WOE UNTO YOU, LAWYERS!

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CHAPTER V NO TAX ON MAX “’If the law supposes that,’ said Mr. Bumble…. ‘the law is a ass, a idiot.’” –Charles Dickens In case anyone should suppose that the exalted acme of the lawyers’ art known as Constitutional Law can not possibly be so unconvincing, so inept, so silly as a quick summary of Supreme Court logic perhaps makes it sound, it might not be too bad an idea to take one of the Court’s ukases about the-Constitution-and-what-it-really-means, and give that ukase, or opinion, a thorough going-over. The subject of this little experiment in vivisection will be a case known to the lawyers as Senior v. Braden. It was decided by the Supreme Court in the spring of 1935. No, Senior v. Braden was not, of course, chosen at random. It is, for a Supreme Court opinion, mercifully short. It involves the Court’s favorite constitutional springboard, the good old “due process” clause of the Fourteenth Amendment. It reveals the Court at its most legalistic, its most vacuous, its most unsubstantial – though for that purpose any one of a thousand cases might have served equally well. Furthermore, Senior v. Braden was not a unanimous decision; it was a six-three decision. But the existence of a dissent in any case involving “interpretation” of the Constitution has been, for some time now, the rule rather than the exception. And the dissent, be it remembered, doesn’t count anyway. The majority opinion is The Law, the gospel – so much so that even the dissenting judges must accept it, as with Senior v. Braden they have accepted it, when the case is used as the basis of legal argument in the future. In short, Senior v. Braden is today an integral and respectable part of The Law of the Land as set forth by the top craftsmen of the profession. Here, then, interspersed with an almost literal translation of each paragraph into non-legal language, and with a few pertinent (or maybe impertinent) comments, is the Supreme Court’s opinion in Senior v. Braden. Hang on to your hats: -- “January 1, 1932 – tax listing day – section 5328-1, the Ohio General Code provided that all investments and other intangible property of persons residing within the state should be subject to taxation. Section 5323 so defined ‘investment’ as to include incorporeal rights of a pecuniary nature from which income is or may be derived, including equitable interests in lands and rents and royalties divided into shares evidenced by transferable certificates. Section 5638 imposed upon 44
productive investments a tax amounting to 5 per centum of their income yield; and section 5389 defined ‘income yield’ so as to include the aggregate income paid by the trustee to the holder, etc….” (Under Ohio law, anyone who lived in Ohio and owned stocks or bonds or such had to pay a tax of 5% on the income from them, even if he got the income through a trustee or keeper-of-the-property-for-him.) “Appellant owned transferable certificates showing that he was beneficiary under seven separate declarations of trust, and entitled to stated portions of rents derived from specified parcels of land – some within Ohio, some without. On account of these beneficial interests he received $2,231.29 during 1931….” (The man who brought this case up to the Supreme Court – and by way of introduction, through no courtesy of the Court, meet Max Senior – had some pieces of paper showing he had a stake in seven plots of land, in Ohio and elsewhere. His stake was worth over $2,000 to him in one year.) “The tax officers of Hamilton County, where appellant resided, threatened to assess these beneficial interests, and then to collect a tax of 5% of the income therefrom. To prevent this, he instituted suit in the Common Pleas Court. The petition asked that section 5323, General Code, be declared unconstitutional and that appellees be restrained from taking the threatened action. The trial court granted the relief as prayed; the Court of Appeals reversed, and its action was approved by the Supreme Court.” (The local tax-collectors – one of whom, incidentally, was named Braden – tried to get one hundred-odd dollars out of Max. He – through his lawyer, naturally – claimed the Constitution protected his hundred-odd dollars, took the case to court, and got licked – so far.) “With commendable frankness, counsel admit that under the Fourteenth Amendment the state has ‘no power to tax land or interests in land situate beyond its borders; nor has it power to tax land or interests in land situate within the State in any other manner than by uniform rule according to value.’ Consequently, they say ‘if the property of appellant, which the appellees seek to tax in this case, is land or interest in land situate within or without the State, their action is unconstitutional and should be permanently enjoined.’” (The lawyers for the state of Ohio say – with a sort of double-dare in their tone – that if the Court should by any chance call this a tax on land, then they give up. They know that the Court won’t let Ohio tax land in, say, West Virginia; that any such attempt would be labeled a taking of property without due process of law in violation of the Fourteenth Amendment. And – still with a double-dare – they’re willing to throw up the whole case and admit that Ohio can’t even tax Ohio land in 45
Page 1 and 2: WOE UNTO YOU, LAWYERS! FRED RODELL
Page 3 and 4: Preface No lawyer will like this bo
Page 5 and 6: good and which are bad, which are a
Page 7 and 8: average man can find out what is go
Page 9 and 10: matters-of-factness, once they have
Page 11 and 12: was suddenly thrown out of court on
Page 13 and 14: or problem. Of course the truths ar
Page 15 and 16: Supreme Court might do with part of
Page 17 and 18: Law to a specific dispute. Whereas
Page 19 and 20: CHAPTER III THE WAY IT WORKS “…
Page 21 and 22: involving an Implied Rejection of t
Page 23 and 24: question of whether there was or wa
Page 25 and 26: Consideration. It will also, inevit
Page 27 and 28: though, in any case, any abstract l
Page 29 and 30: get into a fight over the terms. Or
Page 31 and 32: Not at all, said the Supreme Court,
Page 33 and 34: much more cautious when it came to
Page 35 and 36: should be slow to construe the clau
Page 37 and 38: practically all Constitutional Law,
Page 39 and 40: federal government the power to col
Page 41 and 42: But the Supreme Court, as might be
Page 43: Thus it can happen - and has often
Page 47 and 48: declaration the trustee undertakes
Page 49 and 50: the statute. The opinon accepted an
Page 51 and 52: (Judges and others have from time t
Page 53 and 54: property tax. And indeed the Court
Page 55 and 56: Thus, the reasoning of the Court in
Page 57 and 58: “jurisdiction” to tax involves
Page 59 and 60: CHAPTER VI THE LAW AND THE LADY “
Page 61 and 62: The lady’s next two problems are
Page 63 and 64: Finally, after dinner, the question
Page 65 and 66: principles of The Law are phrased i
Page 67 and 68: CHAPTER VII FAIRY TALES AND FACTS
Page 69 and 70: is no such thing as a legal problem
Page 71 and 72: of criminal law. And “Waste not,
Page 73 and 74: and wide-open a choice as if the la
Page 75 and 76: drawn up and phrased by lawyers in
Page 77 and 78: CHAPTER VIII MORE ABOUT LEGAL LANGU
Page 79 and 80: He will just trust his lawyer - or
Page 81 and 82: No wonder, then, that the lawyers c
Page 83 and 84: The kind of lawyer who is never los
Page 85 and 86: “justice” for granted than you
Page 87 and 88: Constitutional Law and Criminal Law
Page 89 and 90: Perhaps all this discussion of the
Page 91 and 92: The “casebook method” of teachi
Page 93 and 94: vast majority of law schools still
Page 95 and 96:
and justice which the lawyers claim
Page 97 and 98:
arrangements and like almost every
Page 99 and 100:
with, that The Law is regularly bou
Page 101 and 102:
The Law, toward the side that talks
Page 103 and 104:
that she is a villain too, whereas
Page 105 and 106:
problem or squabble that may arise.
Page 107 and 108:
themselves have often done it with
Page 109 and 110:
knowledge to an examination of the
Page 111 and 112:
practical problems, be better able
Page 113 and 114:
the lawyers’ rule; arbitrators ha
Page 115:
lawyers, are indeed founded on the
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WOE UNTO YOU, LAWYERS!

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