is a proposal to which no liberal
can take exception and a proposal to
which critics of the President, who
have been saying the matter should
be submitted to the people, likewise
ahould not take exception.”
Asked what his position is toward
the President's court bill, the Senator 1
said:
'My feeling is that as members
of the Judiciary Committee, we all
ought to be noncommittal.
The committee, he added, is sitting 1
as a court and has only just begun
to hear the evidence. Questioned |
further by newspauper men as to
whether his remarks could be regarded j
as indicating he preferred his con
stitutional amendment, O'Mahoney re
plied: "I feel this is a permanent ■
solution.”
He pointed out that 42 State Legis
latures are now in session and urged
that they be given an opportunity to
pass on the proposed amendment. He
also pointed out that 23 States have
Democratic Legislatures. He said
there was reasonable ground to believe
that progressive forces in four other
unclassified States would join the
movement, leaving only nine other
States that would have to be obtained
for ratification.
Broadcasting from Chicago, Sen
ator Wheeler voiced the resent
ment which has manifested itself
among the liberals and Democrats
opposed to the President's court plan.
In his address ran an undercurrent
of bitterness because of the strictures
the President, in his two addresses so
far delivered on the court matter, has
applied to the opponents of his
measure.
President and Crisis.
“The President made the startling
statement," said Wheeler, “that in his
opinion a great national crisis exists—
& crisis even more grave than that
which confronted this country four
years ago. The President implied
that he could not insure the con
tinuance of democratic institutions
for four more years unless he was
given the power to increase imme
diately the membership of the Su
preme Court by adding six new
Justices.
“Crisis, power, haste and hate was
the text from which the President
preached."
Wheeler chided the President for
Inconsistency. He said that during
his campaign for re-election last Fall
the President had told the country
what great strides had been made to
ward recovery, and now recovery had
actually come to the country. There
was none of the talk, now made by
the President, of any crisis, Wheeler
said.
The Montana Senator said:
“Now, when many of these same
liberals, who agree with his aims, dis
agree to his packing of the court be
cause we believe it is fundamentally
unsound,, undemocratic and reaction
ary in principle, the President says
‘the tumult and the shouting have
broken forth anew—and from sub
stantially the same elements of oppo
sition.’
“The same elements of opposition!
Johnson of California, Norris of Ne
braska, Nye and Frazier of North
Dakota, Borah of Idaho and that vast
host of Southern Democrats who have
supported the President whole-heart
edly. We are classed as ‘the same
elements of opposition' as opposed him
in the last campaign.”
wneeier said the people will not
believe these liberals are insincere in
their desire to improve social and
economic conditions in the oountry.
“The people will believe, in my
opinion,” he continued, “that the
President has made a false start and
taken a most dangerous method of
righting the wrongs that may exist.
They will question that the end justi
fies the means.”
Landis replied that the balance be
tween the three branches of Govern
ment had been “subtly and increas
ingly upset” in the last 35 years, and
that the Roosevelt plan was the only
Way to restore that balance.
Declaring the present Supreme
Court has set itself up as a super
legislature standing athwart the path
of social progress, Landis added:
“We dare not repeat the mistake of
Buchanan—to let the Nation, as ne
did, after the Dred Scott decision,
falter and fumble too long for its
destiny. We must, if we can, find a
way to do otherwise.”
The President’s proposal to name
six new justices is the only constitu
tional way to meet the problem short
of a constitutional amendment, he
said. He pointed out that the child
labor amendment has been kept out of
the Constitutiion for years and de
clared another amendment might face
equal delay.
I '
Summary of Jackson's Court Statement
TKE statement of Robert H. Jack
son, Assistant Attorney Gen
eral, delivered today before the
Senate Judiciary Committee,
follows, in part:
I. A responsibility for the proper func
tioning of the Supreme Court haa
been placed by the Constitution upon
Congress.
When a situation exists in the Su
preme Court which the President feels
he cannot continue to ignore, it is to
the Congress that he may properly
bring the problem.
The responsibility upon Congress for
seeing that the American people have
a workable, harmonious and co-opera
tive Judicial system is so usually over
looked by those engaged in building
up the tradition of judicial supremacy
that the burden of constitutional re
sponsibility on Congress deserves ex
amination.
A sentiment has developed that sole
responsibility for the functioning of
of the Supreme Court as an institution
is upon the justices, and that their
independence requires that a majority
of them be let alone to shape the in
stitution as they will. In short, it is
urged that the court belongs exclu
sively to the justices and that the
President and the Congress must keep
hands off.
The fact is that the Supreme Court
cannot function without the periodic
aid of Congress and that Congress, by
its inactivity, may be assuming re
sponsibilities for the Supreme Court's
acts as great as any responsibility
it may assume by exerting its power.
The Constitution leaves with Con
gress and the Executive the whole
i responsibility for the personnel of the
j court. The Senate must share re
i sponsibility for the selection of the
justices and is the sole judge of their
I "good behavior.'’ The court is wlth
! out means to house itself or to obtain
; its clerks, secretaries and marshals
unless the House of Representatives
' takes the responsibility of initiating
appropriations for the purpose. The
House of Representatives is the only
accuser to which the Justices must
answer. Moreover the court is power
less to make its decisions effective
unless Congress or the Executive pro
vides for carrying out its Judgments
and decrees.
Moreover the Jurisdiction of the
court, except as to cases affecting
foreign representatives and states, is
left to Congress to decide.
This power to reduce the Supreme
Court to a mere phantom court was
not an accident. Our forbears knew i
the story of judicial abuse and tyrranv
as well as the story of legislative and 1
executive abuses These checks and
balances were therefore embodied in
the Constitution to enable Congress to
check judicial abuses and usurpations, i
if the same should occur. If there are ;
abuses in the court, with which I will j
deal later, their continuance can only |
be due to default in the exercise of
checks and balances placed in the !
hands of Congress and the Executive.
Congress Power Overlooked.
The power of Congress to exercise
checks against the overreaching of the
court is so generally overlooked or
minimized that the alternatives that
faced the Constitution writers deserve
examination in detail.
1. The Constitution might have
made the ^ipreme Court the sole cus
todian of judicial power. It did not.
The judicial power is vested in the
Supreme Court "and in such inferior
courts as the Congress may fwom time
to time ordain and establish.”
2. The Constitution might have de
termined. or left to the Supreme Court
to fix, its own jurisdiction. It did not.
It has only a limited original jurisdic
tion and except in cases affecting
Ambassadors, Ministers and Consuis
and those in which a State shall be
a party, the Supreme Court has
appellate jurisdiction only "with such
exceptions and under such regulations
as the Congress shall make ”
3. The Constitution might have fixed
the size of the Supreme Court or left
the court to determine its own size,
but the Constitution deliberately left
the number of justices to be fixed,
from time to time, by Congress.
4. The Constitution might have
named the original members of the
court or might have given the court
power to fill its own vacancies. It did
not. The Constitution placed the con
tinuing power of appointment in tne
President and in the Senate.
5. The Constitution left the amount
of compensation of the justices entire
ly to Congress, with no restriction ex
cept in the provision that whatever
compensation Congress may once give
them shall not be diminished during
their continuance in office.
6. The Constitution could have pro
vided some source of revenue for the
court, its justices, marshal, clerk and
appointees. But it leaves it entirely
to appropriations to be initiated in
the House of Representatives.
7. The Constitution could have au
thorized the court Itself to appoint
the personnel necessary to execute
and enforce court decrees. But it
did not. For the enforcement of the
court's decrees, the Congress and the
executive branch of the Government
must be relied upon.
8. The Constitution could have
given the court the power to judge the
conduct of its own members. The
power to judge the qualifications and
to discipline its own members was
given to each house of Congress. But
the Supreme Court was entrusted with
no such power to either accuse or
judge its members. Impeachment
can be only by the House and trial
by the Senate.
Not Snper Government.
When the Congress, as the supreme
legislative and policy-making body of
the United States, was granted such
conclusive powers over Jurisdiction
and enforcement of decrees of the
court, and over appointment and be
havior of its personnel, it is idle to
contend, as many of the advocates of
judicial supremacy do, and it was
ever intended that the Supreme
Court should become a super-govern
ment.
Congress, throughout our history, haa
made sparing use of Its checks and
balances against the court. It made
one abortive attempt to use Impeach
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i.NA. 1348, "The ^mber Number"!
ment as a check. It once withdrew
jurisdiction of the court to hear and
determine a case that had already
been submitted, and its power to do
so was recognized. Three times the
device of constitutional amendment
has been used to correct the court.
Six times we have effected changes in
the size of the court, with resulting
changes in the court's attitudes.
II. Experience With Alterations of
the Sixe of the Court.
Legislation creating or abolishing
vacancies in the court is authorized
by the Constitution and validated by
historical practice as a method of
bringing the elective and non-elective
branches of the Government back into
a proper co-ordination. • • •
Changing the size of the court has
never deprived it of Independence or
prestige. It is Just as constitutional
to add members to keep the court up
with the country as it is to add mem
bers to keep the court up with its
business. The power of the Congress
to avert constitutional stagnation is
as great as its power to prevent con
gested dockets. And whatever other
motives have influenced the changes
that have been made In the composi
tion of the court, the dominant one
has always been to keep the divergence
between the court and the elective
branches from becoming so wide as
to threaten the stability of the Gov
ernment.
There have been six instances.
A reduction of the court from six to
five was effected by what is known
as the "midnight judges” law, rushed
| through Congress by President Adams
just before Jefferson took office. Jus
tice Cushing was not expected to live,
and it was thought by this device to
prevent Mr. Jefferson from appointing
a successor.
Restoration to Six.
The number was restored to six In
1802. and raised to seven in 1807,
which enabled Jefferson to appoint new
justices. Charles Warren has col
lected (Supreme Court in United States
History, Vol. 1, pages 210-212) the
comments of the press on Mr. Jeffer
son's move, which read like this morn
ing's paper. I quote characteristic
comment. One paper said, “By this
vote the Constitution has received a
wound it cannot long survive." An
other stated that a “mortal blow had
been struck at the independence of the
judiciary.” James A. Bayard wrote,
“The independence of the judicial
power is prostrated."
The Jacksonian revolution was sig- i
nalized by the addition of two. new
judges in 1837. There was an in
crease in judicial business, but Con
gress had refused successive demands
of prior Presidents for an increase.
In 1863 the court was enlarged to
10, in part, to assure that Mr. Lin
coln's war policy would not be injured
by judicial attacks. The vacancy was i
filled by the appointment of Justice
Field, who was recognized as "a strong
Union man.” That Lincoln had a
purpose to strengthen his position with
the judiciary may be inferred from 1
his confiding to Congressman Bout- j
well as to the appointment of Chief
Justice Chase that 'We wish for a
Chief Justice who will sustain what
has been done in regard to emancipa
tion and the legal tender.”
The court was reduced in 1866 from
10 to 8 to prevent the vacancies from
being filled by President Johnson with
appointments which it was feared
might be unfavorable to the "recon
struction” policy.
In 1869, under President Grant, the
court was again enlarged to nine.
President Grant took pains to ap
point justices who. honorably but
frankly, favored his policy.
In all the foregoing cases there was
a real danger that the non-responsive,
non-elective branch of the Govern
ment might impose its unsympathetic
predilections on the country to nullify
the policy of the elective branches.
When immediate and effective action
has been necessary, the method which
the President now proposes has been
used throughout our constitutional
history.
III. Experience with amendments to
correct court decisions.
The amendment method to correct
the court has been used three times:
The eleventh amendment was adopted
to correct the court on suits against
the States; the thirteenth, fourteenth
and fifteenth amendments to eradicate
the philosophy of the Dred Scott de
cision and effectuate the policy of re
construction. and the sixteenth to alter
the result produced by the court's rul
ing on income taxes.
I am not urging that amendment
method shall not now be tried. But
I do point out certain problems which
draftsmen and advocates of amend
ment will need to consider.
Experience has shown that it is dif
ficult to amend a constitution to make
it say what it already says. * * *
Our constitutional history abun
dantly demonstrates that it is im
possible to foresee or predict the in
terpretation or effect which may be
given to any language used in an
amendment. The difficulty of enact
ing an amendment to overcome a sin
gle decision of the court, such as the
Dred Scott decision or the Income tax
decision, becomes more difficult when
the problem is not to meet a single
concrete decision but to meet a state
of mind or mental attitude which fer
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vades the whole course of recent Judi
cial decisions. • • •
Judges who resort to a tortured con
struction of the Constitution may tor
ture an amendment. You cannot
amend a state of mind and mental
attitude of hostility to exercise of gov
ernmental power and of indifference
to the demands which democracy at
tempting to survive industrialism
makes upon its government.
IV'. Judicial power over Federal legis
lation is expanding rapidly and as
suming the nature of a veto.
The outstanding development in re
cent constitutional history is the grow
ing frequency with which the Supreme
Court refuses to enforce acts of the
Congress on the ground that such acts
are beyond the constitutional powers
of the Congress.
Whila we see no limits upon the
power to nullify acts of the Congress,
we can see that, as each instance be
comes a precedent for more, self
restraints are proving no restraints,
and the power is in constant process
of extension.
In the 71 years from the adoption
of the Constitution to the War Between
the States the Supreme Court so
nullified only two acts of Congress.
One of these two nullifications was
the Dred Scott case, which precipitated
that war.
In the 72 years from the beginning
of that war down to the close of the
October (1932) term, the Supreme
Court refused to recognize the power
of Congress in approximately 60 cases,
and it is significant that one-third of
these occurred during the decade be
fore the New Deal, when the country
as a whole was supposed to be content
with a period of normalcy. Enu
merated by decades, the number of
laws of the United States nullified by
: the Supreme Court runs as follows:
1790-1800 0
1800-1810 .... 1
1810-1820 .... 0
1820-183* 0
1830-1840 . 0
1840-1850 0
1850-1860 1
1860-1870 4
1870-1880 9
1880-1890 5
1890-19QP 5
1900-19*0 9
1910-1920 . 7
1920-1930 19
But in just the last three years from
the October (1933) term on, the court
has refused to„recognize the power of
Congress in 12 cases. And 5 of these
12 decisions have occurred during a
single year. i.e.. the October (1935>
term. 4 of the 5 by a sharply divided
court.
No more threatening development in
law enforcement has occurred than
the sight of the Government defied by
the whole utility holding company in
dustry, obliged to abdicate enforce
ment until a Supreme Court decision
should be had. If this attitude shall
spread, then a subtle change has come
about that transforms completely the
function of the Supreme Court in our
Government.
That the conflict between the couit
and the elective branches of the Gov
ernment is entering a new phase is
apparent from the extensive assertion
of the right to disregard acts of Con
gress which is subtly transferring the
process of judicial review into a veto
power over legislation.
I am confident that the Supreme
Court has no wish to take unto itself
a veto power.
V. The Federal Judrial Power Is
Also Impairing States’ Rights.
It is often assumed that the powers
which the court denies to the Fed
eral Government, fall to the State
governments and that the Supreme
Court is therefore a protector of the
States.
Few decisions of the Supreme Court
can be cited in which any State of
the union has been able to obtain any
protection of its own constitutional
rights, upon its own demand from
that court. Instead. States have met
with little success attempting to as
sert their own rights before the
court.
In the Carter Coal case seven States
appeared and joined with the Federal
Government in support of the Guffey
coal act—no State appeared against it.
Nevertheless, the court struck down the
Guffey law on the plea by the owners
of the Carter Coal Co. that the law
invaded States' rights.
It was not Congress, nor the Exec
utlve, blit It was the Supreme Court
which denied the rights of any of the
States of the Union to make any law
whatever dealing with minimum wages,
and it was in that case that the chief
justice said:
"And I can find nothing In the Fed
eral Constitution which denies to the
State the power to protect women
from being exploited by overreaching
employers through the refusal of a
fair wage as defined in the New York
statute and ascertained in a reason
able manner by competent authority."
(Morehead vs. Tipaldo, 298 U. S. 587).
He said further:
"We have not yet arrived at a time
when we are at liberty to override
the judgment of a State to decide that
women are not the special subject of
exploitation because they are women
and, as such, are not in a relative de
fenseless position."
The majority, however, not only
overrode the State but overrode the
chief Justice of the court and three
of its ablest members.
The tenth amendment, as to power
reserved to the States, has not been
used to assure the power of the States.
It has been used to cut down the power
of the Federal Government. Then,
when those same powers are asserted
by the States, the "due process clause"
is used to cut down the State power.
The States have no rights which the
courts have been bound to respect.
VI. The court is now Impaired in its
functioning and prestige by a serious
division. Only the addition of new
members can restore it to its proper
functioning.
The present controversy over the
court reflects a controversy within the
court. Neither the Congress nor the
President has sought the present dis
sension. Neither the Congress nor the
Executive has in any manner sought
to Interfere with the judicial function,
and neither has failed to obey any de
cision of the court.
A majority of the justices have made
it apparent that the great objectives
of thus administration and this Con
gress offend their deep convictions and
that the methods of this day violate
their conceptions of good Govern
ment. Prediction of ‘ impending moral
chaos.” grief over the fear that "the
Constitution is gone,” characteriza
tion of the Securities and Exchange
Commission as a “star chamber,” ac
cusation that the Congress and the
Executive have coerced farmers, taken
freedom of contract away from work
ing women and despoiled the States,
indicate an implacable, although un
questionably sincere, opposition to the
use of national power to accomplish
the policies so overwhelmingly in
dorsed by the voters.
Thus frank hostility of these jus
tices has been openly counted on by
interested groups to defeat much im
jjortant legislation
On the other hand, a minority of
the justices, whose patriotism and
competence no one questions, have
made it apparent that they feel that
justice to their own records with
posterity requires them to protest pub
licly and sharply against the over
riding decisions of the majority. In
cluded among those who have seen fit
to protect their place in judicial his
tory by recorded protests are Chief
Justice Hughes. Justice Holmes,
Brandels. Stone and Cardozo.
The following table shows the per
sistence and dramatic split among tile
justices:
Federal Statutes.
Hot oil iSec 9c, N.I. R. A )..void 8-1
Gold clauses_valid 5-4
Rairoad pensions __void 5-4
Farm mortgages_void 9-0
N. R. A.---void 9-0
A A. A. -void 6-3
T. V. A. -valid 8-1
Gulley act . void 6-3
Municipal bankruptcy _void 5-4
Silver tax _valid 9-0
Second gold clause case_valid 5-4
State Statutes.
Mortgage moratorium_valid 5-4
Milk price act __ valid 5-4
Minimum wage_void 5-4
Washington utility regulation
fund case _void 5-4
New York unemployment
compensation_no decision 4-4
Only 10 days after the court had
tossed aside the New York minimum
wage act on the ground that the State
was "without power by any form ol
legislation" to establish minimum
wages for women, the Republican
party pledged itself to support such
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EUGENE C. GOTT, President
legislation and avowed its belief that
such legislation could be enacted
"within the Constitution as it now
stands.” This was exactly what the
court said could not be done.
Serious Lag Evident.
It thus becomes evident that there
is a serious lag betweerf public opinion
and the decisions of the court. A ma
jority of the justices have too fre
quently failed to recognize, as Justice
Holmes so aptly stated, "what seemed
to them to be first principles are be
lieved by half of their fellowmen to
be wrong.”
It is true that the precedents of
tne pest hang like a shroud about the
court. But the degree of devotion to
precedent in lieu of reason is in that
court's discretion, even by its own
precedents. A minority of the court
has expressed a will to freedom.
Justice Brandeis has said, "The rule
of stare decisis, though one tending to '
consistency and uniformity of de
cision, is not decisive.
Conflict between Congress and the
courts is in large part due to the
refusal of the courts to permit Con
gress to have any share in defining
the present-day application of such
Indefinite terms as "general welfare,”
“due process,” "commerce among the
several States” and the things which
.directly afreet it. The court majoiity
insists on a rigid, permanent and
legalistic definition. All that is needed
is the same attitude of mind on eco
nomic questions that the court had
on the liquor question. When it came
to defining "intoxicating liquor” as
used in the eighteenth amendment the
court was ready to leave it to Con
gress. There is no reason why similar
deference should not be paid to con
gressional definitions of other consti
tutional terms.
If this split were decisively resolved
by the addition of new members, the
court could proceed to mark out a
less ambitious course for itself and
bring about greater harmony within
the Government.
The Supreme Court’s power over
legislation is not defined or bounded
or even mentioned in the Constitution,
but was left to lurk in inference. As
Mr. Justice Stone has well said, "The
only check upon our own exercise of
power is our own sense of self-re
straint."
I have attempted to review dispas
sionately some of the failures of judi
cial self-restraint by which the Constu
tution “as the Judges say it is" has
departed from the Constitution which
Woodrew Wilson said "is not a mere
lawyer’s document; it is a vehicle of
life, and its spirit is always the spirit
of the age.”
-- ■ .
GASQUE DEVELOPS COLD
Representative May Remain Two
Weeks in Hospital.
A severe cold added iO the discom
fort today of Representative Gasque '
of South Carolina, recovering from
a heart attack in Walter Reed Hos
pital.
Aides said it probably would be two
weeks before Gasque could return to
his duties at the Capitol. „
Security Bill Passes.
COLUMBIA, S. C, March 11 (4>> —
The Senate passed on second reading
last night a bill to set up a $2,000,000
social security program in South Caro-'
lina.
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$625 Empire Group, Amazon Mahogany _$465
$265 Colonial Chippendale Group, Honduras Mahogany-$210
$450 American Chippendale, Honduras and Cuban Mahogany-$360
$645 Colonial Hepplewnite Group, Cuban and Honduras Mahogany, $496
$245 Honduras Mahogany Group. (No Bureau)-$195
Separate Maple Pieces
$40 Solid Mople High Chest_$32
$30 Semi-Poster Solid Maple Bed_$24
$16 Solid Maple Dressing Table_$12.75
$35 Solid Maple Bureau_$27*50
$30 Solid Maple Poster Bed_$24
$9.50 Solid Maple Bedside Table_$7*50
For the Living Room
$40 Queen Anne Open Arm Chair-$32*50
$131.50 Early American Sofa-$98
$80 Parker Love Seat_$62*50
$65 Colan Easy Chair-$54
$110 Bradley Love Seat-$79
$200 Kennedy Sofa--—$169
$175 Tuscan Sofa-$129
$92.50 English Easy Chair-$69
$178 Lawson Sofa-$139
$65 Georgian Gallery Table-$49
$84 Louis XVI Table Desk-$59
$315 18th Century Breakfront Bookcase-$225
$98 Console Table, with lyre base-$79
$50 Hepplewhite Card Table-$29*50
Charge Accounts—C ourtesy Parking, Capital Garage