The view of a majority of the judges, that the amount of a judge's salary from the state must be omitted from the basis of calculating his state income tax, has received an acceptance in decisions elsewhere sufficient to demonstrate that careful seekers for the correct conclusion may think it not only tenable, but compelled. It seems to me, however, that the weight of authority and reason is against it.
The question is a new one in the state. All the Constitutions, beginning with the Declaration of Rights of 1776, art. 30, have included prohibitions against diminishing the salaries. The first followed more closely the wording of the English act of 1760 (1 Geo. III, ch. 23, sec. 3), in which, completing the Act of Settlement, this final step toward the independence of judges was taken, and provided that their salaries "ought to be secured to the Chancellor and the judges during the continuance of their commission." An amendment in pursuance of an Act of 1804, chapter 55, ratified in 1805, adopted the present *Page 137 phraseology from the Constitution of the United States, article 3, section 1; and it has been continued in all the subsequent Constitutions. In the Constitutions of 1851, art. 4, secs. 4 and 9, and 1864, art. 4, sec. 28, increase as well as diminution of a judicial salary was prohibited. And the protection has been given in the last three Constitutions, not only to the salaries of judges, but to the salaries of all public officers, constitutional and legislative, state and local, whose salaries might otherwise be diminished by the Assembly. "Nor shall the salary or compensation of any public officer be increased or diminished during his term of office." Constitution of 1851, art. 3, sec. 23, 1864, art. 3, sec. 34, and 1867, art. 3, sec. 35.Calvert County v. Monnett, 164 Md. 101, 164 A. 155. But if during the existence of these provisions there has been a tax touching the offices or salaries of judges the present question of its constitutionality has not been raised in any reported case. So far as this jurisdiction is concerned, it is an original case that the court has before it.
With cases of plain, direct reductions in amounts previously fixed for official salaries the court need not concern itself; we have no such case to deal with. And in cases on the relation of taxes to salaries, and their possible effect as diminutions in the constitutional sense, we find differences in the taxes considered and different conceptions controlling. InNorthumberland County Commrs. v. Chapman, 1829, 2 Rawle 73, the Supreme Court of Pennsylvania held that a tax on "all offices and posts of profit," was collectible from judges, notwithstanding a provision in the Pennsylvania Constitution of 1790, art. 5, sec. 2, that salaries of judges should not be diminished during their continuance in office. There was, in the opinion of the court, no diminution of them; "the demand of the judge upon the commonwealth for his services is not in the least degree abated." The same court, in Comm. v. Mann, 5 Watts S. 403, held that a tax assessed on salaries and emoluments of public office, to be deducted before payment, was unconstitutional as *Page 138 a diminution of the salaries. In the opinion, the court remarked, however, that "The property of a judge, his income, whether derived from this or any other source, we admit is a proper subject of taxation. His security will then consist in being placed on the same footing with other citizens, and an abuse of them by any will be speedily corrected." On the other hand, inDobbin v. Erie County Commrs., 16 Pet. 435, 10 L. Ed. 1022, a tax on the office of a captain in the United States revenue service was held a diminution of the salary provided for him by the federal government, and invalid. In New Orleans v. Lea, 1859, 14 La. Ann. 197, taxation of the salary of a judge was again held unconstitutional, as a diminution of it.
In 1863, Chief Justice Taney, in a letter to the Secretary of the Treasury, protested that a Civil War tax of three per cent on the salaries of all officers, to be deducted before payment (Act July 1, 1862, ch. 119, secs. 90 and 91), amounted to a diminution of the salaries, and could not constitutionally apply to those of judges, and the Supreme Court ordered the letter to be published in the reports, 157 U.S. 701. The tax appears to have been deducted until 1869, when the Attorney General, E.R. Hoar, declared it not deductible. Foster, Income Tax, sec. 28. Subsequently in the lower court case of Freedman v. Siegel, 9 Fed. Cas. page 746, No. 5080, a general income tax was held inapplicable to the income of a federal judge to the extent of his official salary; and in Sweatt v. Boston etc. R. Co., 23 Fed. Cas. page 530, No. 13,684, a tax directly upon a judicial salary was held invalid.
It is suggested that in the elaborate enumeration in the Maryland statute (Acts 1937, Ex. Sess., ch. 11, sec. 216) of sources and kinds included in gross income, from which the taxable net income under the statute shall be ascertained, this tax is laid specifically and directly on judicial salaries, because in the beginning there are enumerated "gains, profits and income derived from salaries, wages or compensation for personal services of whatever *Page 139 kind and in whatever form paid," etc. The section is the definition of income under the statute, similar to that contained in many, if not in all, income tax statutes. There is no separate, specific tax laid on salaries, none except on income, and I do not see that this definition of income for that purpose can have any effect to change the incidence of the taxation.
The majority opinion in Evans v. Gore, 253 U.S. 245, 1920, 40 S. Ct. 550, 64 L. Ed. 887, the first case in that court on the effect of a general income tax, supplemented by Miles v.Graham, 268 U.S. 501, 45 S. Ct. 601, 69 L. Ed. 1067, is, of course, strong authority for holding that such a tax is unconstitutional to the extent that a judicial salary forms the basis of computing it. It has been followed, however, in only one state court, the Supreme Court of North Carolina, in Long v.Watts, 183 N.C. 99, 110 S.E. 765. An opinion by the Attorney General of that state, finding a tax on salaries unconstitutional, had previously been accepted. Matter ofTaxation of Salaries of Judges, 131 N.C. 692, 42 S.E. 970. Except in that one state, the majority opinion in Evans v.Gore, as is pointed out in what seems to be the most recent case on the subject, "has not found favor in the State Courts."Dupont v. Green, 1937, 38 Del. 566, 195 A. 273, 277. Nor has it been found acceptable in some cases in the British Dominions and England dealing with the same question.
A number of the state constitutions, including that of Maryland, contain in a prohibition of diminution of salaries of any public officers whatever, some indication of their conceptions of diminution which is not found in the Constitution of the United States. The same meaning must have been in the minds of the framers in exactly the same prohibitions. In some constitutions only one clause is used for all the prohibitions. "Where the same language is used in different clauses of the constitution, upon the same or similar subjects, it must receive the same construction, unless some particular reason to the contrary can be signed." Roberts v. Gibson's Excr., 6 H. J. 116; School Commissioners v. Goldsborough, *Page 140 90 Md. 193, 202, 44 A. 1055; Calvert County v. Monnett, 164 Md. 101, 104, 164 A. 155; Baltimore Annapolis R.R. Co. v. Lichtenberg, 176 Md. ___, 2 A. 2nd 734. What would, within the meaning of the framers, be diminution of the salary of a judge, would be diminution of the salary of a county treasurer, or any other officer, state or local. Calvert County v. Monnett, supra. And if we are to give the clause a meaning to accomplish objects we think the framers had in mind, those objects must have been sought for judges and all other officers alike. But it seems to strain the words of the framers to suppose that they intended by their brief prohibition to secure a tax immunity for all officers, high and low, throughout the State and its local governments, to whom they extended the prohibition. And I am unable to believe that the framers would entertain with respect to the incomes of all these officers the solicitude which we now attribute to them with respect to the incomes of judges.
In 1915 it was held by the Supreme Court of Wisconsin that the amount of a judge's salary must be included in the basis of computing his state income tax. The court considered that the prohibition against diminution of the salary, read together with a constitutional authorization of an income tax, and a requirement that state taxes must be uniform, allowed no exception to the judges. State ex rel. Wickham v. Nygaard,159 Wis. 396, 150 N.W. 513. In Taylor v. Gehner, 329 Mo. 511,45 S.W. 2nd 59, 60, decided in 1932, judges were by a unanimous court held subject to a general state income tax to the extent of their salaries. "Taxes," said the court, "are proportional contributions imposed by the state upon individuals for the support of government and for all public needs. The power to tax is not granted by the Constitution; it is inherent in the Legislature. There are no restrictions or limitations upon the power, except such as are expressly imposed by the State and Federal Constitutions. Section 33, article 6 of the Constitution [of Missouri, Mo. St. Ann.] does not fall within that category. It was never designed or intended to be a limitation upon the taxing *Page 141 power. * * * Nor can it be possible that said section 33 was designed to relieve judges from the burdens of taxation. From its historical background, the purpose intended to be subserved by the section is perfectly well known; it is one of the checks and restraints imposed to secure the independence of the judiciary. It is not a tax exemption provision." And Mr. Justice Holmes' observation in Evans v. Gore is quoted: "To require a man to pay the taxes that all other men have to pay cannot possibly be made an instrument to attack his independence as a judge."
The validity of an income tax based on salaries received by judges was again in question in Poorman v. State Board, 1935,99 Mont. 543, 45 P. 2nd 307, and, again, it was found valid, by a majority of the judges. They agreed that legislative reductions of the amounts fixed for salaries, and taxes directly on salaries, would come under the constitutional ban. The "host" of state officers protected by the constitutional prohibition was taken to indicate that it was not intended to affect a general net income tax on judges. The Court of Appeals of Kentucky, three judges dissenting, came to the same conclusion in 1937 with respect to a state income tax. Martin v. Wolfford, 269 Ky. 411, 107 S.W. 2nd, 267. That court regarded Evans v. Gore, Miles v.Graham, and Long v. Watts, as inapplicable. And in the most recent case found, that of Du Pont v. Green, Del. 1937,supra, the court reached the same conclusion, all judges agreeing.
In England it seems never to have been thought that imposition of a general net income tax on judges along with all other citizens constituted a departure from the principle of the Act of 1760. The Income Tax Act of 5 6 Vict., ch. 23, expressly included the salaries of judges in the basis of the tax. In Australia, in 1907, an Order in Council which had superior, binding force, and forbade, in the words of the Act of 1760, the diminishing of judges' salaries, was cited as preventing application of an income tax to the amounts of the salaries, but the *Page 142 High Court of Australia held without dissent that there was no inconsistency. Cooper v. Commissioner, 4 Comm. L.R. 1304.Evans v. Gore had not yet been decided in this country, but the protest of Chief Justice Taney in 1863 against the tax deduction was before the court. "I think," said Griffith, C.J., "that the inclusion of a judge's salary with the rest of his income in an aggregated fund, upon the balance of which, after specific deductions, an income tax is charged in common with the incomes of all other citizens of the State is different in principle from a direct diminution of his salary qua salary." And Barton, J., added: "The object of the section on its face is to secure the due payment of the salaries according to the terms on which they are allotted, and as long as the commissions of those entitled to them remain in force. That is what is said, and I think it is all that is meant. In this sense the notion of a reduction (e.g. by statute) is excluded, and looking at the origin of the provision, and the clear object to be inferred from the words of the Act of Settlement, I have no doubt that the judicial independence was meant to be protected by that and subsequent legislation, so far that even a sovereign Parliament would not dream of reducing a Judge's salary during his tenure of office. But the ordinary taxation of the State stands on a different footing. It is imposed on all who come within the area prescribed for taxation, whatever their rank or occupation. It is raised for revenue purposes, and one does not think of a Colonial Treasurer trying to levy a tax on the whole people, yielding many hundreds of thousands of pounds, for the mere purpose of vindictively obtaining a few pounds from one or half a dozen judges."
Section 100 of the South Africa Act contained a provision that the remuneration of judges should "not be diminished during their continuance in office," and the decision in Evans v. Gore was cited in opposition to the application of a local income tax to the amounts of judicial salaries, but without dissent it was held applicable nevertheless. Krause v. Commissioner, 1929, So. Afr. *Page 143 App. Div. 286. Wessels, J.A., because of his interpretation of the local statute, found it unnecessary to deal with arguments founded on Evans v. Gore, but the other judges debated them at length. Stratford, J.A., said in his opinion: "But for a decision of the Supreme Court of the United States in Evans v. Gore, I venture to think that the idea would not readily occur to any judge." And quoting the expression of the majority opinion inEvans v. Gore, that the objects of the constitutional prohibition were to attract good and competent men to the bench and to promote that independence of action and judgment which is essential, he remarked (page 295); "But having thus alluded to the purpose of the prohibition, this important consideration is entirely disregarded, for it is not shown how the imposition of an income tax in any way impairs the independence of a judge. * * * It is indeed difficult to appreciate in what manner a judge's independence of action is attacked by having to contribute, with all other citizens of the Union, toward the maintenance of good order and government of the State in which he lives. The majority judgment (in Evans v. Gore), however, is solely based on the conclusion that income tax has the `effect' of diminishing the salary. Now this is only true in the sense that every compulsory expense diminishes a man's salary. And if the ultimate effect is to be the test, then a poll tax or a house tax would have that effect, so also a general rise in the cost of living due to the depreciation of currency. The salaries of the judges of Great Britain were very much lessened in value by the Government's departing from the gold standard. By such departures their salaries were, in effect, diminished, and that, too, was brought about by the action of the Government which paid them. But the judges suffered with the rest of the community and it would be fantastic to think their independence was affected by the general policy of the Imperial Government."
The British North American Act of 1867, which has constitutional force, as we should say, contains (section *Page 144 100) a similar protection for judicial salaries, and no exception was made of them in an income tax of Saskatchewan of 1932; and the question of applicability to those salaries went before the court of ultimate appeal, the Judicial Committee of the Privy Council, in The Judges v. Attorney General of Saskatchewan, 1937, 53 Law. T. Rep. 464. The Committee were unanimously of the opinion that the tax did apply. "Neither the independence nor any other attribute of the judiciary," said the opinion, "can be affected by a general income tax which charges their official incomes on the same footing as the incomes of other citizens."
While the courts of two jurisdictions, then, the federal courts, following Evans v. Gore, and the Supreme Court of North Carolina, have adopted the view that a general income tax of the kind with which we are now dealing is not collectible from judges to the extent of their incomes from salaries, the opposite view has been taken by the Supreme Court of Pennsylvania, in adictum, and by the Supreme Court of Wisconsin, the Supreme Court of Missouri, the Court of Appeals of Kentucky, the Supreme Court of Delaware, the High Court of Australia, the South African Appellate Division, and the Judicial Committee of the Privy Council in England. With these should be considered the opinion of the majority of the Supreme Court of the United States inHale v. State Board, 302 U.S. 95, 58 S. Ct. 102, 82 L. Ed. 72. In the State of Iowa, holders of bonds exempted from taxation of principal or interest were assessed with respect to amounts received from the bonds for "personal net income taxation" by the State. The Supreme Court, accepting the analysis of the state tribunals, that the income tax was an excise and not a tax on property, a tax on the person rather than on the interest from the bonds, held that as such it was no impairment of the exemption contract. "Unless the foregoing analysis is faulty," said the court (page 108, 58 S.Ct. page 106), "the tax complained of by appellants is not laid upon the obligation to pay the principal or interest created by the bonds, at all events within the meaning *Page 145 of the contract of exemption. The tax is laid upon the net results of a bundle or aggregate of occupations and investments. Under a statute so conceived and framed a man may own a quantity of state and county bonds and pay no tax whatever. The returns from his occupation and investments are thrown into a pot, and, after deducting payments for debts and expenses as well as other items, the amount of the net yield is the base on which his tax will be assessed."
As this court, therefore, looks to authority, the weight of it appears favoring inclusion of judicial salaries in the basis of computing a judge's income tax. Reasons which seem to me to have the greater weight are stated in the cases reviewed. I would add that the mere meaning of the words of the constitutional provision, prohibiting the diminishing of official salaries, if taken in their ordinary acceptation, do not support the construction the court is adopting. If an income tax based on the amount of a judge's salary should be, within that meaning, a diminishing of it by the legislative enactment, then it would be accurate to say that the salary of every private citizen subject to the tax is diminished by Act of Assembly; but we know that is not the sense of the words used. The devaluation of the dollar as a result of the Gold Reserve Act of February 1st, 1934, more directly reduced compensations of all public officers, yet we do not think of it as a violation of the prohibition against diminishing them. If by some means it had been ordered that only the content of money paid to judges should be reduced, there might be agreement in holding that an unconstitutional diminution resulted, but the general incidence of the devaluation prevents our giving it that meaning. So it would logically be under the state income tax.
By that tax nothing is done to the salary as a salary. It is not taxed as salary; no deduction is made from it; it is paid in full. It is not then earmarked, but is mingled with the general income, and loses its identity as salary. The subject on which the tax is computed is a net fund after exemptions and allowances made, and the tax is *Page 146 laid without relation to the sources. Such a loss of identity removes money from exemptions which might attach in its former situation. Bass, Ratcliff Gretton, Ltd., v. State Tax Commn.,266 U.S. 271, 45 S. Ct. 82, 69 L. Ed. 282; Lawrence v. State TaxCommn., 286 U.S. 276, 62 S. Ct. 556, 76 L. Ed. 1102. "The net income by way of salary has come into the hands of the recipients to do with as they choose; it has lost its identity as salary and the tax is a direct tax against the individuals — not against salary as property — and constitutes one of the ordinary burdens of government from which none of us should be exempted merely because we happen to be `public officers,' while we look to that government for the protection of lives and liberties, and the enjoyment of the property which we may purchase with the income derived from our salaries." Poorman v. State Board, 99 Mont. 543, 560, 45 P. 2nd 307, 314.
As I see it, what is secured to a judge under the view adopted by the majority is not only an undiminished salary, but an undiminished salary plus a tax immunity.