1. Under Art. III, § 1, of the Constitution it is the duty of
Congress definitely to declare the amount which a federal judge
shall receive from time to time out of the public funds, and the
times of payment, and the amount thus specified becomes his
compensation, which is protected against diminution during his
continuance in office. Evans v. Gore, 253 U.
. P. 268 U. S.
2. So held
where the salary of a judge of the Court of
Claims was fixed and the appointment was made after enactment of
the "Revenue Act of 1918," which prescribed that the official
compensation of all the federal judges should be included in their
gross income in computing their income taxes.
3. This provision of the Revenue Act for taxation of income
cannot be treated as reducing the salaries of the judges of the
Court of Claims specifically fixed by later enactment. P.
268 U. S.
284 F. 878 affirmed.
Error to a judgment of the district court. against an internal
revenue collector in an action by a judge of the Court of Claims to
recover a sum which the defendant had exacted of him as an income
Page 268 U. S. 505
MR. JUSTICE McREYNOLDS delivered the opinion of the Court.
The defendant in error is a judge of the Court of Claims. He
assumed the duties of that office September 1, 1919, when the
statute (Act Feb. 25, 1919, c. 29, 40 Stat. 1156 1157) declared
that judges of that court should be entitled to receive "an annual
salary of $7,500, payable monthly from the treasury." He was
required to pay to plaintiff in error, Collector of Internal
Revenue, the income taxes for 1919 and 1920 prescribed by "An act
to provide revenue, and for other purposes," approved February 24,
1919 (the Revenue Act of 1918), c. 18, 40 Stat. 1057. In computing
these, his judicial salary was treated as part of his "gross
"Sec. 213. That, for the purposes of this title (except as
otherwise provided in § 233) the term 'gross income'--"
"(a) Includes gains, profits, and income derived from salaries,
wages, or compensation for personal service (including in the
case of the President of the United States, the judges of the
Supreme and inferior courts of the United States,
other officers and employees, whether elected or appointed, of the
United States, Alaska, Hawaii, or any political subdivision
thereof, or the District of Columbia, the compensation received as
such), of whatever kind and in whatever form paid, or from
professions, vocations, trades, businesses, commerce, or sales, or
dealings in property, whether real or personal, growing out of the
ownership or use of or interest in such property;
Page 268 U. S. 506
also from interest, rent, dividends, securities, or the
transaction of any business carried on for gain or profit, or gains
or profits and income derived from any source whatever. . . ."
After payment and the necessary preliminary steps, he instituted
this proceeding to recover, upon the ground that the exactions on
account of his salary were without authority of law. Judgment went
for him in the trial court. It was there said:
"Unless he was taxable under the [Revenue] Act of 1918 [approved
February 24, 1919], he was not taxable at all. If he is taxable
under the statute, he is so by virtue of a clause which applies to
all the federal judges, irrespective of the time they came upon the
bench. That clause as written has been held invalid. . . . When the
clause which has been declared invalid is out of the Act, no other
imposes the tax. What the court here is asked to do is to rewrite
the pertinent portion of the statute in question so that it will
read as did the provisions of the Acts of 1913 and 1916 relative to
this general subject. But that would be for the court to do what
Congress expressly decided not to do. With its eyes wide open to
the possible consequences, it made up its mind to seek uniformity
by imposing the tax upon all judges. Whether it would or would not
have been willing to tax the minority, if the majority were immune,
nobody knows, perhaps not even the members of that Congress itself,
for upon that question they never were called upon to make up their
Plaintiff in error now insists that, although the challenged
provision of the Act of February 24, 1919, has been adjudged
invalid as to all judges who took office prior to that date, it is
obligatory upon those thereafter appointed.
Sec. 1, Art. III, of the Constitution provides:
"The judicial power of the United States, shall be vested in one
Supreme Court, and in such inferior courts
Page 268 U. S. 507
as the Congress may from time to time ordain and establish. 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."
Evans v. Gore, 253 U. S. 245
arose out of the claim that Judge Evans was liable for the tax upon
his salary as prescribed by the Act now under consideration,
although appointed before its enactment. We there gave much
consideration to the purpose, history, and meaning of the
above-quoted section of the Constitution, and, among other things,
"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 accord with its spirit
and the principle on which it proceeds."
"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. . . ."
"The prohibition is general, contains no excepting words, and
appears to be directed against all diminution,
Page 268 U. S. 508
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. . . ."
"For the common good to render him [the judge], 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. . . ."
"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 taxed."
"We conclude that the tax was imposed contrary to the
constitutional prohibition, and so must be adjudged invalid."
Does the circumstance that defendant in error's appointment came
after the taxing Act require a different view concerning his right
to exemption? The answer depends upon the import of the word
"compensation" in the constitutional provision.
The words and history of the clause indicate that the purpose
was to impose upon Congress the duty definitely to declare what sum
shall be received by each judge out
Page 268 U. S. 509
of the public funds and the times for payment. When this duty
has been complied with, the amount specified become the
compensation which is protected against diminution during his
continuance in office.
On September 1, 1919, the applicable statute declared:
"The Chief Justice [of the Court of Claims] shall be entitled to
receive an annual salary of $8,000, and each of the other judges an
annual salary of $7,500, payable monthly."
The compensation fixed by law when defendant in error assumed
his official duties was $7,500 per annum, and to exact a tax in
respect of this would diminish it within the plain rule of
Evans v. Gore.
The taxing Act became a law prior to the statute prescribing
salaries for judges of the Court of Claims, but if the dates were
reversed, it would be impossible to construe the former as an
amendment which reduced salaries by the amount of the tax imposed.
No judge is required to pay a definite percentage of his salary,
but all are commanded to return, as a part of "gross income," "the
compensation received as such" from the United States. From the
"gross income," various deductions and credits are allowed, as for
interest paid, contributions or gifts made, personal exemptions
varying with family relations, etc., and upon the net result
assessment is made. The plain purpose was to require all judges to
return their compensation as an item of "gross income," and to tax
this as other salaries. This is forbidden by the Constitution.
The power of Congress definitely to fix the compensation to be
received at stated intervals by judges thereafter appointed is
clear. It is equally clear, we think, that there is no power to tax
a judge of a court of the United States on account of the salary
prescribed for him by law.
The judgment of the court below is affirmed.
MR. JUSTICE BRANDEIS dissents.