ment created by others as well as themselves for the benefit of others in common with themselves. The difference is that which always exists, and always must exist, between the action of the whole on a part and the action of a part on the whole-between the laws of a government declared to be supreme and those of a government which, when in opposition to those laws, is not

My conclusion is that the Constitutional barrier of State sovereignty is raised only against taxation by Congress which directly impedes the exercise by the States or by their agencies of the States' strictly governmental functions.

As Mr. Pierson's objection is that the Corporation Tax imposes a tax on the exercise of privileges pertaining to the corporate form, and as the corporation, in exercising those privileges, does not discharge a governmental function, but merely a private function, I conclude that the statute does not invade the Constitutional barrier of State sovereignty.

Heretofore, in order to discuss the question which I believe would interest the general public, I conceded, for argument merely, that the tax was imposed on "the privilege of doing business in the corporate form." I do not, however, believe that the courts will find that the tax is of that character. In interpreting a statute a court is not permitted to consider the opinion of its framers sponsors, but must find its meaning in its language alone.

or

The statute states that the tax is im

posed on corporations and joint stock companies" organized for profit and having a capital stock represented by shares,' "with respect to the carrying on or doing business" by such corporations or joint stock companies. This is plain language. Mr. Pierson concludes, however, that the tax was not intended to be imposed on the mere privilege of doing business, because the privilege of individuals and copartnerships to do the same business is not taxed, and that omission, he argues, would violate the requirement of the Constitution that excises shall be "uniform throughout the United States." But the "uniformity" limitation of the Constitution requires geographical uniformity only,1 not equality, as Mr. Pierson seems I Knowlton vs. Moore, 178 U. S. at pp. 84 to 106..

to assume. Mr. Pierson would not claim, I feel sure, that the tax is not geographically uniform.

Also he takes no account of the fact that the Act similarly taxes the doing of business by joint stock companies which are partnerships and derive their privilege to do business with "a capital stock represented by shares" from the common law and not from statutory grants by the States.

If any attack is to be made on the statute based on the fact that corporations and joint stock companies "organized for profit and having a capital stock represented by shares are singled out to be taxed on their privilege of doing business, that attack must be based on the claim that the basis of classification designated in the foregoing quotation is arbitrary, as to corporations, and deprives them of their property without due process of law.1 It has been argued with great force by Senator Root that, as the principle of this basis of classification is followed by a large number of States in imposing taxes, the Federal Government may adopt the same basis of classification without being guilty of arbitrary discrimination.

To say that corporations may not be classified according to their possession of "a capital stock represented by shares," because they derive that privilege from a State grant, while joint stock companies may, because they do not derive the right from that source, would be to hold that corporations are not only entitled to a protection of the laws equal to that accorded to joint stock companies, but that they are entitled to greater protection.

I do not agree with Mr. Pierson that many good lawyers . have assumed, somewhat too hastily, that the tax in ques

tion was an excise tax on business or occupation like that involved in the Spreckels case, and that the only Constitutional question, therefore, was one of classification."

I believe that the tax is precisely of that character, namely, merely a tax on the doing of business, and that the only question involved is whether, in singling out for the tax corporations and joint

I Constitution, Fifth Amendment. 2 See his speech in the United States Senate, delivered July 1, 1909.

stock companies "organized for profit and having a capital stock divided into shares," Congress made an arbitrary an arbitrary classification depriving the corporations of their property without due process of law.

Be that as it may, even if the tax be imposed, as Mr. Pierson contends, not on the doing of business, but on "the doing of business in a corporate form," I believe that, nevertheless, it invades no Constitutional barrier of State sovereignty.

I

N the period following the New York municipal election many prognostications have been made and are being made as to what kind of government the city will have under its newly elected Mayor. One thing is fairly certain. New York will have an experiment in police administration, which, whether it succeeds or fails, will be a study well worth while for those interested in that difficult subject. Mr. Gaynor as Mayor will name the Police Commissioner. He can be expected to select a Commissioner who will on general lines conduct his office in accordance with certain principles, for which the Mayor as a judge and citizen has stood steadfastly, in season and out of season, for twenty years. Whether those principles will succeed or fail is the experiment which New York will see demonstrated.

During a campaign filled with bitter personalities, Mr. Gaynor was represented to the public as a Judge who had been the " protector " of crime. The law reports were examined for campaign material.

His decisions (and there are many of them) granting injunctions, restraining the police in certain of their efforts to suppress alleged disorderly resorts and gambling dens, were made to serve campaign purposes. All these cases were cited to show that under the régime of Mr. Gaynor, a man of an austere and serious type, the city would have a repetition of the "wide open town which it had under the beef-eating, convivial "Bob" Van Wyck. It may be that these prophecies will prove true. If they prove true, they are likely to result, not from any special sympathy with vice, any belief in

the philosophy of "liberality," on the part of the new Mayor. If New York has a wide-open town under Mr. Gaynor, it will come from a demonstration that his theory of police administration, of the functions and powers of police officers, is inadequate to meet prevailing conditions. For this reason, a study of that theory embodied in his decisions and public utterances may be of interest at this time.

There are certain ancient legal maxims embodied in the American law which come to us as the inherited result of conflicts between the English people and their rulers, and by which were established the rights of individuals against the oppressive power of kings and magnates. The Magna Charta gave us some of them; the struggle of the people against the despotism of Charles I and the more insidious despotism of Charles II gave us others. These legal maxims are something more than maxims; they are milestones in the history of English freedom. They have been written into our Constitutions, State and National, and form the very foundation of the law of the land. For centuries they were in England considered of priceless value and of unequaled importance. As the power of kings grew less, as in our own country the authority of the king and his royal governors was replaced by commonwealths governed by elective magistrates, as the police officer became a representative, not of an arbitrary hereditary ruler, but of the people through these elective officers, and as other problems of government came along to engross our attention, these old principles of law, while not

obsolete, seemed less important and reIceived less 'and less attention from the people. In the meantime, in our great cities police administration became corrupt. It is upon the police power of the King and the State, now represented in our cities by the police officer, that these old maxims were intended to be limitations. The right to be free from unreasonable searches and unwarranted arrests, these and other maxims of the same kind were calculated to preserve liberty for the citizen in the great cities in our own day as they did in the days of Charles I.

The police, however, fell into the habit of disregarding these maxims. Magistrates fell into the habit of overlooking actions by the police who violated them; and the police, unrestrained either by their own superiors or by the criminal courts, developed theories of their own police power which never had a basis in American or English law. Abuses of the fundamental rights of American citizens became almost a custom.

In New York these abuses became most numerous and most flagrant under the last two police administrations, when the police department was under the control of two of the most faithful, diligent, efficient, and honest Commissioners the city has had. Under earlier administrations, when the department was loosely and inefficiently managed, when an active campaign against lawbreakers was not being carried on, when corrupt protection of evil-doers was a prolific source of bribe money, offenses by the police against the law were naturally less frequent than when an aggressive Police Commissioner was insisting upon the punishment of criminals and the suppression of illegal resorts. The methods which the policeman had practiced under corrupt and inefficient police administrations, unrestrained by his superiors, were the methods used, but used more actively, under the command of Commissioners who were zealous to stamp out crime. The same methods of suppressing disorderly places which the police had used on those who did not pay bribes for protection, they used under the new régime upon places which, rightly or wrongly, they suspected of harboring crime. The very efficiency of the new police administrations under McAdoo and

Bingham only brought still further into relief the methods of the police and the conflict between them and the old maxims underlying the general liberty of the citi

zen.

Some examples of these methods as applied will serve as illustrations:

A man named Hale kept a saloon and restaurant at Washington Street opposite Washington Market in New York City. His saloon was on the ground floor and his eating-room on the second floor. Butchers who had stalls in Washington Market leased a room in the upper floor as a clothes room and dressing-room. Beginning in February, 1904, a police captain named Burns kept, for approximately four months, police officers most of the time in Hale's place from midday until it closed at night. They sat about, stood in the dining-room, interfered with people going in, sometimes forbade them to go to the dining-room floor and sometimes forbade and prevented the butchers from entering their clothes room. The butchers gave up their room, and Hale's business fell off. He asked the officers to leave, and they refused. He went with his counsel to the captain of the precinct and asked him to withdraw his men, and the captain refused and said he would keep them there until he drove Hale out of his precinct. The officers had no warrant or other legal process; they had no legal right on the premises. They suspected that a room on the upper floor was being used for gambling. Hale had nothing to do with this room or the incorporated social club which rented it. The police had no evidence of any gaming in this club room or in Hale's room, and had not arrested anybody in or about the place, or made a complaint before a magistrate against any such person.

In June, 1904, Hale applied to Judge Gaynor for an injunction restraining the police from a continual trespass on his property. He got it.

to repeatedly decide that the police have no "It is irksome," said the Judge, "to have right to invade any one's house or place of business without a warrant from a magistrate, except in pursuit of a fleeing criminal the like. The safeguards against such invaor on a call for help against violence and sions and against unlawful arrests, which are found in our constitutions in this country,

are the warp and woof of our system of government and of free government everywhere. They mark the distinction between free government and despotism. When they are set at naught, free government is gone and government by force or despotism takes its place. If the police are suffered to invade and raid houses and business places without warrants, they will inevitably use that as a means of extorting money. Experience shows this to be a thing not open to doubt." In another case, acting without a warrant and without ever having made a complaint to a magistrate, the police, under order from their chief, broke into a club-house occupied by a social club, using axes and crowbars. They smashed the interior doors and partitions, broke the chairs, benches, tables, sideboards, electric lights, and all the fixtures and furniture of the place. The members of the club were seized, knocked about and put out of the house, and warned never to come back. These things were all done without a warrant, and, more than that, without a particle of evidence of any criminal offense whatsoever by any one in the house.

Similar trespasses were repeated thereafter. When the house had been repaired, the police chief would send a squad of police to smash it again. The president of the club applied to Judge Gaynor for an injunction, which was issued. The plea of the police in opposing this application for an injunction was that the house was suspected of being a gambling-house. Judge Gaynor said:

The way the law prescribes is that these police officials should, through their secret service or otherwise, get evidence that the managers or frequenters of this house bet on horse races or play billiards for money, or whatever the suspected offense is, and that they then go to a magistrate and get a warrant and arrest them, and cause them to be held and convicted and imprisoned. That is the wholesome and effective way of the law, and the police ruler who thinks himself so powerful that he can put aside the law and smash into houses is more dangerous to society, a greater menace to the continuance of our free government, than bettors on horse races; for such abuses grow fast once they get under way, and extend all over the land.

If the question be asked, "What are the police rulers to do if they cannot get any evidence?" the answer of the law is simple and emphatic: "Do nothing." Even a suspected murderer has to be let alone if you cannot get evidence against him, let alone people who only commit the smaller offense of betting with each other on a horse race and writing the bet on a card.

In another case, a hotel on the Bowery was picketed by police, who warned every one who entered it that it was a disorderly resort, that it was likely to be raided at any minute and those found there taken · to jail. They entered the saloon attached to the hotel and made similar threats and warnings. They entered it at late hours of the night and compelled inmates to get up and give their names and addresses. No warrant had issued, no charge had been made to any magistrate, no attempt was being made to close an illegal resort, by orderly process and on due evidence. The police had tried and condemned it, and were using these old-time police methods to put it out of business. The proprietor sought an injunction, and Judge Gaynor granted it, restraining the police from lawless trespasses on the premises.

This illegal method of closing up this hotel being stopped, the police were compelled to fall back on the law. The necessary evidence was obtained, the proprietor arrested on a warrant and duly convicted in a criminal court and punished.

The advocates of a practical rather than a legal police administration made much of this case in the campaign. "Here is a man," they said, "running a disorderly resort. The police were prevented from closing it up by Judge Gaynor, who protected the place by a judicial decision restraining the police." The subsequent conviction of the proprietor was urged as a triumphant clincher to prove that the police had been right and Judge Gaynor wrong, and that as a Judge he had befriended the criminal classes.

The fact that this argument was made and similar arguments based upon other injunctions of the same kind issued by Judge Gaynor is interesting. It could have been made only on the assumption that the people in New York City had so completely abandoned their interest in the constitutional safeguards of personal liberty that they would be willing to condemn a Judge who had reaffirmed and sustained them; that the people would rather support the police in overriding these safeguards, provided it were demonstrated to. them that the particular resort against which the lawless efforts of the police were directed was in fact a disorderly

one; in other words, that the lawlessness of police methods was unimportant, provided the police were after the right man. We are disgusted with legal technicalities and red tape. We have tired of the law's delay. This feeling is at the basis of the sympathy which in many quarters exists for this "practical" theory of police administration. But can a course of police conduct which would be outrageous as a method if practiced on the innocent and law-abiding be any less so if practiced upon the lawbreaker? Is the liberty of innocent and honest people fully protected if we permit the police to determine who are the innocent, and to act as judge, jury, and executioner upon those whom they find to be wrong-doers? There are some legal principles intended as restraints upon official conduct which are not technicalities and cannot be considered as such by the people, if we have not resolved upon a very radical change in the character of our government. If we are to make that change, we should at least make it deliberately, with our eyes open, and not have it made for us, without our knowledge or consent, by our police employees.

Another phase of this subject which is likely to come to the front in the next four years is the matter of freedom of speech. With perfectly good intentions, the past few police administrations have been busily engaged in knocking off the safety-valve of our governmental machine. Readers of H. G. Wells's book "The Future in America" have probably felt somewhat shocked and bewildered at his chapter on American intolerance.

But a

great part of that intolerance is not a genuine American quality. It results from what we passively submit to in our police.

Take a conspicuous example, the treatment of that entirely unimportant person who figures so much in the press-Emma Goldman. She hires a hall to make an address on Ibsen. Whether she knows anything about Ibsen it is impossible to state, because the police refused to per. mit her to use the hall, forbade the doors to be opened, and placed a cordon of police about the building to drive away would-be listeners. It was not a case of arresting an Anarchist for preaching crim

inal Anarchy. It was the complete suppression of freedom of speech on any subject by a person who was known to entertain Anarchistic notions. The suppression of Emma Goldman doubtless would be a good thing if it did not cost too much. It costs too much if it be done by the suppression of our common freedom of speech. If the right of peaceable assembly and of freedom of speech can be denied to her and her sympathizers because police clairvoyance can determine in advance what she will say, it can be denied to the minister or the lecturer.

Take the bomb-throwing incident in Union Square. A permit had been issued for a meeting of the unemployed. The meeting having been arranged for, the permit was withdrawn because Socialists were to address the crowd. The police used their clubs in driving out of the park the people who had assembled. The bomb was thrown while the meeting was being thus dispersed. The man who threw it said: " Yes, I made the bomb, and I came to the park to kill the police with it. The police are no good. They drove us out of the park and I hate them."

The great body of the American people abhor Anarchy, and have little sympathy with what they understand by the word "Socialism." They are ready to give hearty assent to laws which make the preaching of the Anarchy of bombs and assassinations a criminal offense, but they have never given their assent to police suppression of free speech. To punish the abuse of free speech is one thing; to prevent it in advance, to forbid Socialistic gatherings in public places, to close up halls in which it is thought by the police that Anarchy may be given utterance, is quite another.