1. Assuming that no constitutional right of the taxpayer is
invaded, the question whether income tax returns shall be published
or kept secrets addressed to the discretion of Congress. P.
268 U. S.
386.
2. Section 257(b) of the Revenue Act of June 2, 1924, directs
the Commissioner of Internal Revenue to prepare, each year, and
make
"available to public inspection in such manner as he may
determine, in the office of the collector of each internal revenue
district and in such other places as he may determine, lists
containing the name and post office address of each person making
an income tax return in such district, together with the amount of
the income tax paid by such person."
The same Act (§ 1018) reenacts § 3167 Rev.Stats., which makes it
a misdemeanor to print or publish in any manner whatever "not
provided by law" any income return or any part thereof, etc.
Held, in view of the legislative history of these
provisions and the evident policy of the Act to secure publicity of
the information authorized to be put into the lists, that
publication by newspapers. of the names and amounts of taxes so
listed is not within the inhibition of § 3167. P.
268 U. S.
385.
3 F.2d 190 affirmed.
Error to a judgment of the district court sustaining a demurrer
to an indictment accusing the editor and the managing editor of
divers newspapers of printing and publishing parts of federal
income tax returns, in violation of § 1018 of the Revenue Act of
June 2, 1924, reenacting Rev.Stats. § 3167.
Page 268 U. S. 384
MR. JUSTICE SUTHERLAND delivered the opinion of the Court.
An indictment was returned in the court below charging
defendants in error, as owner-editor and managing editor of several
newspapers published at Kansas City, Missouri, with printing and
publishing therein parts of certain designated federal income tax
returns, showing the names of the taxpayers and the amounts of
their income taxes. Demurrers were interposed to the indictment
upon the ground that the facts set forth were not sufficient in law
to charge any crime against the defendants, because the information
so published was open to public inspection, constituted a public
record available to the general public, and, consequently, was
proper matter for news publication, and that, if any statute
attempted to forbid or penalize such publication, it contravened
the First Amendment to the federal Constitution, which prohibits
Congress from making any law abridging the freedom of speech or of
the press. The court below sustained the demurrers and dismissed
the indictment. 3 F.2d 190.
The indictment is drawn under that part of § 1018 of the Revenue
Act of June 2, 1924, c. 234, 43 Stat. 253, 344-346, which reenacts
R.S. § 3167, copied in the
Page 268 U. S. 385
margin.
* Section 257(b)
of the same Act, 43 Stat. 293, provides:
"The Commissioner shall as soon as practicable in each year
cause to be prepared and made available to public inspection in
such manner as he may determine, in the office of the collector in
each internal revenue district and in such other places as he may
determine, lists containing the name and the post office address of
each person making an income tax return in such district, together
with the amount of the income tax paid by such person."
The prohibition against publication contained in § 3167, it will
be seen, is not absolute, but subject to possible qualification by
other provisions of law. The language is that it shall be unlawful
to print or publish in any manner "not provided by law" any income
return or any part thereof, etc. On behalf of defendants in error,
it is contended that § 257(b) effects such a qualification. To this
the government replies that the extent to which that provision goes
is to authorize the Commissioner of Internal
Page 268 U. S. 386
Revenue to make available for public inspection lists showing
names of taxpayers and amounts of taxes paid by them, and that this
falls short of authorizing the printing and publishing of the
information contained in the lists.
Something is said in the briefs, and was said at the bar, as to
the wisdom, on the one hand, of secrecy, and, on the other hand, of
publicity, in respect of tax returns. But that is a matter
addressed to the discretion of the lawmaking department, with which
the courts are not concerned so long as no constitutional right or
privilege of the taxpayer is invaded, and there is no contention
that there is any such invasion here, whichever view may be
adopted. The problem therefore is primarily one of statutory
construction, the disposition of which will determine whether the
constitutional question as to the freedom of the press needs to be
considered. For the purposes of the inquiry, we assume the power of
Congress to forbid or to allow such publication as in the judgment
of that body the public interest may require.
The Commissioner is directed to make the lists of taxpayers and
amounts paid available for public inspection in the office of the
collector and elsewhere as he may determine. His discretion in that
respect is limited only by his own sense of what is wise and
expedient . And the inquiry at once suggests itself: to what end is
this discretion, so vested in him, to be exercised? The obvious
answer is: to the end that the names and addresses of the taxpayers
and the amounts paid by them may be generally known. To the extent
of the information authorized to be put into the lists, this is the
manifest policy of the statute, with which the application of §
3167 to the present case, it fairly may be argued, will be out of
harmony. Whatever one's opinion may be in respect of its wisdom,
the policy having been adopted as an aid to the enforcement of the
revenue laws or to the accomplishment
Page 268 U. S. 387
of some other object deemed important, it is not easy to
conclude that Congress nevertheless intended to exclude and
severely to penalize the effective form of secondary publicity now
under consideration. Information, which everybody is at liberty to
acquire and the acquisition of which Congress seemed especially
desirous of facilitating, in the absence of some clear and positive
provision to the contrary, cannot be regarded otherwise than as
public property, to be passed on to others as freely as the
possessors of it may choose. The contrary view requires a very dry
and literal reading of the statute quite inconsistent with its
legislative history and the known and declared objects of its
framers.
Prior to the adoption of the Sixteenth Amendment, the policy in
respect of tax publicity, as evidenced by congressional
legislation, had not been uniform. Generally, the earlier acts had
been liberal, and the later ones restrictive, in character. Section
3167 R.S. first appeared in substantially its present form in the
Act of August 27, 1894, § 34, c. 349, 28 Stat. 509, 557. It was
reenacted by the Revenue Acts of 1913, 1916, 1919, and 1921, and by
the existing Act of 1924. The Act of 1913, c. 16, 38 Stat. 177,
provided that tax returns should be open to inspection only upon
order of the President, but allowed state officers under certain
conditions to have access to the returns showing the names and
income of corporations, etc. The Act of 1919, § 257, c. 18, 40
Stat. 1086, in addition to this, allowed stockholders of any
corporation to examine its returns upon conditions therein stated.
That act further provided (p. 1087) that the Commissioner should
cause to be prepared and made available to public inspection, etc.,
"lists containing the names and the post office addresses of all
individuals making income tax returns in such district," and this
was expanded by the present law, § 257(b), Act of 1924, to include
the amount of the income tax paid.
Page 268 U. S. 388
It is significant that, while these progressively liberal
publicity amendments were being made, § 3167 -- to the general rule
of which they were in terms opposed -- was carried along by
reenactment without change, plainly indicating that, in the opinion
of Congress, by the application of the qualifying clause "not
provided by law," the scope of the general rule against publication
would become automatically narrowed to the extent of the
liberalizing exceptions. The congressional proceedings and debates
and the reports of the conferees on the disagreeing votes of the
two Houses, which we have examined but think it unnecessary to
review, strongly confirm our conclusion that Congress,
understanding that this limitation would apply, intended to open
the information contained in the lists to full publicity.
As a result, we hold that, to the extent provided by § 257(b),
Congress meant to abandon the policy of secrecy altogether, and to
exclude from the operation of § 3167 all forms of publicity,
including that here in question.
Judgment affirmed.
MR. JUSTICE STONE took no part in the consideration or decision
of this case.
*
"Sec. 3167. It shall be unlawful for any collector, deputy
collector, agent, clerk, or other officer or employee of the United
States to divulge or to make known in any manner whatever not
provided by law to any person the operations, style of work, or
apparatus of any manufacturer or producer visited by him in the
discharge of his official duties, or the amount or source of
income, profits, losses, expenditures, or any particular thereof,
set forth or disclosed in any income return, or to permit any
income return or copy thereof or any book containing any abstract
or particulars thereof to be seen or examined by any person except
as provided by law, and it shall be unlawful for any person to
print or publish in any manner whatever not provided by law any
income return, or any part thereof or source of income, profits,
losses, or expenditures appearing in any income return, and any
offense against the foregoing provision shall be a misdemeanor, and
be punished by a fine not exceeding $1,000 or by imprisonment not
exceeding one year, or both at the discretion of the court, and if
the offender be an officer or employee of the United States, he
shall be dismissed from office or discharged from employment."