a blonde and a brunette should there not be a jury de medietate complectione? Incidentally, may it be shown that a purported blonde is such only by virtue of peroxide? This Magistrate has set a perilous precedent, which it were not well to follow. It is better to assume that "The Colonel's lady and Julia O'Grady are sisters under their skin" and "be not concerned with the exact complexion of that skin.

EXEMPTION OF STATE AND MUNICIPAL BONDS FROM FEDERAL INCOME TAX.

INEQUALITIES in an existing law not infrequently evoke a demand for changes which would prove more mischievous than the evils sought to be corrected. The interest on state and municipal bonds, amounting it is said to some fourteen billions of dollars, is excluded from taxable income by an express provision in our present federal income tax law. It has been pointed out by the former secretary of the treasury that wealthy taxpayers have succeeded in avoiding their fair share of the tax burden by making heavy investments in such securities.

Harry Hubbard in an article in the Harvard Law Review, vol. XXXIII, page 794, argues that the exemption is not necessary under the Sixteenth Amendment to the Constitution. The same view has been taken in articles appearing in the New York Times, February 21, 1920, and January 30, 1921. The amendment provides: "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 enumeration.” Does the amendment extend the taxing power of the federal government to new subjects or does it merely dispense with the necessity of apportioning a direct tax in the guise of an income tax among the states according to population? The argument of those who take the former view may be stated as fol

lows: The words "from whatever source derived" are not altogether meaningless and should not be ignored; any proposed tax to be apportioned among the several states according to numbers could not properly be classified as an income tax, and if it could its rates would vary so much in the different states that it would never receive serious consideration by Congress; therefore, since the Sixteenth Amendment was evidently intended for a practical purpose, it must have been intended to extend the federal taxing power to new subjects. A further argument relates to the history of the amendment. It was originally proposed that the amendment should read: "It shall no longer be necessary to apportion direct taxes on incomes among the several states in proportion to population." The omission of the word "direct" and the insertion of the words "from whatever source derived" in the final draft tend to show that the amendment was to have a broader effect than the avoidance of an apportionment.

Those who have taken this view have been seriously disappointed with the decisions of the supreme court construing the amendment. It is plain that their chief concern is the attitude foreshadowed by these decisions toward possible legislation to subject interest on state and municipal bonds to a federal income tax.

Thus far the court has consistently adhered to a construction of the amendment which limits its effect to the manner in which Congress may impose a tax. One of the grounds for the decision that Congress had no power under the amendment to tax stock dividends was the want of that power prior to the adoption of the amendment, as shown by the decisions of the courts, and the lack of any extension of the taxing power in the amendment. See Eisner v. Macomber, (1920) 252 U. S. 189, 40 S. Ct. 189, 64 U. S. (L. ed.) 521. The decision however is not of great weight as an authority on the question of the sources of income subject to the taxing power of Congress, since the court clearly recognized that the so-called stock dividends were not really income at all, as they did not involve any severance of corporate wealth and its distribution to stockholders. Similar statements as to the limited effect of the Sixteenth Amendment, though not necessary to the decisions, were made in Brushaber v. Union Pac. R. Co., (1916) 240 U. S. 1, 36 S. Ct. 236, 60 U. S. (L. ed.) 493, Ann. Cas. 1917B 713, L. R. A. 1917D 414; Stanton v. Baltic Min. Co., (1916) 240 U. S. 103, 36 S. Ct. 278, 60 U. S. (L. ed.) 546, and Peck v. Lowe, (1918) 247 U. S. 165, 38 S. Ct. 432, 62 U. S. (L. ed.) 1049.

The decision in Evans v. Gore, (1920) 253 U. S. 245, 40 S. Ct. 550, 64 U. S. (L. ed.) 887, had a more direct bearing on the controverted point. Here the question was directly raised whether the words "from any source whatever" extended the taxing power of Congress to include the salary of a federal judge. The court again affirmed that the Sixteenth Amendment did not extend the federal taxing power to new subjects and therefore held that it effected no repeal of the constitutional provision against the reduction of the salary of a federal judge during his term of office. Those who endeavor to avoid the effect of this decision on the state and municipal bond question point out that the court was dealing with the repeal of an express prohibition of the Constitution, as interpreted by the court, and not an implied one. But the distinction appears to be a treacherous ground for the argument. Implied powers and restrictions for the protection of the sovereignty of the states as well as for the protection of the national sovereignty are a vital part of the Constitution. They form the organic structure of the body politic and are not likely to be considered repealed by any amendment which does not clearly and necessarily have that effect. Certainly the limitations placed on the states and the national government to prevent conflicts in the exercise of their sovereignty without seriously impairing the sovereignty of either are more fundamental constitutional principles than restrictions to prevent conflicts between different departments of one government, or interference by one department with the work of another department of the same government. Furthermore, the fact that a restriction is found to be implied in the Constitution and as such has been sedulously upheld in court decisions is a strong argument that the restriction is organic in character and not an artificial appendage.

The ground on which it is contended that the Sixteenth Amendment is nullified by the construction denying its extension of the federal taxing power to new subjects appears to be rather insubstantial. It consists of tenuous implications and changes of phraseology in the original draft. It is true that the amendment contains the words "from whatever source derived," but does such a general

ization add any source of income which would not otherwise be included? Congress prior to its adoption had the power "to lay and collect taxes, duties, imposts and excises." Clear language with a definite application rather than an emphatic generalization would seem to be essential to an amendment designed to enlarge a power as broad as that.

Prior to the adoption of the amendment it was established beyond question that the federal government was impliedly prohibited from taxing an instrumentality of a state reasonably necessary for the exercise of its powers as a state. In the early cases on the extent of the taxing power of the state and federal governments the courts approached the subject as one of great difficulty and of momentous consequence. Here they were convinced was the crucial test of a governmental system based on dual sovereignty.

In M'Culloch v. Maryland, (1819) 4 Wheat. 316, 4 U. S. (L. ed.) 579, the court considered a limitation of the state taxing power, but the principle on which the argument of the court proceeded applied equally to the federal taxing power. "The power to tax," said Chief Justice Marshall, "involves the power to destroy, the power to destroy may defeat and render useless the power to create." The court denied the validity of the argument that it was only the abuse of the taxing power that was objectionable and that a state or the federal government should have sufficient confidence in the other to rely on its refraining from such abuse. That confidence was an insufficient basis for a decision on such an important matter appeared to the court to be too plain for argument. Nor did it appear advisable to make the question one of abuse of power and thus require the courts to pass on the "perplexing inquiry so unfit for the judicial department," namely, "what degree of taxation is the legitimate use, and what degree may amount to the abuse of the power."

"The right of the states," said the court in United States v. Baltimore, etc., R. Co., (1872) 17 Wall. 322, 21 U. S. (L. ed.) 597, "to administer their own affairs through their legislative, executive and judicial departments, in their own manner through their own agencies is conceded by the uniform decisions of this court and by the practice of the federal government from its organization. This carries with it an exemption of those agencies and instruments from the taxing power of the federal government. If they may be taxed lightly they may be taxed heavily, if justly oppressively. Their operation may be impeded and may be destroyed, if any interference is permitted. Hence the beginning of such taxation is not allowed on the one side, is not claimed on the other." In that case it was held that the federal government had no power to tax the interest due to a municipal government from a railroad company. In Buffington v. Day, (1870) 11 Wall. 113, 20 U. S. (L. ed.) 122, with respect to an income tax imposed by the federal government, during the civil war, it was held that the salary of a judicial officer of a state was exempt from the tax since it was not within the power of Congress under the Constitution to burden one of the instrumentalities of a state for carrying on the operation of its government.

The precise question of a federal tax on income from state or municipal bonds appears to have been carefully considered for the first time in Mercantile Nat. Bank v.

New York, (1887) 121 U. S. 138, 7 S. Ct. 826, 30 U. S. (L. ed.) 895. In that case the court said: "Bonds issued by the state of New York or under its authority by its public municipal bodies are means for carrying on the work of the government and are not taxable even by the United States and it is not a part of the policy of the government which issues them to subject them to taxation for its own purposes. Such securities undoubtedly repre sent moneyed capital, but as from their nature they are not ordinarily the subjects of taxation, they are not within the reason of the rule established by Congress for the taxation of national bank shares."

The statement, however, as to the invalidity of a tax by the United States government on municipal bonds was not necessary to the decision. The question before the court was whether a tax assessed by a state on shares of stock in an association organized as a national bank was in violation of a federal statute requiring the taxation of a state on such shares not to be at a higher rate than was assessed on other "moneyed capital" in the hands of individual citizens of the state. It was contended that since certain securities, including an issue of municipal bonds. of the city of New York, were made exempt by a statute, the tax on the shares of stock in an association organized as a national bank was void. The court in reply pointed out the exceptional character of municipal bonds as a subject of taxation, but apparently it was not necessary to discuss the power of the federal government to levy a tax on them.

An actual decision on the precise question, however, was given in Pollock v. Farmers' Loan, etc., Co. (1895) 157 U. S. 429, 15 S. Ct. 673, 39 U. S. (L. ed.) 759, the court holding that Congress had no power to levy a tax on income derived from municipal bonds. The defendant company which the plaintiff stockholder sought to enjoin from paying an income tax was the owner of municipal bonds of the city of New York from which it derived an annual income of $60,000. The supreme court held that the tax levied by the federal government on that income was invalid and ordered the lower court to enter a decree in favor of the complainant with respect to the tax on the income from the bonds as well as on the rents and income from the real estate of the defendant. The decision was based on the ground that the tax on the income from the bonds was a tax on the power of the state to borrow money. The court said: "As the states cannot

tax the powers, the operations or the property of the United States nor the means which they employ to carry their powers into execution, so it has been held that the United States have no power under the Constitution to tax either the instrumentalities or the property of a state." Justices White and Harlan, dissenting from the decision of the court with respect to the tax on rents or other income from land, concurred in the opinion of the court on the municipal bond question.

It must be remembered, however, that the whole question is one of adjustment, notwithstanding the attempt of the court in M'Culloch v. Maryland to state a definite rule with respect at least to the extent of the taxing power of a state. An exercise of the taxing power over almost any subject by one government may appreciably affect the exercise of the powers, especially the taxing powers, of another government having jurisdiction in the same territory. Fortunately our Constitution is in the main

not a code of rules but a body of guiding principles; it is elastic. If the existence of the federal government were threatened because of the constitutional limitations on its taxing powers, is there any doubt that its taxing power over the instrumentalities of a state would be enlarged by judicial construction? Nor would the need have to be so urgent to effect a change of view in the construction of the Constitution. However, the question is not one of balancing present conveniences regardless of permanent consequences. Inequalities found in an existing revenue act furnish no ground for overturning principles of constitutional law which have been recognized for more than a century, especially in view of other effective and equitable tax measures, such as a retail sales tax, which are available.

It is by no means clear that the Revenue Act of 1918 does not furnish an opportunity for testing the power of the federal government to tax income from state and municipal bonds. The amount of the excess profits tax under that act depends on two factors, the amount of a corporation's income, and inversely, the amount of its invested capital. By excluding state and municipal bonds from admissible assets in the computation of invested capital the act in effect increases the tax of the corporation. The argument on the other side is, of course, that the interest on such bonds is not included in taxable income and therefore it is proper to make a separation of the actual invested capital of a corporation and base its tax on that part which is employed in producing taxable income. This argument would be valid if all assets the income from which is not taxed were made inadmissible in computing the invested capital on which the tax computation is based. But obligations of the United States, even when held in such amounts that the interest thereon is not subject to tax, are admissible assets for this purpose. What principle of taxation by the federal government could be more clearly an unconstitutional interference with the power of a state to borrow money than one which gives an advantage to its own bonds which is denied to those of a state? Do the constitutional limitations on the federal taxing power for the purpose of preventing an interference with the legitimate exercise by a state of its sovereign powers permit the federal government to hold out to corporations this inducement to invest in obligations of the federal government rather than in the obligations of a state or of one of its municipal subdivisions?

WILLIAM S. REA.

THE DECISION IN THE BERGER CASE.

THE decision reversing the conviction of Victor Berger for the failure of Judge Landis to call in another judge on the filing of an affidavit of prejudice (Berger v. U. S., 41 S. Ct. 230) shows clearly the necessity of an amendment of the federal act relating to affidavits of prejudice. Judicial Code, section 21 (4 Fed. St. Ann. [2d ed.] 832) provides in part as follows: "Whenever a party to any action or proceeding, civil or criminal, shall make and file an affidavit that the judge before whom the action or proceeding is to be tried or heard has a personal bias or prejudice either against him or in favor of any opposite party to the suit, such judge shall proceed no fur

ther therein, but another judge shall be designated in the manner prescribed in the section last preceding, or chosen in the manner prescribed in section twenty-three, to hear such matter. such matter. Every such affidavit shall state the facts and the reasons for the belief that such bias or prejudice exists." Construing this statute, the court holds in the Berger case that while the judge against whom an affidavit is filed cannot try the truth of the affidavit, the facts set out in the affidavit must support the conclusion of prejudice. So far no criticism is possible. But it is held further that a conclusion of prejudice is supported by the fact that the judge has manifested a prejudice against a class of persons to which the defendant belongs. There was no attempt to show that Judge Landis had manifested any prejudice with respect to Berger or those indicted with him. The affidavit showed that he had, apparently in sentencing a man convicted of sedition, spoken very warmly of persons who called themselves "GermanAmerican," stating that their hearts were reeking with disloyalty, and adding a characteristic phrase to the effect that if anyone had said anything worse about Germans than he, he would like to know it so he could use that language. The majority of the court said of the affidavit: "The facts and reasons it states are not frivolous or fanciful, but substantial and formidable, and they have relation to the attitude of Judge Landis's mind toward defendants." fendants." It is a little hard to square the decision with some previous cases, such, for instance, as Thiede v. Utah, 159 U. S. 510, 16 S. Ct. 62, 40 U. S. (L. ed.) 237, holding that the fact that a juror is prejudiced against the saloon business does not disqualify him to sit on the trial of a saloon keeper for crime. But assuming the entire correctness of the decision, the dissenting opinion of Mr. Justice McReynolds makes clear the reason why the law should be otherwise. "Defendants' affidavit discloses no adequate ground for believing that personal feeling existed against any one of them. The indicated prejudice was towards certain malevolents from Germany, a country then engaged in hunnish warfare and notoriously encouraged by many of its natives, who unhappily had obtained citizenship here. The words attributed to the judge (I do not credit the affidavit's accuracy) may be fairly construed as showing only deep detestation for all persons of German extraction who were at that time. wickedly abusing privileges granted by our indulgent laws. Of course, no judge should preside if he entertains such actual personal prejudice towards any party, and to this obvious disqualification Congress added honestly entertained belief of such prejudice when based upon fairly adequate facts and circumstances. Intense dislike of a class does not render the judge incapable of administering complete justice to one of its members. A public officer who entertained no aversion towards disloyal German immigrants during the late war was simply unfit for his place. And while 'an overspoken judge is no well-tuned cymbal,' neither is an amorphous dummy unspotted by human emotions a becoming receptacle for judicial power. It was not the purpose of Congress to empower an unscrupulous defendant seeking escape from merited punishment to remove a judge solely because he had emphatically condemned domestic enemies in time of national danger. The personal concern of the judge in matters of this kind is indeed small, but the concern of the public is very great."

If a traitor or an anarchist can be tried only before a judge who has never manifested a prejudice against treason or anarchy, it certainly is a remarkable state of affairs. Must the judge who has the normal abhorrence of an honest man for that race which has shown to the world that to its members "the acceptance of hospitality connotes no obligation" (Rex v. Vine Street Police Station [1916] 1 K. B. [Eng.] 268) keep his views to himself on pain of being debarred from sitting at the trial of any member of that race for sedition? Must he lose the legitimate opportunity offered by the sentencing of a prisoner in time of war to use his high station to impress on the spectators the necessity of patriotic devotion? An amendment to section 21 of the Judicial Code requiring a showing of prejudice against the accused personally and not as the member of a class should certainly result from this decision.

W. A. S.

EFFECT OF SHERIFF'S FAILURE TO EXECUTE DEATH SENTENCE.

ACCORDING to an item in the lay press the Attorney General of Louisiana handed down an opinion a short time ago to the effect that the mere forgetfulness of a sheriff to execute a warrant of death was no reason for setting the prisoner free. Denying the soundness of the contention that, as the prisoner's life had been jeopardized by the original fixing of the date by the Governor for the execution of the death sentence, the prisoner could not thereafter be executed, the Attorney General said:

Under the law in this State authority is conferred upon the Governor to have the death sentence executed, and it is made the duty of the Sheriff to "execute the criminal in conformity to the death warrant on the date named by the Governor," and the law further provides that the death sentence "shall be executed, by hanging the person by the neck until he be dead."

That these specific provisions of the law might not be carried out in so important a matter by the failure of an officer to perform his duty is altogether beyond reason. The idea may

have originated from an ancient superstition by which it was thought that if the criminal was not thoroughly killed and revived he was thereby rescued by the unforeseen hand of Providence.

The few authorities involving the question are unanimous in recognizing the rule that the failure of a sheriff or other officer charged with the execution of a death sentence to perform that duty, does not entitle the prisoner to his liberty. See People v. Chew Lan Ong, 141 Cal. 550, 75 Pac. 186, 99 A. S. R. 88; Com. v. Hill, 185 Pa. St. 385, 39 Atl. 1055; State v. Kitchens, 2 Hill. L. (S. C.) 612, 27 Am. Dec. 410; Ex parte Nixon, 2 S. C. 4.

In the case last cited, a person accused of murder was convicted and sentenced to be hanged on a certain date. Prior to that date the execution was respited by the Governor for thirty days. Subsequently during the absence of the Governor from the state the acting governor granted another respite. In a habeas corpus proceeding it was contended that the acting governor was without authority to act and that the day of execution as deferred by the respite of the Governor having passed without fault or action on the part of the prisoner, he was held in unlawful custody. Answering this contention the court said:

"Whether the paper recognized by the Sheriff as a respite was or was not in virtue of the Constitution and the law, the prisoner has not been prejudiced by its extension to him. It is claimed that he is entitled to his discharge because the day on which he was to be hanged, under the respite of Governor Scott, having elapsed, his detention is without legal authority. No matter how this result has been accomplished, we find him in the hands of the Sheriff, and the judgment of the court rendered against him has not been enforced. The first question which naturally arises is, what authority could intervene to avoid that judgment? If it has not been superseded or set aside, then it stands as all other judgments of criminal Courts having jurisdiction over the offense and the party; and if the person charged is in custody by its effect, the Court, at least, has not the power to discharge him. The judgment pronounced was final and conclusive, unless set aside for error by some competent Court, or the execution by which it was to be enforced prevented by the interposition of the Governor of his constitutional right to pardon. No order of any such Court, or pardon by the Governor, has been alleged. The mere statement of the proposition might be enough to show that this Court is without authority to interpose. In a matter, however, of so much importance to the prisoner, it is, perhaps, proper that we should present our views more at large. The judgment of the court was, 'that he be hanged until he be dead.' The very application shows that it has not been enforced or superseded by lawful authority. The time was nothing more than a direction to the officer that he should enforce it on a particular day. If he failed in the duty on the day he might be amenable to the law, but the force of the judgment would still remain. Suppose that, without complicity on the part of the Sheriff, circumstances should interpose which would prevent the execution on the day appointed-the sickness of the Sheriff, his abduction by force, the occurrence of a storm-would it follow that the judgment of the Court would be thereby vacated and annulled, and the prisoner freed from the penalty which the law affixed to the crime? If we were without authority on the point, the proposition contended for is so much at variance with the conclusions of sound judgment and common sense, on which it is the boast of the law that all its principles are founded, that, unless we are forced by the weight of precedent, we would feel bound to disregard it. As long ago, however, as the case of the Earl of Ferrers, Hawk. P. C. Bk., 2 Ch. 21, § 1, 'it was resolved by all the Judges that if a peer be convicted of murder before the Lords, in Parliament, and the day appointed by them for execution, pursuant to 25 Geo. 2, should elapse before such execution done, a new time may be appointed for the execution.""

The question whether the sentence should be executed without anything further being done or whether another time should be set for the execution, seems to be a jurisdictional question and the answer depends on whether the setting of the time for execution is an executive or a judicial act. It has been held that the time for the execution of the sentence is not an essential part of the judg ment but merely incidental to its main purpose, i.e., the death of the prisoner. The sentence is not satisfied until the prisoner is dead. Thus in Commonwealth v. Hill, 185 Pa. 385, 39 Atl. 1055, it appeared that a prisoner was sentenced to death and later the governor issued a