After the six members of the court, who were entitled after the first argument to express an opinion, had equally divided on the principal question presented on this appeal, a reargument was ordered on the application of the Attorney General of the State. All the judges sat on the reargument, and a majority of the court were of the opinion that the judgment of the nisi prius court should be affirmed. Because of the importance of a prompt decision, a per curiam order of affirmance was filed, to be followed by an opinion of the court, and the dissent of the minority.
The first question is whether the appeal could be entertained, since the problem raised involved the exemption from taxation of the salary of every judge of all the courts of the State. The circumstance that the cause here relates to the salary of the Chief Judge of the Supreme Court of Baltimore City, and not to that of any member of the appellate court, left every one of the judges of the latter court with a common, although indirect, interest in the result.
The only constitutional disqualification specifically imposed upon a member of the appellate bench is that he may not participate in the decision of any cause which he heard below. Constitution, art. 4, sec. 15. In addition to this particular provision, there is another constitutional one of general application that: "No Judge shall sit in any case wherein he may be interested or where *Page 109 either of the parties may be connected with him by affinity or consanguinity within such degrees as now are or may hereafter be prescribed by Law, or where he shall have been of counsel in the case." Article 4, § 7. The statutory law has defined this degree of relationship, for the disqualification of every judge of the Court of Appeals, or any judge of a circuit court or the Supreme Bench of Baltimore City, to be a connection by consanguinity or affinity with any party to a cause within the third degree as then defined. Code, art. 26, sec. 31. Furthermore, the former authorization of the appointment of a special judge in the event of a disqualification of a judge of the circuit courts or of the courts of Baltimore City was omitted after the Constitution of 1864 was superseded by that of 1867. Constitution of 1851, art. 4, sec. 22; Constitution of 1864, art. 4, sec. 8; Niles on Constitutional Law, pp. 418, 451, 452.
It is apparent that these constitutional and statutory provisions do not contemplate the unusual conditions of this appeal, where every judge is collaterally affected by the judgment to be rendered on the incidence of a tax upon income.
Under these circumstances the disqualification of all the judges would destroy the only tribunal in which relief by appeal may be sought. To bar the opportunity for redress by appeal is more prejudicial to sound public policy than the alternative, to permit an appeal to be heard by judges whose disqualification is in their collateral interest in the legal effect of the judgment to be rendered. So, of necessity, the rule as to the disqualification of judges must yield if the right of appeal is to be preserved. "The settled rule of law is that, although a judge had better not, if it can be avoided, take part in the decision of a case in which he has any personal interest, yet he not only may but he must do so if the case cannot be heard otherwise." Pollock, First Book of Jurisprudence, 235; 1Freeman on Judgments (5th Ed.), sec. 330; and reviews of cases in 39 A.L.R. 1476; L.R.A. 1915 E, 858; Ann. Cas. 1917 A, 1061. There being neither *Page 110 constitutional nor statutory mandate to the contrary, on the facts of this record, the court is of the opinion that the appeal must be entertained. In re Duncan, Duncan v. McCall,139 U.S. 449, 455, 11 S. Ct. 573, 35 L. Ed. 219; Comm. v. McLane, 4 Gray 427; Hill v. Wells, 6 Pick. (Mass.) 104; Pearce v.Atwood, 13 Mass. 324; Comm. v. Ryan, 5 Mass. 90; Bliss v.Caille Bros. Co., 149 Mich. 601, 113 N.W. 317; In re Ryers,72 N.Y. 1; Philadelphia v. Fox, 64 Pa. 169; Galey v. MontgomeryCounty, 174 Ind. 181, 91 N.E. 593; State v. Nygaard,159 Wis. 396, 401, 150 N.W. 513; State v. Houser, 122 Wis. 534, 100 N.W. 964; Moses v. Julian. 45 N.H. 52. See County Commissioners forCharles County v. Wilmer, 1917, 131 Md. 175, 176, 179-181,101 A. 686; Blackburn v. Craufurd, 1864, 22 Md. 447, 455, 458-460;Magruder v. Swann, 1866, 25 Md. 173, 205, 206; Buckingham v.Davis, 1856, 9 Md. 324, 328-330; Thellusson v. Rendlesham, 7 H.L. Cas. 429, 11 Eng. Reprint, 172; Grand Junction Canal Co. v.Dimes, 12 Beav. 63, 10 Reprint, 984, 3 H. of L. Cas. 759, 10 Reprint, 301; In re Great Charte Parish, 2 Str. 1173, 93 Reprint 1107. Compare London v. Markwick, 11 Mod. 164, 88 Reprint 964; Anon. (1698), 1 Salk. 396, 91 Reprint, 1107;Evans v. Gore, 253 U.S. 245, 247, 40 S. Ct. 550, 64 L. Ed. 887. See Ex parte Bowles, 164 Md. 318, 325-327, 165 A. 169.
An issue of law between parties in reference to a constitutional right must have an appropriate tribunal for its adjudication.
The principal question is one of constitutional law. It is whether the salary which is received by the Chief Judge of the Supreme Bench of Baltimore City may be embraced in the income upon which a state income tax is laid pursuant to the terms of chapter 11 of the Acts of the General Assembly of Maryland passed at its Extraordinary Session held in 1937. While the judgment in the pending litigation affects directly the particular judge against whom the action is brought, the ruling of the appellate court will apply collaterally to the other members of the judiciary. So, in its broader aspect, the *Page 111 question may be more simply stated to be whether the salary paid a member of the judiciary can be lawfully included in the income upon which a tax is imposed by the State, notwithstanding the mandate of the Constitution of Maryland that "no fees, or perquisites, commission or reward of any kind, shall be allowed to any Judge in this State, besides his annual salary, for the discharge of any judicial duty"; and further that the salary "shall not be diminished during his continuance in office." Constitution 1867, art. 4, sec. 6, and secs. 24, 31.
The imperative inhibition of the present Constitution (1867) that a judge's salary shall not be diminished during his continuance in office was embodied in the State's first Constitution of 1776, in article 30 of the Declaration of Rights. The form there adopted was: "That salaries, liberal, but not profuse, ought to be secured to the Chancellor and the Judges, during the continuance of their commissions, in such manner, and at such times, as the Legislature shall hereafter direct, upon consideration of the circumstances of this State." Niles onConstitutional Law, p. 357. Some thirteen years later the Constitution of the United States stated the rule more explicitly in section 1 of article 3, by these words: "* * * The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office." Since the people of the several original states established the Constitution by ratification, this section of the Constitution has not been changed.
The wording of the Constitution of 1776 was not altered until chapter 55 of the Acts of 1804 proposed certain changes, which became, by ratification in 1805, a part of the Constitution of Maryland. By this amendment, the language of the Constitution of the United States was closely followed, and the mandate read: "the salaries of the said judges shall not be diminished during the period of their continuance in office." Niles onConstitutional Law, p. 377. In the Constitution of 1851 *Page 112 (Niles on Constitutional Law, pp. 413-415; Const. 1851, art. 4, sec. 4, sec. 9), as well as in the Constitution of 1864 (Nileson Constitutional Law, pp. 447, 455; Const. 1864, art. 3, sec. 34, art. 4, part 3, sec. 28), the increase as well as the diminution of the judicial salary was prohibited. There was no change in this wording until the Constitution of 1867, when the prohibition of an increase in salary was omitted, and only the diminution of salary denied. Const. 1867, art. 4, secs. 24-31. So that with the adoption of the first Constitution in Maryland in 1776 until the present day there has been a constant denial to the General Assembly of Maryland of the power to diminish the salary of a judge during his continuance in office. Since the Constitution of 1851 there has also subsisted the kindred provision that the salary or compensation of any public officer shall not be increased nor diminished during his term of office.Niles on Constitutional Law, p. 409; Const. 1851, art. 3, sec. 23, p. 447; Const. 1864, art. 3, sec. 34, p. 189; Const. 1867, art. 3, sec. 35; Calvert County Commrs. v. Monnett,164 Md. 101, 164 A. 155.
Although there is abundant evidence that in every constitutional convention the amount of compensation to be paid for the services of the members of the judiciary has been the subject of controversy, the investigation of the court has not disclosed any question having been made as to the propriety of the denial of the power to diminish the amount of salary once that amount is decided. It is true that during the period (1851-1867) of the Constitutions of 1851 and 1864, there was the further prohibition of an increase of compensation, as has been uniformly provided since 1851 with respect to other public officers within the meaning of the constitutions. The difference in public policy which is reflected by these distinctions is attributable to the greater length of the judicial periods of service, which have either been for life and good behavior, or for a period of ten (1864-1867) or fifteen (1867-1939) years, so that there is a greater probability of a depreciation in value of the dollar arising *Page 113 during the lengthy judicial term than in the much shorter terms of office of other public officers. The argument ultimately prevailed that the General Assembly should have the reserved right to redress the loss in purchase power of the dollar by a compensatory increase of salary in the case of the judges, because of their complete dedication to the duties of an office which excluded the professional advancement of their private fortunes. Furthermore, the greater power and opportunity of public officers, who are within the executive and legislative branches, of the government, to increase, if unrestrained, their compensation while in office, afford a justification of the limitation in the public interest. See The Chancellor's Case, 1 Bland 595, 631-647, as to the effect on salaries of judges because of fluctuation and depreciation in value of the currency.Documents Illustrative of the Formation of the Union (1927), Govt. Printing Office, 403, 404, 623, 624; The Making of theConstitution, Warren, pp. 532, 533; Two Centuries' Growth ofAmerican Law, 1701-1901, p. 33; Supreme Court of the UnitedStates, Hughes, 14, 15.
One of the greatest evils to which the colonists were subjected was the effect of a dependent and subservient judiciary. In the arraignment of the King of Great Britain by the Declaration of Independence appears the charge that "He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries." Speaking towards the close of his eventful and great career, Chief Justice John Marshall declared that the greatest scourge to be inflicted upon a people "was an ignorant, a corrupt or a dependent Judiciary."Niles on Constitutional Law, p. 357. With a knowledge born of experience, the framers of the first Constitution of Maryland set forth in article 30 of the Declaration of Rights: "That the independency and uprightness of Judges are essential to the impartial administration of justice, and a great security to the rights and liberties of the people"; and the statement of this fundamental necessity is found expressed in every later *Page 114 Constitution of the State. Niles on Constitutional Law, p. 357 (1776), p. 399 (1851), p. 433 (1864), p. 52 (1867). The importance of these qualities in the judges is greatly increased by the distribution of the powers of the State among her executive, legislative and judicial departments, subject to the mandate that these legislative, executive and judicial powers of government ought to be forever separate and distinct from each other; and no person exercising the function of one of said departments shall assume or discharge the duties of any other. Constitution of 1867, Declaration of Rights, article 8; Niles onConstitutional Law, p. 357; Beveridge's Life of Marshall, vol. 4, p. 495.
A similar limitation upon the Federal Government is not declared in set words of the Constitution, but is imposed as a necessary inference from its provisions. Kilbourn v. Thompson,103 U.S. 168, 190, 26 L. Ed. 377. Thus it results that by both national and state constitutions the independence of the members of the judiciary is of paramount importance. The function of the judges is to ascertain whether legislation has exceeded constitutional bounds, and whether the acts of the executive department are within the limits of its lawful power. If the judge be subservient or dependent upon either the legislative or executive branch of the government, the central unity, balance, and harmony of the government is destroyed. For the judge to be free and independent neither his tenure of office nor his substistence may be at the will of the executive or legislative branch. Therefore the people of Maryland have assured to every judge a definite term of office from which he cannot be removed except for grave and specified causes, and by the procedure prescribed by the Constitution. Article 4, § 3, 4, § 4, 4, § 5, 4, § 14, 4, § 19, 4, § 21, 4, § 27, Declaration of Rights, art. 33. It is not enough for his independence that a judge be distinguished for integrity, wisdom, and legal knowledge and have a certain, fixed term of office, from which he may not be removed by arbitrary action, if he have not a sufficient salary whose amount is beyond the power of *Page 115 the executive or legislative branch of the government to impair. The certainty of a minimum compensation during his occupancy of office is, therefore, of the last importance, as it frees the judge of the undue influence of the General Assembly by a dependence upon that coordinate branch for a support.
The statutory, common, and constitutional laws of the State will fail to provide the remedies, secure the rights and enforce the liabilities of those within their operation, if they be not administered by an independent judiciary without fear or favor of the executive and legislative branches of the government. In the construction, therefore, of the mandate of the Constitution that the salary of a judge shall not be diminished during his continuance in office, the preservation of the independence of the judges ought to supersede all other considerations. As was said by Hamilton in The Federalist: "Next to permanency in office, nothing can contribute more to the independence of the judges than a fixed provision for their support. * * * In the general course of human nature, a power over a man's subsistenceamounts to a power over his will. And we can never hope to see realized in practice the complete separation of the judicial system from the legislative power, in any system which leaves the former dependent for pecuniary resources on the occasional grants of the latter. * * *" The plan of the convention accordingly has provided that the judges of the United States "shall at statedtimes receive for their services a compensation which shall not be diminished during their continuance in office." No. 79 and No. 78. Report of Joseph Story (1806) to Legislature ofMassachusetts, see Life and Letters of Joseph Story, vol. 1, pp. 130-136; 1 Kent's Commentaries (1826), pp. 292-295; Laws andJurisprudence of England and America, Dillon, pp. 118, 120; 2Story on Constitution, secs. 1628-1631; 1 Carson's SupremeCourt, 6; Works of James Wilson (1896), vol. 1, p. 367;Bancroft's History of the Constitution (1882), vol. 2, pp. 29, 196, 197; The American Commonwealth, Bryce, vol. 1, p. 275;Democracy in America, De Tocqueville, vol. 1, p. 178. *Page 116
Theodorick Bland, Chancellor of Maryland, was appointed on August 16th, 1824. When the General Assembly of Maryland met, at the December session, 1824, an angry excitement prevailed against him, and a controversy originated between the House of Delegates and the Senate with reference to his compensation. The House of Delegates asserted the right to reduce the salary of the Chancellor, either by direct enactment that would repeal all the laws which had made provision for its payment, or by a refusal to continue the usual appropriation. The Senate denied this right, on the ground that when the Chancellor came into office his salary was fixed by law and secured to him by the Declaration of Rights, so that, during his continuance of his commission, the Legislature had not the constitutional power to reduce that salary in any manner whatsover, during that period. As a result of this controversy, the session was adjourned without any appropriation, and the Chancellor was thereby totally deprived of all compensation after the close of the session. When the Legislature convened for the December session, 1825, the Chancellor addressed, on December 26th, 1825, a memorial to the General Assembly of Maryland because, independent of its bearing on his fate, which he regarded as of comparatively minor consideration, there were matters involved in the controversy "vitally affecting the constitution, and the safeguard of the people's rights of infinitely greater moment than the mere personal wrongs of the Chancellor." The memorial, with a short statement of the circumstances, is reported in full under the title "The Chancellor's Case" in 1 Bland, pp. 595-686. The constitutional question, in its historical setting, was presented with dignity, learning, completeness and force. Although not an adjudication, it has, through the strength and soundness of its exposition and the gravity of the problem at issue, the weight of an opinion and the importance of a state paper.
The position taken by the Chancellor was that the salary, when fixed, although it may be increased, cannot be *Page 117 in any manner diminished, to the prejudice of the Chancellor, during the continuance of his commission. Again, in the course of the discussion, it is said:
"The salary of the chancellor is to be secured to him; that is, it shall not, at any time, on purpose, or by neglect, be withheld or diminished, during the continuance of his commission. This, the constitution has declared, shall not be directly and purposely done by the General Assembly; and surely, what is prohibited, and, therefore, cannot be directly done, can never be accomplished by any contrivance or indirect movement. * * * Commissions during good behaviour, and salaries secured during the continuance of those commissions, constitute that strong well marked boundary between the judiciary and the other two departments. Thus founded and sustained, the judges are, and can be — and without it they cannot be — a firm, efficient, co-ordinate check and balance in the government. It is this independency of character, that enables the judiciary to shield the citizen against unconstitutional legislation; and against unwarranted wrong and violence from the wealthy and the influential.
"But, it would be a mockery to expect of judges who are dependent upon legislators for their continuance in office, perhaps for their bread, a firmness and independency necessary for such purposes. No judge, thus dependent, would have the boldness to thwart a House of Delegates in their most ill-advised and wanton sports with the constitution." Pages 671, 672.
The effect of this address was immediate and decisive. The memorial was referred by the House of Delegates to a special committee, whose report was a full vindication of the Chancellor's position, and an adoption of the grounds upon which his address proceeded. See paper of William L. Marbury on: "TheHigh Court of Chancery and the Chancellors of Maryland," Proceedings of Maryland State Bar Association (1905), pp. 143-146. The General Assembly passed the necessary legislation to pay the Chancellor his back and future salary. Until the passage of the income tax, no further attempt is known to *Page 118 have been made to diminish, ad invitum, the salary of a judge while in office. Diligent effort has not produced a decision by this appellate court upon the particular phase of the question on this appeal. A distinguished Maryland jurist did have occasion to protest an attempted diminution of his compensation as a federal judge under these circumstances.
Until 1862 no attempt, it is stated, had been made to tax the salaries of judges, but in that year the Congress of the United States passed an act imposing a tax of three per centum on the salaries of all officers in the employment of the United States. The Treasury Department construed this tax to include the salaries of judges, and deducted the amount of the tax from their salaries. Against this action the then Chief Justice of the Supreme Court of the United States, Mr. Justice Roger B. Taney, protested in a formal letter of February 16th, 1863, to S.P. Chase, Secretary of the Treasury. In his letter he called attention to the first section of the third article of the Constitution, and its provision that the compensation of the judges should not be diminished during their continuance in office. He asserted that the act, as construed, would diminish the compensation of every judge three per centum, and that "if it can be diminished to that extent by the name of a tax, it may, in the same way, be reduced from time to time at the pleasure of the Legislature." His communication then continues with these pertinent comments:
"The Judiciary is one of the three great departments of the Government created and established by the Constitution. Its duties and powers are specifically set forth, and are of a character that requires it to be perfectly independent of the other departments. And in order to place it beyond the reach and above even the suspicion, of any such influence, the power to reduce their compensation is expressly withheld from Congress and excepted from their powers of legislation.
"Language could not be more plain than that used in the Constitution. It is, moreover, one of its most important *Page 119 and essential provisions. For the articles which limit the powers of the Legislative and Executive branches of the Government, and those which provide safeguards for the protection of the citizen in his person and property, would be of little value without a Judiciary to uphold and maintain them which was free from every influence, direct or indirect, that might by possibility, in times of political excitement, warp their judgments."
The Chief Justice wrote in maintenance of a constitutional prerogative, and in the belief that the federal judges were disqualified because of interest and so could not hear and decide the question. The Secretary ignored the remonstrance and the Supreme Court, on March 10th, 1863, ordered it to be entered on its records. It will be found reported in full in 157 U.S. 701, 39 L. Ed. 1155, 1156. Nine years later, when Taney was dead, another Secretary of the Treasury came to the conclusion that the tax on the salaries of judges had been illegally withheld, and the amounts paid were refunded. Memoir of Roger B. Taney, Tyler, pp 431-435; Swisher's Taney, pp. 568, 569.
In the Income Tax Act of 1894, 28 Stat. 509, the salaries of the judges were not mentioned, and in the Acts of 1913, 1916, and 1917, 38 Stat. 114, 39 Stat. 756, 40 Stat. 300, 329, the salaries were expressly excepted from the income tax. So, it was not until the Act of 1919 that the income tax was attempted to be laid upon the compensation received by the judges of the Supreme and inferior courts of the United States. In a suit brought by a district judge to test the legality of this imposition, the United States District Court of Kentucky, 262 Fed. 550, held that an income tax on judicial salaries did not diminish the compensation of the federal judges within the meaning of the Constitution. An appeal was taken to the Supreme Court of the United States, and the case is reported as Evans v. Gore, 1920,253 U.S. 245, 40 S. Ct. 550, 64 L. Ed. 887. By the Act of February 24th, 1919, ch. 18, sec. 213, 40 Stat. 1057, 1065, Congress passed an income tax law by which the salaries of the judges of *Page 120 the United States courts were included in the term "gross income." The particular provision by which the compensation of a federal judge was included was section 213, which defined the term "gross income" to embrace all 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 court of the United States * * * the compensation received as such." Thus the point of constitutional law in issue is whether the salary of a federal judge could be included in his income so as to form a part of his income subject to the incidence of a federal income tax.
The case was fully argued and Justice Van Devanter wrote an able and vigorous opinion for the court, in which Chief Justice White and Associate Justices McKenna, Day, Pitney, McReynolds, and Clarke concurred. Justices Holmes and Brandeis dissented. The Court held (1) that the constitutional prohibition against the diminution of salaries of federal judges during continuance in office is to be construed as a limitation imposed in the public interest and not as a private grant for the benefit of the members of the judiciary; (2) that the Sixteenth Amendment, relating to the income tax, does not extend the taxing power to new or excepted subjects, but merely removes all occasion otherwise existing for an apportionment among the States of taxes laid on incomes from whatever source derived; and (3) that any diminution whose necessary operation and effect withholds or takes from a federal judge a part of the compensation promised by law for his services is forbidden by the constitutional provision, and the prohibition embraces and prevents diminution by taxation.
The argument was made that the tax was upon the judge's income, and, consequently, since the income was the money yield received by the judge from various sources, his salary or compensation, although included in his income for the purposes of taxation, was not diminished by the imposition of a tax upon an income of *Page 121 which the salary might constitute the whole or a part, accordingly as he did or did not have other sources from which he derived a yield. It is difficult to follow reasoning which has different results by the simple device of calling the same thing "salary or compensation," for one result, and "income" for another result. And the opinion of the court in Evans v. Gore,supra, conclusively and finally demonstrates the error of this contention in the following words:
"Obviously, diminution may be effected in more ways than one. Some may be direct and other 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 had been promised by law for his services must be regarded as within the prohibition. Nothing short of this will give full effect to its spirit and principle. Here the plaintiff was paid the full compensation, but was subjected to an involuntary obligation to pay back a part, and the obligation was promptly enforced. Of what avail to him was the part which was paid with one hand and then taken back with the other? Was he not placed in practically the same situation as if it had been withheld in the first instance? Only by subordinating substance to mere form could it be held that his compensation was not diminished. Of course, the conclusion that it was diminished is the natural one. * * * But it is urged that what the plaintiff was made to pay back was an income tax, and that a like tax was exacted of others engaged in private employment. If the tax in respect of his compensation be prohibited, it can find no justification in the taxation of other income as to which there is no prohibition; for, of course, doing what the Constitution permits gives no license to do what it prohibits.
"The prohibition is general, contains no excepting words, and appears to be directed against all diminution, whether for one purpose of another; and the reasons for its adoption, as publicly assigned at the time and commonly accepted ever since, make with impelling force for *Page 122 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." Pages 254, 255, 40 S.Ct. page 553.
It has been urged upon our attention that this tribunal is not bound by Evans v. Gore, supra, but its authority on the question at bar is derived from the power and cogency of its reasoning in respect of a constitutional inhibition similar to that found in the Constitution of Maryland. It is furthermore the construction of a provision of a federal income tax statute which has its counterpart in the statute now before this court for construction. As in section 213 of the federal act, the term "gross income," as used in the statute passed by the General Assembly of Maryland, "includes gains, profits, and income derived from salaries, wages or compensation for personal services 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, or interest in such property * * * also from rent, royalties, interest, dividends, securities or transactions of any business carried on for gain or profit, or gains or profits, and income derived from any source whatever, including gains or profits and income derived through estates or trusts by the beneficiaries thereof, whether as distributive or as distributable shares. The amount of all such items shall be included in the gross income for the taxable year in which received by the taxpayer," unless otherwise to be accounted for as of a different period. There are certain specified receipts which are not to be reported as "gross income," and certain deductions to be made from the total sum of the gross income. The sum of the "gross income," if there are no deductions, or the difference between the sum of the "gross income" and the sum of the deductions, if there are one or more allowable, is called the "net income," which is defined as "the gross income *Page 123 of a taxpayer less the deductions allowed." Sections 216-219 of chapter 11 of Acts of Extra Session, 1937. Not only are the former federal income statute and the present income statute of Maryland substantially the same in regard to the question under consideration, but the conclusion reached is in harmony with the memorial of Chancellor Bland, and the view of that distinguished Maryland lawyer and jurist, Chief Justice Taney. In Taney's letter, the protest is against "the right of the Legislature to diminish in this or any other mode the compensation of the Judges when once fixed by law." Chancellor Bland is equally explicit: "The salary of the chancellor is to be secured to him; that is, it shall not, at any time, on purpose, or by neglect, be withheld or diminished, during the continuance of his commission. This, the constitution has declared, shall not be directly and purposely done by the General Assembly; and surely, what is prohibited, and therefore, cannot be directly done, can never be accomplished by any contrivance or indirect movement." 1 Bland, 671; Thomas v. Owens, 4 Md. 189, 226-229. It should, also, be noted that in Calvert County v. Monnett, 1933, 164 Md. 101,164 A. 155, 156, the provision of the Constitution (article 3, section 35) that the salary or compensation of any public office shall not be increased or diminished during his term of office was before the court. The only difference between the constitutional prohibitions construed in the case last cited and the prohibition for consideration in the present appeal is that the inhibition in the former case was against an increase in compensation as well as against its diminution. While not applicable to the judiciary, the provision is sufficiently analogous to give pertinency to the fact that the court did not construe its effect narrowly but held it to apply to those holding offices of legislative creation as well as those holding offices directly established by the Constitution.
The opinion, which was written for the court by Chief Judge Bond, said: "The present prohibition is comprehensive in terms and ordinary meaning. And the constitutional *Page 124 purpose of protecting officers from improper pressure by threats of diminution of compensation would seem applicable to officers without distinction with respect to the origins of their offices." The provision applicable to the judiciary of Maryland is none the less comprehensive in terms and ordinary meaning. So, in consonance with the principles of construction applied inCalvert County v. Monnett, supra, it may be found that the proper construction of the constitutional prohibition in the instant case protects the judges from the diminution of their salaries by an income tax, whether operating directly or indirectly. See Anne Arundel County v. Goodman, 172 Md. 559, 561, 192 A. 325.
It is submitted that this conclusion is irrefragably supported by Evans v. Gore, supra; that it is sustained by the legal principles inculcated by our decisions and that it is confirmed by the genius of the constitutional structure of the State.Supra. The latest affirmation of this State's consistent policy was in 1891, when the voters of the State adopted an amendment to the Constitution which is popularly known as the Budget Amendment, and is found in section 52 of article 3 of the Constitution. By the Budget Amendment one of the grand divisions of the budget bill to be submitted to the General Assembly is designated by the title "Governmental Appropriations," and among the appropriations necessarily incorporated in the "Governmental Appropriations" are the itemized appropriations: "(3) for the Judiciary Department, as provided by law, certified to the Governor by the Comptroller; * * * (5) for the salaries payable by the State under the Constitution and laws of the State." The Budget Amendment declares that: "The General Assembly shall not amend the budget bill so as to affect either the obligations of the State under Section 34 of Article III of the Constitution, or the provision made by the laws of the State for the establishment and maintenance of a system of public schools, or the payment of any salaries required to be paid by the State of Maryland by the Constitution thereof; and the General Assembly may amend *Page 125 the bill by increasing or diminishing the items therein relating to the General Assembly, and by increasing the items therein relating to the judiciary, but except as hereinbefore specified, may not alter the said bill except to strike out or reduce items therein, provided, however, that the salary or compensation of any public officer shall not be decreased during his term of office; and such bill when and as passed by both houses shall be a law immediately without further action by the Governor." Article 3, § 52, subsection B. There are further provisions of the Budget Amendment which provide that the estimates for the legislative department, the judiciary and the public schools, when duly presented to the Governor, must be included by him in the budget without revision. Code (Flack), pp. 105-108;Baltimore v. O'Conor, 147 Md. 639, 643-646, 128 A. 759. It is doubtful if there can be found in the constitution of any state of the federal union more plain, precise and peremptory provisions promulgating the popular will that the judicial salary must not be reduced during continuance in office.
The great weight of reason and authority are in accord with the construction adopted. Miles v. Graham, 268 U.S. 501, 45 S. Ct. 601, 69 L. Ed. 1067; Collector v. Day, 11 Wall. 113, 127, 20 L. Ed. 122, 126; Dobbins v. Erie County, 16 Pet. 435, 450, 10 L. Ed. 1022, 1027; Pollock v. Farmers' Loan Trust Co.,157 U.S. 429, 604, 606, 15 S. Ct. 673, 39 L. Ed. 759; 13 Opinions ofAtt. Gen. (Hoar) 161 (1869); Freedman v. Siegel, 9 Fed. Cas. page 746, No. 5080; Comm. ex rel. Hepburn v. Mann, 5 Watts S. 403, 415; Comm. v. Mathues, 210 Pa. 372, 394, 59 A. 961;Bailey v. Waters, 308 Pa. 309, 162 A. 819; O'Donoghue v.United States, 289 U.S. 516, 531, et seq, 53 S. Ct. 740, 77 L. Ed. 1356; Sweatt v. Boston etc. Ry. Co., 23 Fed. Cas. p. 530, No. 13,684; New Orleans v. Lea, 14 La. Ann. 197; Re Taxationof Salaries, 131 N.C. 692, 42 S.E. 970; Purnell v. Page,133 N.C. 125, 45 S.E. 534; Long v. Watts, 183 N.C. 99,110 S.E. 765; Cooley, Constitutional Limitations (8th Ed.), vol. 2, pp. 1095-1097; Willoughby on the Constitution of the United States (2nd Ed.), sec. *Page 126 87, p. 154, sec. 411, p. 711; Principles of JudicialAdministration, Willoughby, pp. 357-360.
The State concedes that the Legislature has no power directly to reduce a judge's salary during his continuance in office.Calvert County v. Monnett, 164 Md. 101, 104, 164 A. 155; AnneArundel County v. Goodman, 172 Md. 559, 192 A. 325. It is a sound principle of law that what is prohibited from being done directly by legislation is, also, prohibited from being done indirectly. Unless this were the rule applied, the inhibition would be ineffectual. Miller v. Milwaukee, 272 U.S. 713, 715, 47 S. Ct. 280, 71 L. Ed. 487; Macallen Company v. Massachusetts,279 U.S. 620, 49 S. Ct. 432, 73 L. Ed. 874; Baltimore v. O'Conor,147 Md. 639, 646, 647, 652, 128 A. 759; Fairbank v. UnitedStates, 181 U.S. 283, 294, 300, 21 S. Ct. 648, 45 L. Ed. 862;Brown v. Maryland, 12 Wheat. 419, 6 L. Ed. 678.
So, it must necessarily be sound that should an enactment diminish, either directly or indirectly, the compensation of a judge during his period of service, the enactment is invalid.Supra. The State, therefore, cannot prevail unless the effect of the income tax is neither directly nor indirectly to diminish the judicial salary. The State rejects the decision of the Supreme Court in Evans v. Gore, supra, and relies upon the dissent of Mr. Justice Holmes and Mr. Justice Brandeis in that case. The court here cannot adopt that view, as its judgment is that the prevailing opinion of Mr. Justice Van Devanter anticipated and ably refuted the points made in the dissent. The decisions cited of Dupont v. Green, 1937, 38 Del. 566, 195 A. 273, which reversed a decision of the Superior Court for New Castle County, Green v. Dupont, 37 Del. 46, 180 A. 437; Martinv. Woolford, 1937, 269 Ky. 411, 107 S.W. 2nd 267; Poorman v.State Board, 1935, 99 Mont. 543, 45 P. 2nd 307, and Taylor v.Gehner, 1932, 329 Mo. 511, 45 S.W. 2nd 59, were all rendered after Evans v. Gore, supra, and follow specifically the dissent in Evans v. Gore, supra, although in Dupont v. Green, supra, the effect of the income tax upon a salary of the Attorney General of Delaware was involved and the court declined to express *Page 127 its opinion with respect to the salary of a judge. 195 A. page 275. See Comm. v. Mathues, 210 Pa. 372, 59 A. 961. The reasoning of the court, however, clearly indicated it would follow the dissent.
Another case much relied on is State ex rel. Wickham v.Nygaard, 1915, 159 Wis. 396, 150 N.W. 513. The decision was a few years before Evans v. Gore, supra. The single provision of the Wisconsin Constitution which related to the permanency of compensation was the inhibition: "nor shall the compensation of any public officer be increased or diminished during his term of office." The court stated that if this were the only clause of the constitution, there was not much authority to be found, but what little there was tended to support the claim of the circuit judge that his judicial salary was not subject to the income tax. The Wisconsin Constitution first provided: "The rule of taxation shall be uniform, and taxes shall be levied upon such property as the Legislature shall prescribe," Const. Wis. 1848, art. 8, sec. 1; but this original section was amended in 1908 by the addition: "Taxes may also be imposed on incomes, privileges and occupations, which taxes may be graduated and progressive, and reasonable exemptions may be provided."
The court stressed the fact that the amendment was broad and sweeping, making and containing no exceptions, and construed the change in the constitution to authorize the taxation of incomes in any case where the power rests in the State to impose such a tax. In none of these decisions are the constitutional provisions against a diminution of judicial salary so explicit as those of the Maryland Constitution, as clarified and strengthened by the specific and imperative safeguards of the Budget Amendment. Const., art. 3, sec. 52. While the constitutions of Delaware, Kentucky, Montana, Missouri and Wisconsin present substantial differences in their provisions which relate to the compensation of the judiciary, and afford grounds of distinction which must be considered, nevertheless the reasons which controlled the appellate tribunals of those states are of greater importance. *Page 128 Cooley on Taxation (4th Ed.), sec. 1748, sec. 1749, n. 63, p. 1749. As has been stated, these reasons are substantially those presented by Mr. Justice Holmes in Evans v. Gore, supra, and concurred in by Mr. Justice Brandeis. Their refutation may well be left to the prevailing opinion of Mr. Justice Van Devanter, but the importance and unusual nature of the pending appeal seem to require a full presentation of the views of this court.
It may be first noted that Mr. Justice Holmes did not dissent in Miles v. Graham, 1925, supra, which followed Evans v.Gore, 1920, supra, although Mr. Justice Brandeis did. As a further indication of an acceptance of the holding in Evans v.Gore, Mr. Justice Holmes cites that case with approval inGillespie v. Oklahoma, 1922, 257 U.S. 501, 42 S. Ct. 171, 172, 66 L. Ed. 338, saying "In cases where the principal is absolutely immune from interference an inquiry is allowed into the sources from which net income is derived and if a part of it comes from such a source the tax is pro tanto void. Pollock v. Farmers'Loan Trust Co., 157 U.S. 429, 15 S. Ct. 673, 39 L. Ed. 759;Id., 158 U.S. 601, 15 S. Ct. 912, 39 L. Ed. 1108; a rule lately illustrated by Evans v. Gore [1920], 253 U.S. 245, 40 S. Ct. 550, 64 L. Ed. 887, and applied in a case somewhat like the present by the Supreme Court of Hawaii, Oahu Ry. Land Co. v.Pratt, 14 Haw. 126." We take the Supreme Court to hold, as Mr. Justice Holmes wrote for the court — Mr. Justice Pitney, Mr. Justice Brandeis and Mr. Justice Clarke dissenting — that Evansv. Gore is authoritative, and that if judicial compensation is immune from diminution by taxation "an inquiry is allowed into the sources from which net income is derived and if a part of it comes from such a source the tax is pro tanto void," and the amount of the judge's salary would be deducted.
What then are the grounds upon which the contention rests that judicial salaries received by an incumbent during his occupancy of office may be taxed under a statute passed during his holding of the office? The reasons urged are (first) that the constitutional provision has *Page 129 no reference to a case like the one here considered; and (second) that the tax on net income is not a tax on salary, although it may form all or a part of the net income. It is submitted that these reasons are not sound, and are refuted in the decisions ofEvans v. Gore, supra, and of the other cases here cited. By way of emphasis, it may be said, in further reply to one of the grounds of the first reason that the contention that the liability of a member of the judiciary to pay taxes on his salary cannot possibly be made an attack on his independence does not bear examination. The answer to this assumption is to be found in its permitted consequences. The salary received by a judge is not the income of real or personal property, but the monetary reward paid by the State for his personal service in the discharge of his official duties, and no form of income offers less resistance to the lawful imposition of a tax. The admitted constitutional limitations, which, for the preservation of his independent position, prevent a diminution of a judge's salary during his incumbency by legislation which would reduce his compensation by a change in its amount or by the levy of a specific tax, would afford him no adequate guaranty if the General Assembly may impose an income tax upon his net income from which his salary may not be excluded. If under the guise of an income tax, the salary may be taxed as income, the present rate may be increased to any percentage the Legislature wills. The right of the sovereignty to tax is a power to consume and to destroy.
Nor will there be found any protection in the incidence of the tax upon other taxpayers. No method of taxation equals the income tax in the multiform classification of taxpayers indulged and in the variety of rates imposed according to the respective amounts of the incomes. The most numerous class embraces all those who are excluded from paying the tax because their income does not exceed the prescribed minimum. It is this non-taxed class which in a democracy dominates the fiscal policy of the nation, since its number makes for political predominance. If the constitutional requirement of equality and uniformity *Page 130 in the imposition of taxes upon real estate and tangible personal property, and the laying of duties or taxes with a political view for the good government and benefit of the community, permit a multiplication of classes for taxation according to wealth in income from those sources and from the exertions of its possessor, and the judiciary are within the purview of such legislation, then the principle, once allowed, may be carried to any extent and the judiciary will sit in subserviency to the will of the Legislature. The loss of independence will be measured not so much by the certainty of the present as by the apprehension of future antagonistic or retaliatory legislation. The income tax now sought to be imposed diminishes the salary by the entire amount of the tax, if the salary is the sole income of a judge. If the judge have other income, then his salary is diminished in part to the extent of its proportionate contribution to the payment of the tax. If this be law, the extent of this method of diminution in the future will depend wholly upon the exercise, from time to time, of legislative pleasure, and the peril which the Constitution sought to prevent will have been revived by judicial fiat.
The comment that the judges should pay the taxes of every man as their share in the cost of the institutions upon which their well-being, if not their life, depends, is an argumentum adhominem. If the Constitution of Maryland, which is the supreme law on this question, forbids the laying of the tax because it renders the judiciary dependent upon the legislative and executive branches of the government, it becomes the paramount and solemn obligation of the judiciary to defend and maintain unimpaired the constitutional mandate in its full vigor and effect against all subversive legislation. In such an emergency acquiesence is recreancy. The articles of the Constitution which limit the powers of the legislative and executive branches of the government, and those which establish safeguards for the protection and security of the citizen in his person and property, would quickly lose their value if there were no judiciary *Page 131 to enforce and preserve them without fear or favor or influence from any quarter. The exemption of the judicial compensation from reduction is not in any true sense a gratuity, privilege, or exemption. It is essentially and primarily compensation based upon valuable consideration. The covenant on the part of the government is a guaranty whose fulfilment is as much a part of the consideration agreed as is the money salary. The undertaking has its own particular value to the citizens in securing the independence of the judiciary in crises; and in the establishment of the compensation upon a permanent foundation, whereby judicial preferment may be prodently accepted by those who are qualified by talent, knowledge, integrity, and capacity, but are not possessed of such a private fortune as to make an assured salary an object of personal concern. On the other hand, the members of the judiciary relinquish their position at the bar, with all its professional emoluments, sever their connection with their clients, and dedicate themselves exclusively to the discharge of the onerous duties of their high office. So, it is irrefutable that the guaranty against a reduction of salary by the imposition of a tax is not an exemption from taxation in the sense of freedom from a burden or service to which others are liable. The exemption for a public purpose or a valid consideration is merely a nominal exemption, since the valid and full consideration or the public purpose promoted is received in the place of the tax.Theory and Practice of Taxation (1900), D.A. Wells, p. 541. On every form of property, except their salaries, the judges pay taxes, and this one exception is not founded in privilege, but is a covenant made pursuant to a wise public policy and upon a valid and valuable consideration. Whittington v. Polk, 1 H. J. 236, 249; Bradford v. Jones, 1 Md. 351, 371.
The conventions which framed the Constitution of the United States, and those which formulated the several constitutions of this State, understood that the provision against the diminution of compensation of public officials is a denial of those methods by which the legislative *Page 132 branch of the government might accomplish that purpose. The available methods are limited to statutes which will reduce the amount of compensation either by an act which will prescribe a less amount, or by an act which will lay a tax on the amount of the salary. Incomes had been taxed in the colonies before the adoption of the Federal Constitution, and so it was known that under the effect of a general income tax law the salary, even though paid to the official without reduction at its source, would generally be diminished by the effect of the tax. See Laws of 1777, ch. 22, secs. 5 and 6. Thus, by the provision against the diminution of official salaries and the adoption of the constitutions by the people, the people declared, by necessary implication, that the salaries would not be diminished by taxation.
The answer attempted to be made by the State is that the compensation ceases to be a salary and becomes income instantly on its receipt by the judge. Before its payment the salary was prospective income. When it was paid it was income acruing due as salary, and after it was received it lost none of its quality as income derived from the State in the form of salary. For the purpose of the income tax law, its nature with reference to its origin never changed from the moment of its receipt, no matter when or how it was used or kept, paid out or absorbed in a capital account. Whatever its liability to the imposition of an income tax became fixed as of the date of its accruing due and receipt. If the salary-income was not liable then to the payment of the tax pursuant to the terms of the statute, its status would not be affected by its amount either being called "gross income," if the judge had no other income; or being included in the sum of other items of income subject to the tax and called "gross income," if the judge had other sources of income, since no item of income may, for the purpose of taxation, form the whole or any part of the "gross income," unless such item of income is separately subject to the imposition of the tax. While the computation of the income tax to be paid is upon the "net income," which is the difference *Page 133 between the amount of the "gross income" and the sum of the deductions of the allowances permitted by the statute, the amount of no item of income which is not subject to the income tax may form any part of the amount of the "net income." Thus every item of income preserves its identity of amount and nature, for the purpose of determining whether or not it should be included or excluded in the amount upon which the income tax is to be paid. Acts 1937, Ex. Sess., ch. 11, secs. 216, 217, 222, 223, 227, 228, 231, 232, 248, 249; Gillespie v. Oklahoma, 257 U.S. 501, 505, 42 S. Ct. 171, 66 L. Ed. 338, 341.
The notion that as soon as salary-income is received it is irretrievably commingled with the general income of the owner for the purpose of taxation, so that the amount of the salary-income may not be separately considered as having been illegally included as part of the net income is, of course, untenable on principle and authority. In the form prepared by the State and found on this record, there are ten items or sub-divisions of income in the title "gross income," with six accompanying explanatory schedules for details. The heading of the first is "Salaries, Wages, Commission, Fees, etc. (State name and address of employer)". Under this item is given the amount of the judge's salary received from the State. Under the caption "Deductions," there are seven items or headings for separate deductions, with six schedules for explanation and details. Item 18 is entitled "Other Deductions Authorized by Law (Explain in Schedule G)." It is after this heading that the amount of the salary is set for deduction. Chapter 11, sec. 238. The statute exacts that the return to the comptroller by the person required shall state "especially the items of his entire income and the items which he claims as deductions and exemptions allowed by this sub-title."Ibid, secs. 232, 241, 242. The legislation provides for revisions and appeals and refunds for the correction and rectification of mistakes and errors in the enforcement of the law.
The particular circumstances of a judge admit of three typical situations. He may have no other source of income *Page 134 than his compensation as judge and have no allowances for deduction. Again, he may have, in addition to his salary, other income, and their sum, after all deductions, if any, make his net income large enough for the tax to apply. Or his losses allowable as deductions may be in excess of his salary alone or in combination with income from other sources. These instances do not comprise all, but are enough for illustration. In the first instance, the potential levy of the income tax upon his salary from the moment of its receipt continues to the day of accounting, and the amount of his salary would be his "gross income" and, since there are no deductions, the gross income would become his "net income" upon which would be calculated the income tax. As the gross and net incomes are identical, the potential levy upon the whole amount of his salary from its receipt would, on the final day of accounting, become consummate upon that identical amount, and his salary would be diminished by the full amount of the tax. On the second supposition, the potential levy of the income tax upon his salary from the time of its receipt, and upon his other income from the times of its receipt, would continue to the final day of accounting, and the sum of his salary and other income to that date would constitute his "gross income," and, if there were no deductions, the "gross income" would become his "net income," but should there be deductions allowed, the difference between their sum and the "gross income" would make his "net income." In either event, the tax would be based on the "net income," which, as it comprised proportionately reduced salary and other income, would diminish in the same proportion the salary received; and the potential levy would, on the final day of accounting, become consummate as to the salary in the same proportion. The third illustration is where the potential levy upon his income received would continue to the day of final accounting, when it would be found that the sum of his income of all sources, including his salary, and so forming the judge's "gross income," was eliminated by his losses allowed and other *Page 135 deductions, so that there would be no "net income" and, because of that, the potential levy upon his salary and income failed of consummation on the day of final accounting. In this instance, the salary could not be said to have been diminished, as no tax accrued due. The result in this third instance does not support the contention of the State that the tax is not laid on the compensation of the judge. It simply demonstrates that the potential levy or diminution of the salary from the time of its payment to the day of final accounting is released or abated as a result of conditions arising independently of the salary, but affecting the net income of the taxpayer adversely to the point of extinction. Instead of a diminution, the economic result to the judge is to increase his salary over the other judges to the extent of the income tax on the allowances made. If this be not the true effect, the possibility noted does not militate against the view that the act is void so far as it relates to the salaries of the judges. The test of the constitutionality of the statute with respect to the judiciary is not that it will necessarily diminish the salary of a judge, but that it may be done by its authority. Ulman v. Baltimore, 72 Md. 587, 596, 20 A. 141, 21 A. 709; Eubank v. Richmond, 226 U.S. 137, 144, 33 S. Ct. 76, 57 L. Ed. 156, 159. It has been shown not only that it may, but that it will. The record before the court supplies a mathematical demonstration of that fact and of the accuracy of the analysis attempted.
The State has cited decisions of the Supreme Court of the United States which, in our opinion, do not reverse or modifyEvans v. Gore, supra. The attention of the court has been directed to decisions of the British and Colonial courts which we do not discuss because of the fundamental differences in the conception of constitutional law in the United States and that which prevails in foreign jurisdictions. Dicey on the Law of theConstitution, 140, 141. For reference to these cases and annotations on the points involved, see Evans v. Gore,253 U.S. 245, 40 S. Ct. 550, 64 L. Ed. 887; Taylor v. Gehner, *Page 136 329 Mo. 511, 45 S.W. 2nd 59; Brush v. Commr., 300 U.S. 352, 57 S. Ct. 495, 81 L. Ed. 691; Dupont v. Green, 38 Del. 566, 195 A. 273.
The decisions of this tribunal adhere to the principle stated by the great Chief Justice Marshall in Marbury v. Madison, 1 Cranch 137, 176, 2 L. Ed. 60: "The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?" Thomas v. Owens, 4 Md. 189, 227, and supra. The judgment appealed from must be affirmed.
Judgment affirmed, with costs to the appellant.