The relation of its members to the principle involved cannot
relieve this Court of the duty to determine the taxability of the
salary of a judge of another federal court in a case duly
presenting the question. P. 253 U. S.
The primary purpose of the Constitution in providing (Art. I, §
1, cl. 6) that the compensation of the judges "shall not be
diminished during their continuance in office" was not to benefit
the judges, but to attract fit men to the bench and insure that
independence of action and judgment which is essential to the
maintenance of the Constitution and the impartial administration of
justice. Pp. 253 U. S. 248
253 U. S.
Such being its purpose, the limitation is to be construed not as
a private grant, but as a limitation imposed in the public interest
-- not restrictively, but in accord with its spirit and the
principle on which it proceeds. P. 253 U. S.
Any diminution which by necessary operation and effect withholds
or takes from the judge a part of that which has been promised by
law for his services must be regarded as within the limitation. P.
253 U. S.
The prohibition embraces and prevents diminution by taxation,
and has been so construed in the actual practice of the government.
P. 253 U. S.
The purpose of the Sixteenth Amendment, as shown by its language
and history and by recent decisions of this Court, was not to
extend the taxing power to new or excepted subjects, but merely to
remove all occasion otherwise existing for an apportionment among
the states of taxes laid on income, whether derived from one source
or another. P. 253 U. S.
A tax upon the net income of a United States district judge,
assessed under the Act of February 4, 1919, c. 18, 40 Stat. 1062, §
213 (passed since he took office), by including his official salary
in the computation operates to diminish his compensation in
Page 253 U. S. 246
of the Constitution, and is invalid. P. 253 U. S. 263
Peck & Co. v. Lowe, 247 U. S. 16
United States Glue Co. v. Oak Creek, id., 247 U. S. 321
262 F. 550 reversed,
The case is stated in the opinion.
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
This is an action to recover money paid under protest as a tax
alleged to be forbidden by the Constitution.
The plaintiff is the United States District Judge for the
Western District of Kentucky, and holds that office under an
appointment by the President made in 1899 with the advice and
consent of the Senate. The tax which he calls in question was
levied under the act of February 24, 1919, c. 18, 40 Stat. 1062, on
his net income for the year 1918, as computed under that act. His
compensation or salary as district judge was included in the
computation. Had it been excluded, he would not have called on to
pay any income tax for that year. The inclusion was in obedience to
a provision in § 213 requiring the computation to embrace all
gains, profits, income and the like,
"including in the case of the President of the United States,
the judges of the Supreme and inferior courts of the United States
[and others] . . . the compensation received as such."
Whether he could be subjected to such a tax in
Page 253 U. S. 247
respect of his salary consistently with the Constitution is the
matter in issue. If it be resolved against the tax, he will be
entitled to recover what he paid; otherwise his action must fail.
It did fail in the district court. 262 F. 550.
The Constitution establishes three great coordinate departments
of the national government -- the legislative, the executive, and
the judicial -- and distributes among them the powers confided to
that government by the people. Each department is dealt with in a
separate article, the legislative in the first, the executive in
the second, and the judicial in the third. Our present concern is
chiefly with the third article. It defines the judicial power,
vests it in one Supreme Court and such inferior courts as Congress
may from time to time ordain and establish, and declares:
"The judges, both of the Supreme and inferior courts, shall hold
their offices during good behavior and shall at stated times
receive for their services a compensation which shall not be
diminished during their continuance in office."
The plaintiff insists that the provision in § 213 which subjects
him to a tax in respect of his compensation as a judge, by its
necessary operation and effect, diminishes that compensation, and
therefore is repugnant to the constitutional limitation just
Stated in its broadest aspect, the contention involves the power
to tax the compensation of federal judges in general, and also the
salary of the President, as to which the Constitution (Art. II, §
1, cl. 6) contains a similar limitation. Because of the individual
relation of the members of this Court to the question, thus broadly
stated, we cannot but regret that its solution falls to us, and
this although each member has been paying the tax in respect of his
salary voluntarily and in regular course. But jurisdiction of the
present case cannot be declined or renounced. The plaintiff was
entitled by law to invoke our
Page 253 U. S. 248
decision on the question as respects his own compensation, in
which no other judge can have any direct personal interest, and
there was no other appellate tribunal to which under the law he
could go. He brought the case here in due course, the government
joined him in asking an early determination of the question
involved, and both have been heard at the bar and through printed
briefs. In this situation, the only course open to us is to
consider and decide the cause -- a conclusion supported by
precedents reaching back many years. Moreover, it appears that,
when this taxing provision was adopted, Congress regarded it as of
uncertain constitutionality, and both contemplated and intended
that the question should be settled by us in a case like this.
With what purpose does the Constitution provide that the
compensation of the judges "shall not be diminished during their
continuance in office?" Is it primarily to benefit the judges, or
rather to promote the public weal by giving them that independence
which makes for an impartial and courageous discharge of the
judicial function? Does the provision merely forbid direct
Page 253 U. S. 249
as expressly reducing the compensation from a greater to a less
sum per year, and thereby leave the way open for indirect, yet
effective, diminution, such as withholding or calling back a part
as a tax on the whole? Or does it mean that the judge shall have a
sure and continuing right to the compensation, whereon he
confidently may rely for his support during his continuance in
office, so that he need have no apprehension lest his situation in
this regard may be changed to his disadvantage?
The Constitution was framed on the fundamental theory that a
larger measure of liberty and justice would be assured by vesting
the three great powers -- the legislative, the executive, and the
judicial -- in separate departments, each relatively independent of
the others, and it was recognized that, without this independence
-- if it was not made both real and enduring -- the separation
would fail of its purpose. All agreed that restraints and checks
must be imposed to secure the requisite measure of independence,
for otherwise the legislative department, inherently the strongest,
might encroach on or even come to dominate the others, and the
judicial, naturally the weakest, might be dwarfed or swayed by the
other two, especially by the legislative.
The particular need for making the judiciary independent was
elaborately pointed out by Alexander Hamilton in the Federalist,
No. 78, from which we excerpt the following:
"The executive not only dispenses the honors, but holds the
sword of the community. The legislature not only commands the
purse, but prescribes the rules by which the duties and rights of
every citizen are to be regulated. The judiciary, on the contrary,
has no influence over either the sword or the purse, no direction
either of the strength or of the wealth of the society, and can
take no active resolution whatever. It may truly be said to have
neither force nor will, but merely judgment. . . . This simple view
Page 253 U. S. 250
the matter suggests several important consequences. It proves
incontestably that the judiciary is beyond comparison the weakest
of the three departments of power; that it can never attack with
success either of the other two, and that all possible care is
requisite to enable it to defend itself against their attacks."
"The complete independence of the courts of justice is
peculiarly essential in a limited Constitution. By a limited
Constitution, I understand one which contains certain specified
exceptions to the legislative authority, such, for instance, as
that it shall pass no bills of attainder, no ex post facto
laws, and the like. Limitations of this kind can be preserved in
practice no other way than through the medium of courts of justice,
whose duty it must be to declare all acts contrary to the manifest
tenor of the Constitution void. Without this, all the reservations
of particular rights or privileges would amount to nothing."
At a later period, John Marshall, whose rich experience as
lawyer, legislator, and Chief Justice enabled him to speak as no
one else could, tersely said (Debates Va. Conv. 1829-1831, pp. 616,
"Advert, sir, to the duties of a judge. He has to pass between
the government and the man whom that government is prosecuting;
between the most powerful individual in the community and the
poorest and most unpopular. It is of the last importance that, in
the exercise of these duties, he should observe the utmost
fairness. Need I press the necessity of this? Does not every man
feel that his own personal security and the security of his
property depends on that fairness? The judicial department comes
home in its effects to every man's fireside: it passes on his
property, his reputation, his life, his all. Is it not to the last
degree important that he should be rendered perfectly and
completely independent, with nothing to influence or control him
but God and his conscience? . . . I have always thought, from my
earliest youth till now, that the
Page 253 U. S. 251
greatest scourge an angry Heaven ever inflicted upon an
ungrateful and a sinning people was an ignorant, a corrupt, or a
More recently, the need for this independence was illustrated by
Mr. Wilson, now the President, in the following admirable
"It is also necessary that there should be a judiciary endowed
with substantial and independent powers and secure against all
corrupting or perverting influences; secure, also, against the
arbitrary authority of the administrative heads of the
"Indeed, there is a sense in which it may be said that the whole
efficacy and reality of constitutional government resides in its
courts. Our definition of liberty is that it is the best
practicable adjustment between the powers of the government and the
privileges of the individual."
"Our courts are the balance wheel of our whole constitutional
system, and ours is the only constitutional system so balanced and
controlled. Other constitutional systems lack complete poise and
certainty of operation because they lack the support and
interpretation of authoritative, undisputable courts of law. It is
clear beyond all need of exposition that, for the definite
maintenance of constitutional understandings, it is indispensable
alike for the preservation of the liberty of the individual and for
the preservation of the integrity of the powers of the government,
that there should be some nonpolitical forum in which those
understandings can be impartially debated and determined. That
forum our courts supply. There, the individual may assert his
rights; there the government must accept definition of its
authority. There, the individual may challenge the legality of
governmental action and have it adjudged by the test of fundamental
principles, and that test the government must abide; there the
government can check the too aggressive self-assertion of the
individual and establish its power upon lines which all
Page 253 U. S. 252
can comprehend and heed. The constitutional powers of the courts
constitute the ultimate safeguard alike of individual privilege and
of governmental prerogative. It is in this sense that our judiciary
is the balance wheel of our entire system; it is meant to maintain
that nice adjustment between individual rights and governmental
powers which constitutes political liberty."
Constitutional government in the United States, pp. 17, 142.
Conscious of the nature and scope of the power being vested in
the national courts, recognizing that they would be charged with
responsibilities more delicate and important than any ever before
confided to judicial tribunals, and appreciating that they were to
be, in the words of George Washington, [Footnote 2
] "the keystone of our political fabric," the
convention, with unusual accord, incorporated in the Constitution
the provision that the judges
"shall hold their offices during good behavior and shall at
stated times receive for their services a compensation which shall
not be diminished during their continuance in office."
Can there be any doubt that the two things thus coupled in place
-- the clause in respect of tenure during good behavior and that in
respect of an undiminishable compensation -- were equally coupled
in purpose? And is it not plain that their purpose was to invest
the judges with an independence in keeping with the delicacy an
importance of their task and with the imperative need for its
impartial and fearless performance? Mr. Hamilton said in
explanation and support of the provision (Federalist, No. 79):
"Next to permanency in office, nothing can contribute more to
the independence of the judges than a fixed provision for their
support. . . . In the general course of human nature, a power
over a man's subsistence amounts to a power over his will.
. The enlightened friends of good government in every state have
seen cause to lament the want of precise and explicit precautions
Page 253 U. S. 253
the state constitutions on this head. Some of these, indeed,
have declared that permanent salaries should be established for the
judges; but the experiment has in some instances shown that such
expressions are not sufficiently definite to preclude legislative
evasions. Something still more positive and unequivocal has been
evinced to be requisite. . . . This provision for the support of
the judges bears every mark of prudence and efficacy, and it may be
safely affirmed that, together with the permanent tenure of their
offices, it affords a better prospect of their independence than is
discoverable in the Constitutions of any of the states in regard to
their own judges."
The several commentators on the Constitution have adopted and
reiterated this view, [Footnote
] Judge Story adding:
"Without this provision [as to an undiminishable compensation],
the other, as to the tenure of office, would have been utterly
nugatory, and indeed a mere mockery,"
and Chancellor Kent observing:
"It tends also to secure a succession of learned men on the
bench who, in consequence of a certain undiminished support, are
enabled and induced to quit the lucrative pursuits of private
business for the duties of that important station."
These considerations make it very plain, as we think, that the
primary purpose of the prohibition against diminution was not to
benefit the judges, but, like the clause in respect of tenure, to
attract good and competent men to the bench and to promote that
independence of action and judgment which is essential to the
maintenance of the guaranties, limitations, and pervading
principles of the Constitution, and to the administration of
justice without respect to persons and with equal concern for the
poor and the rich. Such being its purpose, it is to be construed
not as a private grant, but as a limitation imposed in the public
interest -- in other words, not restrictively, but in
Page 253 U. S. 254
accord with its spirit and the principle on which it
Obviously, diminution may be effected in more ways than one.
Some may be direct, and others indirect or even evasive, as Mr.
Hamilton suggested. But all which by their necessary operation and
effect withhold or take from the judge a part of that which has
been promised by law for his services must be regarded as within
the prohibition. Nothing short of this will give full effect to its
spirit and principle. Here, the plaintiff was paid the full
compensation, but was subjected to an involuntary obligation to pay
back a part, and the obligation was promptly enforced. Of what
avail to him was the part which was paid with one hand, and then
taken back with the other? Was he not placed in practically the
same situation as if it had been withheld in the first instance?
Only by subordinating substance to mere form could it be held that
his compensation was not diminished. Of course, the conclusion that
it was diminished is the natural one. This is illustrated in
Dobbins v. Commissioners of
16 Pet. 435, 41 U. S. 450
which involved a tax charged under a law of Pennsylvania against a
revenue officer of the United States who was a citizen and resident
of that state. The tax was adjusted or proportioned to his
compensation, and the state court sustained it. Erie County
Comm'rs v. Dobbins,
7 Watts 513. In reversing that decision,
this Court, after showing that the compensation had been fixed by a
law of Congress, said:
"Does not a tax, then, by a state upon the office, diminishing
the recompense, conflict with the law of the United States which
secures it to the officer in its entireness? It certainly has such
an effect, and any law of a state imposing such a tax cannot be
But it is urged that what the plaintiff was made to pay back was
an income tax, and that a like tax was exacted of others engaged in
If the tax in respect of his compensation be prohibited,
Page 253 U. S. 255
it can find no justification in the taxation of other income as
to which there is no prohibition, for, of course, doing what the
Constitution permits gives no license to do what it prohibits.
The prohibition is general, contains no excepting words, and
appears to be directed against all diminution, whether for one
purpose or another, and the reasons for its adoption, as publicly
assigned at the time and commonly accepted ever since, make with
impelling force for the conclusion that the fathers of the
Constitution intended to prohibit diminution by taxation as well as
otherwise -- that they regarded the independence of the judges as
of far greater importance than any revenue that could come from
taxing their salaries.
True, the taxing power is comprehensive, and acknowledges few
exceptions. But that there are exceptions, besides the one we here
recognize and sustain, is well settled. In Collector
11 Wall. 113, it was held that Congress
could not impose an income tax in respect of the salary of a judge
of a state court; in Pollock v. Farmers' Loan & Trust
Co., 157 U. S. 429
157 U. S. 585
157 U. S. 601
157 U. S.
-653, it was held, the full court agreeing on this
point, that Congress was without power to impose such a tax in
respect of interest received from bonds issued by a state or any of
its counties or municipalities, and in United
States v. Railroad Co.,
17 Wall. 322, there was a
like holding as to municipal revenues derived by the City of
Baltimore from its ownership of stock in a railroad company. None
of those decisions was put on any express prohibition in the
Constitution, for there is none, but all recognize and gave effect
to a prohibition implied from the independence of the states within
their own spheres.
When we consider, as was done in those cases, what is
comprehended in the congressional power to tax where its exertion
is not directly or impliedly interdicted, it becomes additionally
manifest that the prohibition now
Page 253 U. S. 256
under discussion was intended to embrace and prevent diminution
through the exertion of that power, for, as this Court repeatedly
has held, the power to tax carries with it "the power to embarrass
and destroy," may be applied to every object within its range "in
such measure as Congress may determine," enables that body "to
select one calling and omit another, to tax one class of property
and to forbear to tax another," and may be applied in different
ways to different objects so long as there is "geographical
uniformity" in the duties, imposts and excises imposed.
4 Wheat. 316, 17 U. S. 431
Pacific Insurance Co. v.
7 Wall. 433, 74 U. S. 443
Austin v. The
7 Wall. 694, 74 U. S. 699
Veazie Bank v.
8 Wall. 533, 75 U. S. 541
75 U. S. 548
Knowlton v. Moore, 178 U. S. 41
178 U. S. 92
178 U. S. 106
Treat v. White, 181 U. S. 264
181 U. S.
-269; McCray v. United States, 195 U. S.
, 195 U. S. 61
Flint v. Stone Tracy Co., 220 U.
, 220 U. S. 158
Billings v. United States, 232 U.
, 232 U. S. 282
Brushaber v. Union Pacific R. Co., 240 U. S.
, 240 U. S. 24
Is it not therefore morally certain that the discerning statesmen
who framed the Constitution and were so sedulously bent on securing
the independence of the judiciary intended to protect the
compensation of the judges from assault and diminution in the name
or form of a tax? Could not the purpose of the prohibition be
wholly thwarted if this avenue of attack were left open? Certainly
there is nothing in the words of the prohibition indicating that it
is directed against one legislative power and not another, and, in
our opinion, due regard for its spirit and principle requires that
it be taken as directed against them all.
This view finds support in rulings in Pennsylvania, Louisiana,
and North Carolina, made under like constitutional restrictions,
Commonwealth ex rel. v. Mann,
5 Watts & S. 403, 415
v. Lea, 14
Page 253 U. S. 257
La.Ann.197; 48 N.C. Appendix; N.C. Public Documents 1899, Doc.
No. 8, p. 95; In re Taxation of Salaries of Judges,
N.C. 692; Purnell v. Page,
133 N.C. 125, and has strong
sanction in the actual practice of the government, to which we now
No attempt was made to tax the compensation of federal judges
prior to 1862. A statute of that year, c. 119, § 86, 12 Stat. 472,
with its amendments, subjected the salaries of all civil officers
of the United States to an income tax of three percent, and was
construed by the revenue officers as including the compensation of
the President and the judges. Chief Justice Taney, the head of the
judiciary, wrote to the Secretary of the Treasury a letter of
protest (157 U.S. 701) based on the prohibition we are considering,
and, in the course of the letter, said:
"The act in question, as you interpret it, diminishes the
compensation of every judge three percent, and if it can be
diminished to that extent by the name of a tax, it may in the same
way be reduced from time to time at the pleasure of the
"The judiciary is one of the three great departments of the
government, created and established by the Constitution. Its duties
and powers are specifically set forth, and are of a character that
requires it to be perfectly independent of the two other
departments, and, in order to place it beyond the reach and above
even the suspicion of any such influence, the power to reduce their
compensation is expressly withheld from Congress, and excepted from
their powers of legislation."
"Language could not be more plain than that used in
Page 253 U. S. 258
the Constitution. It is, moreover, one of its most important and
essential provisions. For the articles which limit the powers of
the legislative and executive branches of the government, and those
which provide safeguards for the protection of the citizen in his
person and property, would be of little value without a judiciary
to uphold and maintain them which was free from every influence,
direct or indirect, that might by possibility in times of political
excitement warp their judgments."
"Upon these grounds, I regard an act of Congress retaining in
the Treasury a portion of the compensation of the judges as
unconstitutional, and void."
The collection of the tax proceeded, and, at the suggestion of
the Chief Justice, this Court ordered his protest spread on its
records. In 1869, the Secretary of the Treasury referred the
question to the Attorney General (Judge Hoar), and that officer
rendered an opinion in substantial accord with Chief Justice
Taney's protest, and also advised that the tax on the President's
compensation was likewise invalid. 13 Ops.A.G. 161. The tax on the
compensation of the President and the judges was then discontinued,
and the amounts theretofore collected were all refunded -- a part
through administrative channels and a part through the action of
the Court of Claims and ensuing appropriations by Congress.
Wayne v. United States,
26 Ct.Cls. 274; c. 311, 27 Stat.
306. Thus, the Secretary of the Treasury, the accounting officers,
the Court of Claims, and Congress accepted and gave effect to the
view expressed by the Attorney General. In the Income Tax Act of
1894, c. 349, § 27 et seq.,
28 Stat. 509, nothing was said
about the compensation of the judges, but Mr. Justice Field
regarded it as included, and gave that as one reason for joining in
the decision holding the act unconstitutional. 157 U.S.
157 U. S.
-606. On the rehearing, the Attorney General (Mr.
Olney) frankly said in his brief: "There has never been a doubt
since the opinion of Attorney General Hoar
Page 253 U. S. 259
that the salaries of the President and judges were exempt." The
income tax acts of 1913, 1916, and 1917 (c. 16, 38 Stat. 168; c.
463, 39 Stat. 758, § 4, c. 63, 40 Stat. 329) severally excepted the
compensation of the judges then in office -- also that of the
President for the then current term. In short, during a period of
more than 120 years, there was but a single real attempt to tax the
judges in respect of their compensation, and that attempt soon was
disapproved and pronounced untenable by the concurring action of
judicial, executive, and legislative officers. And so it is
apparent that, in the actual practice of the government, the
prohibition has been construed as embracing and preventing
diminution by taxation.
Does the Sixteenth Amendment authorize and support this tax and
the attendant diminution -- that is to say, does it bring within
the taxing powers subjects theretofore excepted? The court below
answered in the negative, and counsel for the government say: "It
is not, in view of recent decisions, contended that this amendment
rendered anything taxable as income that was not so taxable
before." We might rest the matter here, but it seems better that
our view and the reasons therefor be stated in this opinion, even
if there be some repetition of what recently has been said in other
Preliminarily we observe that, unless there be some real
conflict between the Sixteenth Amendment and the prohibition, in
Article III, § 1, making the compensation of the judges
undiminishable, effect must be given to the latter as well as to
the former, and also that a purpose to depart from or imperil a
constitutional principle so widely esteemed and so vital to our
system of government as the independence of the judiciary is not
lightly to be assumed.
In Knowlton v. Moore, supra,
p. 178 U. S. 95
this Court said:
"The necessities which gave birth to the Constitution, the
controversies which preceded its formation, and the
Page 253 U. S. 260
conflicts of opinion which were settled by its adoption may
properly be taken into view for the purpose of tracing to its
source any particular provision of the Constitution, in order
thereby to be enabled to correctly interpret its meaning."
This sound rule is as applicable to the amendments as to the
provisions of the original Constitution.
Let us turn then to the circumstances in which this amendment
was proposed and ratified, and to the controversy it was intended
to settle. By the Constitution, all direct taxes were required to
be apportioned among the several states according to their
population, as ascertained by a census or enumeration (Art. I, § 2,
cl. 3, and § 9, cl. 4), but no such requirement was imposed as to
other taxes. And, apart from capitation taxes, with which we now
are not concerned, no rule was given for determining what taxes
were direct, and therefore to be apportioned, or what were
indirect, and not within that requirement. Controversy ensued, and
ultimately centered around the right classification of income from
taxable real estate and from investments in taxable personal
property. The matter then came before this Court in Pollock v.
Farmers' Loan & Trust Co., 157 U.
; 158 U. S. 158
601, and the decision, when announced, disclosed that the same
differences in opinion existing elsewhere were shared by the
members of the Court, five, the controlling number, regarding a tax
on such income as in effect a direct tax on the property from which
it arose, and therefore as requiring apportionment, and four
regarding it as indirect, and not to be apportioned. Much of the
law then under consideration had been framed according to the
latter view, and, because of this and the adjudged inseparability
of other portions, the entire law was held invalid. Afterwards, to
enable Congress to reach all taxable income more conveniently and
effectively than would be possible as to much of it if an
apportionment among the states were essential, the Sixteenth
Page 253 U. S. 261
Amendment was proposed and ratified. In other words, the purpose
of the amendment was to eliminate all occasion for such an
apportionment because of the source from which the income came -- a
change in no wise affecting the power to tax, but only the mode of
exercising it. The message of the President [Footnote 5
] recommending the adoption by Congress
of a joint resolution proposing the amendment, the debates
] on the resolution
by which it was proposed, and the public appeals [Footnote 7
] -- corresponding to those in the
Federalist -- made to secure its ratification leave no doubt on
this point. And that the proponents of the amendment in drafting it
lucidly and aptly expressed this as its object is shown by its
"The Congress shall have power to lay and collect taxes on
incomes, from whatever source derived, without apportionment among
the several states, and without regard to any census or
True, Governor Hughes of New York, in a message laying the
amendment before the legislature of that state for ratification or
rejection, expressed some apprehension lest it might be construed
as extending the taxing power to income not taxable before, but his
message promptly brought forth from statesmen who participated in
proposing the amendment such convincing expositions of its purpose,
] as here stated,
that the apprehension was effectively dispelled, and ratification
Thus, the genesis and words of the amendment unite in showing
that it does not extend the taxing power to new or excepted
subjects, but merely removes all occasion otherwise existing for an
apportionment among the states of taxes laid on income, whether
derived from one
Page 253 U. S. 262
source or another. [Footnote
] And we have so held in other cases.
In Brushaber v. Union Pacific R. Co., 240 U. S.
, 240 U. S. 17
where the purpose and effect of the amendment were first drawn in
question, the Chief Justice reviewed at length the legislative and
judicial action which prompted its adoption, and then, referring to
its text and speaking for a unanimous Court, said:
"It is clear on the face of this text that it does not purport
to confer power to levy income taxes in a generic sense -- an
authority already possessed and never questioned -- or to limit and
distinguish between one kind of income taxes and another, but that
the whole purpose of the amendment was to relieve all income taxes
when imposed from apportionment from a consideration of the source
whence the income was derived. Indeed, in the light of the history
which we have given and of the decision in the Pollock
case and the ground upon which the ruling in that case was based,
there is no escape from the conclusion that the amendment was drawn
for the purpose of doing away for the future with the principle
upon which the Pollock
case was decided -- that is, of
determining whether a tax on income was direct not by a
consideration of the burden placed on the taxed income upon which
it directly operated, but by taking into view the burden which
resulted on the property from which the income was derived, since,
in express, terms the amendment provides that income taxes, from
Page 253 U. S. 263
the income was derived, shall not be subject to the regulation
What was there said was reaffirmed and applied in Stanton v.
Baltic Mining Co., 240 U. S. 103
240 U. S.
-113, and Peck & Co. v. Lowe,
247 U. S. 165
247 U. S. 172
and in Eisner v. Macomber, 252 U.
, decided at the present term, we again held,
citing the prior cases, that the amendment
"did not extend the taxing power to new subjects, but merely
removed the necessity which otherwise might exist for an
apportionment among the states of taxes laid on income."
After further consideration, we adhere to that view, and
accordingly hold that the Sixteenth Amendment does not authorize or
support the tax in question.
Apart from his salary, a federal judge is as much within the
taxing power as other men are. If he has a home or other property,
it may be taxed just as if it belonged to another. If he has an
income other than his salary, it also may be taxed in the same way.
And, speaking generally, his duties and obligations as a citizen
are not different from those of his neighbors. But for the common
good to render him, in the words of John Marshall, "perfectly and
completely independent, with nothing to influence or control him
but God and his conscience," his compensation is protected from
diminution in any form, whether by a tax or otherwise, and is
assured to him in its entirety for his support.
The court below concluded that the compensation was not
diminished, and regarded this as inferable from our decisions in
Peck & Co. v. Lowe, 247 U. S. 165
247 U. S.
-175, and United States Glue Co. v. Oak
Creek, 247 U. S. 321
247 U. S. 329
We think neither case tends to support that view. Each related to a
business, one to exportation, the other to interstate commerce,
which the taxing power -- of Congress in one case, of a state in
the other -- was restrained from directly burdening, and the
holding in both was
Page 253 U. S. 264
that an income tax laid not on the gross receipts, but on the
net proceeds remaining after all expenses were paid and losses
adjusted, did not directly burden the business, but only indirectly
and remotely affected it. Here, the Constitution expressly forbids
diminution of the judge's compensation, meaning, as we have shown,
diminution by taxation as well as otherwise. The taxing act directs
that the compensation -- the full sum, with no deduction for
expenses -- be included in computing the net income, on which the
tax is laid. If the compensation be the only income, the tax falls
on it alone, and if there be other income, the inclusion of the
compensation augments the tax accordingly. In either event, the
compensation suffers a diminution to the extent that it is
We conclude that the tax was imposed contrary to the
constitutional prohibition, and so must be adjudged invalid.
House Report No. 767, p. 29 65th Cong., 2d Sess.;
Senate Report No. 617, p. 6, 65th Cong.3d Sess. And see
Cong. Record vol. 56, p. 10370, where the Chairman of the House
Committee, in asking the adoption of the provision, said:
"I wish to say, Mr. Chairman, that, while there is considerable
doubt as to the constitutionality of taxing . . . federal judges'
or the President's salaries, . . . we cannot settle it; we have not
the power to settle it. No power in the world can settle it except
the Supreme Court of the United States. Let us raise it, as we have
done, and let it be tested, and it can only be done by someone's
protesting his tax and taking an appeal to the Supreme Court."
"I think really that every man who has a doubt about this can
very well vote for it and take the advice of the gentleman from
Pennsylvania [Mr. Graham], which was sound then and is sound now,
that this question ought to be raised by Congress, the only power
that can raise it, in order that it may be tested in the Supreme
Court, the only power that can decide it."
Sparks' Washington, vol. X, pp. 35, 36.
2 Story, § 1628; 1 Kent's Com. *294; 1 Wilson's Works 410, 411;
2 Tucker § 364; Miller 340-343; 1 Carson's Supreme Court 6.
The tax condemned was levied under a provision in a general
revenue law charging a tax of two percent
"upon all salaries and emoluments of office, created or held by
or under the Constitution or laws of this commonwealth, and by or
under any incorporation, institution or company incorporated by the
said commonwealth, where such salaries or emoluments exceed two
Act No. 232, § 2, Penn.Laws 1840, p. 613; Act No. 117, § 9,
Penn.Laws 1841, p. 310.
Cong.Rec. vol. 44, p. 3344.
Cong.Rec. vol. 44, pp. 1568-1570, 3377, 3900, 4067, 4105-4107,
Cong.Rec. vol. 45 pp. 1694-1699, 2245-2247, 2539, 2540.
Cong.Rec. vol. 45, pp. 1694-1699, 2245-2247, 2539-2540.
In passing the income tax law of 1919, Congress refused to treat
interest received from bonds issued by a state or any of its
counties or municipalities as within the taxing power, Cong.Rec.
vol. 57, pp. 553, 774-777, 2988; c. 18, § 213, 40 Stat. 1065, and,
in the regulations issued under that law, the administrative
officers recognize that the salaries and emoluments of the officers
of a state and its political subdivisions are not taxable by the
United States. Reg. 45, published 1920, pp. 47, 313.
MR. JUSTICE HOLMES dissenting.
This is an action brought by the plaintiff in error against an
acting collector of internal revenue to recover a portion of the
income tax paid by the former. The ground of the suit is that the
plaintiff is entitled to deduct from the total of his net income
six thousand dollars, being the amount of his salary as a judge of
the district court of the United States. The Act of February 24,
1919, c. 18, § 210, 40 Stat. 1057, 1062, taxes the net income of
every individual, and § 213, p. 1065, requires the compensation
received by the judges of the United States to be included in the
gross income from which the net income is to computed. This was
done by the plaintiff in error, and the tax was paid under protest.
He contends that the requirement mentioned and the tax, to the
extent that it was enhanced by consideration of the plaintiff's
Page 253 U. S. 265
contrary to Art. III, § 1, of the Constitution, which provides
that the compensation of the judges shall not be diminished during
their continuance in office. Upon demurrer, judgment was entered
for the defendant, and the case comes here upon the single question
of the validity of the above-mentioned provisions of the act.
The decision below seems to me to have been right for two
distinct reasons: that this tax would have been valid under the
original Constitution, and that, if not so, it was made lawful by
the Sixteenth Amendment. In the first place, I think that the
clause protecting the compensation of judges has no reference to a
case like this. The exemption of salaries from diminution is
intended to secure the independence of the judges on the ground, as
it was put by Hamilton in the Federalist (No. 79) that "a power
over a man's subsistence amounts to a power over his will." That is
a very good reason for preventing attempts to deal with a judge's
salary as such, but seems to me no reason for exonerating him from
the ordinary duties of a citizen, which he shares with all others.
To require a man to pay the taxes that all other men have to pay
cannot possibly be made an instrument to attack his independence as
a judge. I see nothing in the purpose of this clause of the
Constitution to indicate that the judges were to be a privileged
class, free from bearing their share of the cost of the
institutions upon which their wellbeing, if not their life,
I see equally little in the letter of the clause to indicate the
intent supposed. The tax on net incomes is a tax on the balance of
a mutual account in which there always are some, and may be many,
items on both sides. It seems to me that it cannot be affected by
an inquiry into the source from which the items more or less
remotely are derived. Obviously there is some point at which the
immunity of a judge's salary stops, or, to put it in the language
of the clause, a point at which it could not be said that his
Page 253 U. S. 266
was diminished by a charge. If he bought a house, the fact that
a part or the whole of the price had been paid from his
compensation as judge would not exempt the house. So if he bought
bonds. Yet, in such cases, the advantages of his salary would be
diminished. Even if the house or bonds were bought with other
money, the same would be true, since the money would not have been
free for such an application if he had not used his salary to
satisfy other more peremptory needs. At some point, I repeat, money
received as salary loses its specific character as such. Money held
in trust loses its identity by being mingled with the general funds
of the owner. I see no reason why the same should not be true of a
salary. But I do not think that the result could be avoided by
keeping the salary distinct. I think that the moment the salary is
received, whether kept distinct or not, it becomes part of the
general income of the owner, and is mingled with the rest, in
theory of law, as an item in the mutual account with the United
States. I see no greater reason for exempting the recipients while
they still have income as income than when they have invested it in
a house or bond.
The decisions heretofore reached by this Court seem to me to
justify my conclusion. In Peck & Co. v. Lowe,
247 U. S. 165
tax was levied by Congress upon the income of the plaintiff
corporation. More than two-thirds of the income were derived from
exports, and the Constitution in terms prohibits any tax on
articles exported from any state. By construction, it had been held
to create "a freedom from any tax which directly burdens the
exportation." Fairbanks v. United States, 181 U.
, 181 U. S. 293
The prohibition was unequivocal and express, not merely an
inference as in the present case. Yet it was held unanimously that
the tax was valid.
"It is not laid on income from exportation . . . in a
discriminative way, but just as it is laid on other income. . . .
There is no
Page 253 U. S. 267
discrimination. At most, exportation is affected only indirectly
and remotely. The tax is levied . . . after the recipient of the
income is free to use it as he chooses. Thus, what is taxed -- the
net income -- is as far removed from exportation as are articles
intended for export before the exportation begins."
247 U.S. 247 U. S.
-175. All this applies with even greater force when,
as I have observed, the Constitution has no words that forbid a
tax. In United States Glue Co. v. Oak Creek, 247 U.
, 247 U. S. 329
the same principle was affirmed as to interstate commerce, and it
was said that, if there was no discrimination against such
commerce, the tax constituted one of the ordinary burdens of
government from which parties were not exempted because they
happened to be engaged in commerce among the states.
A second and independent reason why this tax appears to me valid
is that, even if I am wrong as to the scope of the original
document, the Sixteenth Amendment justifies the tax, whatever would
have been the law before it was applied. By that amendment,
Congress is given power to "collect taxes on incomes from whatever
source derived." It is true that it goes on "without apportionment
among the several states, and without regard to any census or
enumeration," and this shows the particular difficulty that led to
it. But the only cause of that difficulty was an attempt to trace
income to its source, and it seems to me that the Amendment was
intended to put an end to the cause, and not merely to obviate a
single result. I do not see how judges can claim an abatement of
their income tax on the ground that an item in their gross income
is salary, when the power is given expressly to tax incomes from
whatever source derived.
MR. JUSTICE BRANDEIS concurs in this opinion.