MILES, FORMER COLLECTOR,

v.

GRAHAM

The defendant in error is a judge of the Court of Claims. He assumed the duties of that office September 1, 1919, when the-statute (Act Feb. 25, 1919, c. 29, 40 Stat. 1156, 1157) declared that judges of that court should be entitled to receive “ an annual salary of $7,500, payable monthly from the Treasury.” He was required to pay . to plaintiff in error, Collector of Internal Revfenue, the income taxes for 1919 and 1920 prescribed by “An Act to provide revenue, and for. other' purposes,” a-pprovfed-February 24, 1919, [the Revenue Act of 1918] c. 18, 40 Stat. 1057. In computing these his judicial salary was treated as part of his “gross income.”

“ Sec. 213. That for the purposes of this.title (except as otherwise provided in section 233)' the term ‘gross income ’—

“ (a) Includes 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 courts of the United States, and all other officers -and employees, whether elected or appointed, of the United States, Alaska, Hawaii, or any political subdivision thereof, or the District of Columbia, the compensation received as such), oí what-fever kmd 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 of or interest in such property; also from interest, rent, dividends, securities, or the transaction of any business carried on for gain or profit, or gains or profits and income derived from any source whatever.....”

After payment and the necessary preliminary steps he instituted this proceeding to recover, upon the ground that the exactions on account of his salary were without authority of law. Judgment went for him in the trial court. It was there said—

“ Unless he was taxable under the [Revenue] Act of 1918 [approved Feb. 24, 1919] he was not taxable at all. If he is taxable under that statute, he is so by virtue of ,a-clause which applies to all the federal judges, irrespective of the time they came upon the bench. That clause as written has been held invalid. . . . When the clause which has been declared invalid is out of the Act, no other imposes the tax. What the court here is asked to do is to rewrite the pertinent portion of the statute in question so that it will read as did the provisions of the Acts of 1913 and 1916 relative to this general subject. But that would be for the court to do what Congress expressly decided not to do. With its eyes wide open to the possible consequences, it made up its mind to seek uniformity by imposing-the tax upon all judges. Whether it would or would not have been willing to tax the minority, if the majority were immune, nobody knows, perhaps not even the members of that Congress itself, for upon'that question they never were called upon to make up their minds.”

Plaintiff in error now insists that, although the challenged provision of the Act of February 24, 1919, has been adjudged invalid as to all judges who took office prior to that date, it is obligatory upon those thereafter appointed.

Sec. 1, Art. Ill of the Constitution provides—

“ The judicial power of the United States shall be vested in one Supreme-Court, and in such inferior courts as the Congress may from time to time ordain and establish, The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall,- at stated times, receive for their services a. compensation, which shall not be diminished during their continuance in office.”

Evans v. Gore, 253 U. S. 245, arose out of the claim that Judge Evans-was liable for the tax upon his salary as prescribed by the-Act now under consideration, although appointed before its enactment. We there gave much consideration to the purpose, history and meaning of the. above-quoted section of the Constitution, and, among other things, said—

“ These considerations make it very plain, as we think, that the primary purpose of the prohibition against diminution'was .not to benefits the judges, but, like the clause in respect of tenure, to attract good and competent men to the bench and to promote that independence of action and judgment which is essential to the maintenance of the guaranties, limitátions and pervading principles of. the Constitution and to the administration of justice without respect to persons and with equal concern for the poor and the rich. Such being its purpose, it is to-be construed”, not as' a private grant, but-as a limitation imposed in the public interest; in other words, not restrictively, but in accord with its spirit and' the principle on .which it proceeds.”

“ Obviously, diminution may be effected in more ways than one.' Some may be direct and others 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 has been promised by law for his services must.be regarded as within'the prohibition. ...” ,

“ The prohibition is general, contains no excepting words and appears to be directed against all diminution,. .whether for one purpose or another; and the reasons for its adoption, as publicly assigned at the time and commonly accepted ever since, make with impelling force for. 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. . . .

“For the common good — to render him [the judge], in the words of John Marshall, ‘perfectly and completely independent, with nothing to influence or control him but God and his conscience — his epmpensation is protected from diminution in any form, whether by a tax or otherwise, and is assured to him in its entirety for his support. ...”

“Here the Constitution expressly forbids diminution of the judge’s compensation, meaning, as we have shown, diminution by taxation as well as otherwise. The taxing Act directs that the compensation — the full sum, with no deduction for expenses — be-included in computing the net income, on which the tax is laid. If the compensation be the only income, the tax falls ;o'n it alone; and, if there be other income, the inclusion of the compensation augments the tax accordingly. In either event the -compensation suffers a.diminution to the extent that it is taxed.

“ We conclude that the tax was imposed contrary to the constitutional prohibition and so must be adjudged invalid.”

Does the circumstance that defendant in error’s appointment came after the taxing Act require a different view concerning his right to exemption?' The answer depends upon the import of the word “compensation” in the constitutional provision.

The words and history of the,' clause indicate that the purpose was to impose upon Congress the duty definitely to .declare what sum shall be received by each judge out of the public funds and the times for payment. -When this duty has been complied with the amount specified becomes the compensation which is protected. against diminution during his continuance in office.

On September 1, 1919, the applicable statute declared: “The Chief Justice [of the Court of Claims] shall be entitled to receive an annual salary of $8,000, and each of -the other judges an annual salary of $7,500, payable monthly.” The compensation fixed by law when defendant in error assumed his official dirties was $7,500 per annum, and to exact a tax in respect of this would diminish it within the plain rule of Evans v. Gore.

The taxing Act became a law prior to the statute prescribing salaries for judges of the Court of Claims, but if the dates were reversed it would be impossible to construe the former as an amendment which reduced salaries by the amount of the tax imposed. No judge is required to pay a definite-percentage of his salary, but all are commanded to return, as a part of “ gross income,” “ the compensation received as such” from the United States. From the “ gross income ” various deductions and credits are allowed, as for interest paid, contributions or gifts made, personal exemptions varying with family relations, etc., and upon the net result assessment is made. The plain purpose was to require all judges to return their compensation as an item of “ gross income,” and to tax this as other salaries. This is forbidden by the Constitution.

The power of Congress definitely to fix the compensation to be received at stated intervals by judges thereafter, appointed is clear. It is equally clear, we think, that there is no power to tax a judge of a court of the United States on account of the salary prescribed for him by law.

The judgment of the court below is

Affirmed.

Mr. Justice Brandéis dissents.