# Petition for a Writ of Certiorari — Foley v. Comptroller of the Treasury > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0624%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for a Writ of Certiorari - **Published:** January 1, 1971 - **Citation:** 401 U.S. 977 ## Text COMPTROLLER OF THE TREASURY. STATE OF MARYLAND Respondents RP RDS apaR te logy ag, Ld e TABLE OF CONTENTS 2 2 2 4 Rt 2 denial of equal protection of the law for the Shate of Marylend to tax the net taxable income of the Petitioners at a higher rate than that of other chimems of the State of Maryland oo iw a EERE ea I a a F AUTHORITIES CITED Cases” . Baker ¥. Carr, 369 U.S. 186, 82 S.C. 691, 7 L.B4.24 RL ie Wahaes Witte eee 4 Gleustein v. Tax Comm... 176 Nd. 423, 428, 4 24 Mitiwecctiaac che tite ee etl $ Breshaber Union P. R. Co., 240 US. i, 36 S.C. EE RS5vr a cebkeeudokesccste, 1c. les. s City of Bewon v RR Seaman NO Us. 409, 76 SQX. 69841958)... ts s Harper v v. Vieginia State Board of Education, 383 US. 663,85 SX. 1079196). sissis Knowlton v. Moore, 178 U.S. 41, 20 SC. 767 (1900) Maes Miranda v. Arizona, 384 U.S. 486. 86 S.Ci. 1602. 6OLGAeneqims)..........istitsstiti*s ‘ 6 ; >. 3 Reynolds v. Gams, 377 US. $33, 88 BOX. 1962, 12 1 wd de STS Cot RRKRNSSRARSABAAS v0 4 Rayer Guano Co. v. Vaginas: 788 US. 412.4050. EO ree re ere ere $ Save of Wincor v. 5. C. Penny Co.. 311 US. 435, Eh ac SAREE hE KAR EE SAAS Ws 6 Srewert Dry Geed Co. v. — | S25, POUR. WBA CNSES) mw, 6 US, pe a Rema of Ste of times 18 F oe IS ha cc cncercucacesrs. 6 Valentine v Great Atlanta and Pacifx Tea Co. 29° US. 32, 57 SAX. 56, 81 EBS. 2207988) en 6 Weich v. Wenry, 305 U.S. 134,59 SX. 121 (7988). $ limited States Consetutron Fourte wth Amendment Noe as os es inset 2.3.5.6 Constitution of State of Maryland. Article 2 ( ( ‘( ‘(‘( ‘( .étéitié«; 5 Sere Stareres. Anmotated Code of Marytond 1.1969 Repl. Voi.) _ Aaticde 81, Section 28a) eT a a? Title 28,US. Code t257? cena eeeeseeees nie lg 2 WACIS NB... Dia ci Mada irs s I ok cnnnderddacudnuesses ees $ | CONTENTS OF APPENDIX Append A Appellant's Bref m the Court of Appea. —! Dt pee ee ee te , _ a . = - a . ° . . bd nm . . . a é « ° ba} ° 4 ox> . . ° ‘ * . . 2 > . ad * 2 . . . ‘ 2 « . . . 2 ° ~- we o nine Supreme Court of the United States a) Ne . “ : Ht. THOMAS FOLEY.AND MARY V. FOLEY = oe : Petitioners. v. P she judgment of the Court of Apperis of Maryland. entensd im the above entitled case on October 20. 1970. 7k Oo. 9 aes, @ 4a the appeal trom the final order of the Maryland Tax Court filed herein by the Appellants, says: _ The allegations contained in the Petition of appeal are denied. WHEREFORE, the Appelice prays that the assessment appealed from be affirmed. /s/ Francis B. Burch _ Attorney General ” /s/ Jon F. Oster Assistant Attorney General Attorneys for Appellee (Certificate of service omitted in printing} TRANSCRIPT OF PROCEEDINGS Upper Mariboro, Maryland November 19, 1969 THE DEPUTY CLERK: Law No. 41,585, H. Thomas Foley and Mary V. Foley, his wife, v. Comptroller of the Treasury. THE COURT: Very well, sir. you are the moving party. What do you have to say? MR. FOLEY: First, | would like to correct several errors that appear in the official transcript. THE COURT: | am otal I cannot correct any of those. 1 wasn't there. MR. FOLEY: These are errors of typing, et. cetera, which 1 am sure Mr. Oster might wish to agree to. it makes things — tead with sense rather than no sense at all. THE COURT: What page” MR. FOLEY: Page 4, Line 15. After the word “is” it should be. entered the words “in part.” | THE COURT: “The statement that accompanied our ~ return is in part as follows’? Is that correct? 3 f \ a | Seoeetlihdbetiiiieendtin bath eetatie tran Ba tae PPO ears cig 1Sa MR. OSTER: | have no objection, your Honor. MR. FOLEY: Page 5, Line 12. After the word “above” the words “two per cent of.” Line 16 of the same page the word is “redistricting” than On Page 6, Line 3. The word after “enumeration” is- “or” rather than “of.” | ¥ THE COURT: What line are you? {3} MR. FOLEY: Line 3, sir. THE COURT: It is “or” rather than “of.” On page 7, Line 21, the name of the case cited is Oursler v. Tawes. : ~ The stenographer inserted counsel’s name by mistake. THE COURT: Very well. You are appealing this. It is incumbent upon you to show what is wrong with what has seen done before. MR. FOLEY: Yes, sir. I would like to review the his- tory of the case that comes before the Court. We filed on August 9, 1968, an amendéd income tax return for the tax- able year 1967 claiming a partial refund of taxes paid on the weome of the applicants. The amount claimed was $439.00. The baiss of the claim was then and is now as follows: ; “ 2 of the Constitution of the State of Maryland states: “The Constitution of the United States and the laws of the United States, are and shall be the Supreme Law of the State; and the judges of this state, and al! the . of this State, are and shall be bound thereby; anything in the Constitution or Law of this State to the contrary not- __. Amendment Fourteen, Section | of the Constitution of — the United States, *. . ; nor deny any person within its _ (4) jurisidction the equal protection of the law.” We claim that a tax of $510 on the taxable income of H. Thomas Foley represents a rate of about five percent and that a tax of $307 on the taxable income of Mary V. Foley represents a rate of about 4.7 per cent. We claim, as ae 7 ° Se gee 16a therefore, that this represents denial of equal protection of the law in that the rate for persons with the low taxable income dre taxes a lower percentage, that is, two per cent. Therefore, we claim that all monies over and above two per cent of the - ; THE COURT: Who is that that pays two per cent? MR. FOLEY: Other persons. That is their basic rate for taxable income of $2,000 or less. THE COURT: What do you make? MR. FOLEY: Are you interested in taxable income or THE COURT: What they tax. “MR. FOLEY: Taxable income that year was $10,000. THE COURT: You say that averaged out to four per cent? MR. FOLEY: Five per cent. THE COURT: Your contention is that that is a violation of the Constitution because they charge people with incomes of less than $2,000 at the rate of two per cent? - MR. FOLEY: That is right. THE COURT... That is your argument” (5) MR. FOLEY: Yes, sv, THE COURT: Is that your case? MR. FOLEY: Yes, sir. THE COURT: Is it the same standard? _ Does it collect two per cent from everybody” MR. FOLEY: Your Honor, the case is based on the ides See Sean Sareea So gamen ant Ge Cate the State may do the same to all persons. THE COURT: In that class. © ; MR. FOLEY: That is what | am trying to bring before the Court. That is, whether this is reasonable classification. THE COURT: Can you show me where they have dis- criminated against you with anybody in your same class’ in other words, if you and | make $10,000, aré they charg: ing me less than they are charging you? MR. FOLEY: The income taxes are taxed on a yearly basis and the rates are set so that the—the rate should be the same for all persons. a 17a THE COURT: You mean even though a person only makes $2,000? : MR. FOLEY: I don’t mind them taxing me at two per cent if they tax him two per cent. | have no objection to that at all. To imerease my tax by taxing at a higher income and to MR. FOLEY: Which class is that? THE COURT: The $10,000 class. MR. FOLEY: Everybody is. classified different because sion of classes. Your class varies from time to time. My Claim is that the State should tax individuals without look- ing in regard to their total income. With property taxes no matter who owns the house the tax is the same. | am try- ing to make an analogy of income taxes to sales taxes or property taxes, which would be the same for all people. THE COURT: This'doesn't involve any tax on real prop- erty. : MR. FOLEY: I hope my income is real property. THE COURT: Your income? MR. FOLEY: If | get an income | have money. That is property. THE COURT: That is personal property. J MR. FOLEY: Personal property, | assume, is taxed (7) at the same rate for all persons. THE COURT: What | am trying to get from you-! haven't been successful so far—is that | think you agree with me that a man that makes $2,000 is taxed at two per- cent. MR. FOLEY: Yes. sir. ve 18a THE COURT: A man that makes $10,000 is taxed at four or five per cent. MR. FOLEY: Yes, sir. THE COURT: You say that is unconstitutional! per se? MR. FOLEY: Yes, sir. THE COURT: Even though it applies to all classes of those people within the income bracket of $2,000 and $10,000? MR. FOLEY: Yes, sir. THE COURT: Is that your case? MR. FOLEY: Yes, sir. THE COURT: Do you want to be heard on that? MR. OSTER: Your Honor, | think that everybody would be happier—including you and I—if we could establish a constitutional principle that any man making an income, irrespective of what that income is, would be taxed at the same rate. What the taxpayer here is contesting is the fact that we have established a graduated rate in Maryland. That is his real-objection. THE COURT: I understand that. (8] MR. OSTER: There just simply is no case that | know or or can find and the taxpayer has cited no case. MR. FOLEY: May | contiiwe with the brief or the appeal review that I filed? THE COURT: I read it before I came in here. MR. FOLEY: I would like to refer you to Item 6, where the opinion of the Tax Court stated, ‘“‘He cited no cases to support his contention that the Constitution of Maryiand, as well as the Fourteenth Amendment to the Federal Con- stitution, guaranteeing equal rights to all citizens, has been violated by the application of a greater tax rate in his case than that which is applied to persons with lower incomes. The main thrust of his argument was based on a one man, one vote analogy for which he likewise cited no authority to show its applicability here.” While these statements are true it should be noted that this question has not been brought before any Maryland court since the enactment of the Maryland graduated income tax. The applicants submit this is the first case to raise 19a this question in the State of Maryland and further submit the lack of “authority” and previous cases should not prejudice the court in determining whether or not a person's constitutional rights have been violated. THE COURT: Is there any further argument? MR. FOLEY: Just to say further that another point [$} I raised in the case is the fact that the cases cited by the Maryland Tax Court are very old cases and do not re- flect the views of the Supreme Court in the one man, one vote cases and all citizens before the State must be treated in an equal fashion. That was covered in Point 6(b) and 7 of my review. THE COURT: Very well, gentlemen, the matter comes before the Court on an appeal from the Maryland Tax Court by way of H. Thomas and Mary V. Foley with an amended - tax return which they filed in the State of Maryland August 9, 1968 in the amount of $439.00. The thrust of the appellants’ contention is that he and his wife are being dis- criminated against, as the Court understands it, in that he is being taxed on a higher rate than a person earning con- siderably lower than his rate of income. What he, in effect, is doing is contesting the graduated tax rate as established by the State of Maryland, and he says that it is unconsti- tutional inasmuch as it is discriminating against those in a class that earn greater sums than other classes that make lesser sums. We are bound to agree with the Maryland Tax Court where they «gay that it is reasonable for the State of Maryland. through its legislative,arm to make reasonable classification with regard to the instance of income tax. Obviously a man making $2,000 is a man in distress regard- less of what rate you charged him. MR. FOLEY: That would be on taxable income rather— THE COURT: If you don't mind, | would like to finish [10) my opinion. We consider that the man earning $2,000 should be taxed at a lower rate than a man making $10,000. We might ob- serve that those in the bracket of fifty to one hundred 20a thousand dollars pay a great deal higher rate than you do. ° That, of course, is not desirable, but | know of no substi- tute and | know of nothing in the Maryland Constitution or the Declaration of Rights or in the Federal Constitution that prohibits it. The one man-one vote rule as proved by the Supreme Court was restricted to a vote at public elec- tion and did not intend to set the standards for changing tax structures. The Supreme Court has lone held that any reasonable standard adopted by the State to raise necessary revenues to perform its function of government is consti- tutional so long as it is reasonable within the due process of law. For that reason the Court affirms the opinion of the Maryland Tax Court and dismisses the appeal. (Whéfeupon, proceedings in the above-entitiod matter were concluded.) . * * « 2a APPENDIX B In THE Court of Appeals of Maryland SEPTEMBER TERM, 1970 No, 30 4 H. THOMAS FOLEY ann MARY V., FOLEY, Appellants, v, COMPTROLLER OF THE TREASURY, Appellee, ? APPEAL FROM THE Circuit Count ror PRINCE GEORGE'S County (Roscoe H. Parker, Judge ) BRIEF OF APPELLEE STATEMENT OF THE CASE Appellee accepts Appellants’ Statement of the Case. QUESTION PRESENTED Does the progressive rate of the Maryland income tax violate the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States? STATEMENT OF FACTS Appellee accepts Appellants’ Statement of Facts. 22a ss ARGUMENT ‘Ps THE PROGRESSIVE RATE OF THE MARYLAND INCOME TAX AS IT APPLIES TO THE APPELLANTS DOES NOT IMPOSE UPON THEM A SUBSTANTIAL TAX BURDEN THAT IS BASED UPON DISCRIMINATION WHICH IS ARBITRARY AND CAPRICIOUS SO AS TO CONSTITUTE A VIOLATION OF THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT TO THE CONSTI. TUTION OF THE UNITED STATES. Article 81, Section 288(a) of the Annotated Code of Maryland (1969 Replacement Volume) imposes a progres- sive rate of tax on the taxable net income of individuals as follows; "There is hereby levied gad imposed for each pen dar year beginning after December 31, 1966, a tax on the taxable net income, as defined in § 280 (a) of every resident individual of this State and on the taxable net income, taxable in this State, of every individual -not » a resident of this State. Such tax shall be at the follow- ing rates: two percent (2) on the first $1,000.00 of taxable income, three percent (3':) on the second $1,000.00 of taxable income, four percent (4'') on the third $1,000.00 of taxable income, and five percent (5': ) of all faxable income in excess of $3,000.00." — The Appellants contend that this graduation of rates from two percent (2':) to five percent (5‘: ) constitutes unequal treatment and violates the Equa! Protection Clause of the Fourteenth Amendment to the Constitution of the United States. As grounds for this conténtion the Appel: lants cite the cases of Baker v. Carr, 369 U.S. 186 (1962), and Reynolds v. Sims, 377 U.S. 533 (1964). The Appellee has not found any recent cases sinseking the progressive rate feature of a State income tax. The progressive rate feature of the federal War Revenue Act of June 1898 was attacked on grounds of fundamental prin- ciples of equality and justice in Knowlton v. Moore, 178 or 23a U.S. 41 (1900). In rejecting the attack, Mr. ‘ustice White said for the Supreme Court: % “The review which’ we have made exhibits the fact that taxes imposed ‘with reference to the ability of the person upon whom the burden is placed to bear the same have been levied from the foundation of the government, So, also, some authoritative thinkers, and a number of economic writers, contend that a progres- sive tax is more just and equal than a proportional one. In the absence of constitutional limitation, the question whether it is or is not is legislative, and not judicial. The grave consequences which it is asserted must. arise in the future if the right to levy a progressive tax be recognized involves in its ultimate aspect the mere assertion that free and representative government is a failure, and that the grossest abuses of power are fore- shadowed unless the courts usurp a purely legislative function. If a case should ever arise, where an arbi- trary and confiscatory exaction is imposed bearing the guise of a progressive or any other form of tax, it will . be time enough to consider whether the judicial power can afford a remedy by applying inherent and funda- mental principles for the protection of the individual, even though there be.no express authority in the Con- stitution to do so, That the law which we have con- strued affords no ground for the contention that the tax imposed is arbitrary and confiscatory is obvious.” supra, pp. 109-110, In Breshaber v. Union P. R. Co., 240 U.S. 1 (1916) the progressive feature of the federal income tax provisions of the Tariff Act of October 3, 1913 was attacked as an arbi- trary abuse of power wanting in due process. In uphold- ing the progressive feature Mr. Justice White stated the attack disregarded “the fact that in the very early history of the government a progréssive tax was imposed by Con- gress, and that such authority was exerted in some, if not all, of the various income taxes enacted prior to 1894...” supra, p. 25. 3 Posten as J J 24u - Baker v. Carr, supra, involved an action under the Civil - Rights Act brought by certain Tennessee Appellants who alleged that the apportionment of the State legislature deprived them of a federal constitutional right to equal, protection of the law, A United States District Court was asked for a declaratory. judgment invalidating the 1901 statute on which the apportionment wus based, The Appel; lants’ argument was that although the Tennessee Consti- tution provided for a decennial apportionment of repre- sentatives and senators among the counties and districts according to their respective numbers, the legislature had failed to make such reapportionment since 1901, Because of population changes in the past sixty years the Appellants argued that their votes had been unconstitutionally de- based on the grounds that the Equal Protection Clause for- bids arbitrary and unreasonable apportionment of. legis- lative seats. The Supreme Court held that the federal courts had jurisdiction of the subject matter and that the debasement .of a citizen's vote because of malapportion- ment of a State legislature presented a justiciable contro- versy under the Equa) Protection Clause of the Fourteenth Amendment, The Supreme Court also determined that the Equal Protection Clause provides manageable standards by which lower courts eould decide upon the constitution- ality of a State apportionment plan. No constitutiorial standard, however, was set forth in the decision. Approximately two years later, in Reynolds v, Sims, 377 U.S. 533 (1964), and five companion cases decided the same day one of which was Maryland Comm. for Fair Representation v. Tewes, 377 U.S. 695 (1964), 228 Md. 412, the Supreme Court held that the application of the Equal Protection Clause to State legislative districting required that representation in both chambers of a State legislature be apportioned by population, 7 : | . Pad Poa 25a The Appellants in the instant case argue that the appor- tionment by population principle which they characterize as “one man — one vote principles to public elections”, by analogy affects a scheme of income taxation which uses progressive rates and that the use of such progressive rates violates the Equal Protection Clause of the Fourteenth Amendment. | js Baker v. Carr, supra and Reynolds vr. Sims, supra, have been frequently cited, however, the principles enumerated therein by the Supreme Court have been strictly construed and for the most part their application has been limited to - legislative reapportionment problems. Litigants have been unsuccessful when they attempted to apply the principles relating to legislative apportionment to other areas of law/ Thus, in Young v. State, 220 So. 2d 843 (Ala. 1969), the Supreme Court of Alabama, in a second degree: murder case, refused to draw an analogy between an Alabama law which permitted a jury to separate arid the situation in: volving the denial of equal franchise in Baker v. Carr, supra, and Reynolds v. Sims, supra; in Schweitzer v, Clerk © for City of Plymouth; 164 N.W. 2d 35 (Mich. 1969), the de- cisions of Baker v. Carr, supra, and Reynolds v. Sims, supra, were rejected by the Supreme Court of Michigan as sup- port for the argument that the equal protection clause was violated by a city charter provision requiring property ownership to qualify for public office; and in Cor v. Katz, 204 N.Y. Supp’ 2d 544 (1968), the Court of Appeals of New York held that “the one man — one vote” principle was not applicable to and did not invalidate statutes providing for allocation and election of judges of a City-wide Civil Court of the City of New York, because the principle was not intended to regulate the election of judges whose func- tions are solely judicial. . ? ? ” a | 260 In the famous case of Welch v, Henry, 305 U.S, 134 (1938) involving a broad attack on the income tax law of the | State of Wisconsin which included a retroactive graduated - tax on corporate dividends, Justice Stone stated for the Supreme Court at page 145 that: ; "it is @ commonplace that the equal protection clause does not require a state to maintain rigid rules of equal taxation, to resort to close distinctions, or to maintain - & precise scientific uniformity, Possible differences in. tax burdens, not shown to be substantial, or which are based on discrimination not shown to be arbitrary or capricious, do not fall within the constitutional prohibition,” | : 7 aoe CONCLUSION It is respectfully submitted that the statement quoted above by the Supreme Court in Welch v, Henry, supra, remains the standard by which:a State income tax should be measured against the Equal Protection Clause. The Appeliants have failed to show that their tax burden is — substantial nor that it is based upon a discrimination which is arbitrary or capricious and, therefore, the Appellee re- quests that the judgment of the Circuit Court ‘or Prince George's County be affirmed, Respectfully submitted, Francis B, Burcu, | _ Attorney General, se: Jon F, Oster, Assistant Attorney General, For Appellee. , 2h APPENDIX C _IN THE COURT OF APPEALS OF MARYLAND ° No. 30 SEPTEMBER TERM, 1970 H. THOMAS FOLEY and MARY V. FOLEY ; o Mt COMPTROLLER OF THE TREASURY | See. eee Hammond, C.J. Barnes McWilliams Finan Singley Smith Digges, JJ. Opinion by Finan, J. Filed: October 20, 1970 The appellants, as income taxpayers for the year 1967, claim a partial refund from the appellee (Comptroller of the Treasury) for taxes paid, on the premise that the progres- sive rate of the Maryland income tax provided by Code (1969 Repl, Vol.), Art. 81, § 288(a), violates the equal pro- tection clause of the Fourteenth Amendment of the Con- stitution of the United States. The lower court affirmed the holding of the Maryland Tax Court which had found no merit to the appellants’ challenge. This Court, likewise, finding no validity to the appellants’ contentions affirms the lower court. ory Pe e AURORE MET “yop 28a Fhe appellants advance the novel theory that by wnulogy the “one man-—one vote” doctrine, promulgated by the United Stutes Supreme Court in the state legisluture reap- portionment cases of Baker v. Carr, 369 U.S. 186, B2 S.Ct. 691 (1962), and Reynolds v. Sims, 377 U.S, 533, 84 S.Ct. 1362 (1964), should be extended to embrace not only the principle of “one man- one vote,” but also One tax rate, The Statute in question provides: "There is hereby levied und imposed for each calendar year beginning ufter December 31, 1966, # tax on the taxable net income, as defined in § 280(a) of every resident individual of this State and on the taxable net income, taxable in this State, of every individual not 4 resident of this State, Such tax shall be at the following rates: two percent (2%) on the first $1,000.00 of taxable income, three percent (3%) on the second $1,000.00 of taxable : income, four percent (4%) on the third $1,000.00 of taxable income, and five percent (5%) of all tux- able income in excess of $3,000.00" Maryland Code. (1969 Repl, Vol.), Art, 81, # 288(y), SS The graduation of rates from two percent (2% )No five (5%) is the alleged inequity about which the appellants complain, stating: "This variation in tax rate in of itself represents an inequality in that each taxpayer is not taxed in a similar manner, ***,” The appellants also emphasize that this is the first time that this issue has been presented to this Court and that the precedents upon which the State relies are all decisions prior to the “one man—one vote” decision of Baker v. Carr, supra. We might be disturbed by this argument if we thought there was much dispute over the validity of a grad- uated income tax when measured uguinst the Fourteenth Amendment, or that Baker v. Carr presented any true anal- ogy. Actually, the constitutionality of a gruduated income tax, insofar as the Fourteenth Amendment is concerned, is now universally accepted as hornbook law und we fail to sectors | | ier. 29a - ee find where the principle of Baker v. Carr has any applica- , tion to the instant case under any rationale. The validity of a progressive or graduated income tax, Measured against the equal protection clause of the Four- th Amendment, was challenged and upheld as early as in the case of Knowlton v. Moore, 178 U.> 41, 20 S.Ct, 747 (1900), in which the War Revenue Act of June 1898 was the subject of attack. In upholding the Act, Mr. Justice White said for the Supreme Court: “The review which we have made exhibits the fact that taxes imposed with reference to the ability of the person upon whom the burden is placed to bear the same have been levied from the foundation of the government. So, also, some authoritative thinkers, and a number of economic writers, con- tend that a progressive tax is more just and equal than 4 proportional one. In the absence of consti- tutional limitation, the question whether it is or is not is legislative and not judicial. The grave con- sequences which it is asserted. must arise in the future if the right to levy a progressive tax be recog- nized involves in its ultimate aspect the mere asser- tion that free and representative government 1s a failure, and that the grossest abuses of power are foreshadowed unless the courts usurp a purely legis- lative function. Ifa case should ever arise, where an arbitrary and confiscatory exaction is imposed bearing the guise of a progressive or any other form of tax, jt will be time enough to consider whether the judicial power can afford a remedy by applying inherent and fundamental principles for the protec- tion of the individual, even though there be no express authority in the Constitution to do so. That the law which we have construed affords no ground - for the contention that the tax imposed is arbitrary and confiscatory, is obvious.” 178 U.S. at 109-1 10, In the cuse of Oursler v. Tawes, 178 Md. 471, 13 A.2d 763 (1940), this Court had before it the question of the validity of certain aspects of the Maryland Income Tax Law 30a of 1939, Ch. 277, § 12 of the Acts of 1939. There was no issue regarding a graduated income tax, as there was none at that time; however, several other challenges to the con- stitutionality of the law were made. One involved the dif- ference in the net income tax on resident individuals of this State and on the net income taxable in this State of indivi- dual non-residents. There were also issues concerning whether the Act required a taxpayer having an investment income to actually pay a tax in part on gross income. The issues in that case are not of moment now, but what is pertinent is the following language of this Court regarding the right of the Legislature to establish reasonable classific- ations for the purpose of taxation: “To whatever classification the species of income tax may belong, it is controlled by the basic princi- ples which govern either excise or property taxation. The first of these is that, independently of consti- tutional provisions, and subject only to the limit- ations placed upon it by. the Federal Constitution, the power of taxation is inherent in a sovereign State, because the right to tax underlies its own Constitution, and is-not granted by it. Stated dif- ferently, the right may be regulated and limited by constitutional mandates, but it exists without express authority in the fundamental law as a neces- sary attribute of sovereignty. * * * “First of all, it may ‘be observed that the Federal Constitution has not undertaken to lay down any hard and fast rule with respect to due process of law, the equal protection of the laws, or as to privi- leges and immunities; and _as tersely summarized in Board of Commnrs. etc. v. Johnson County, 173 Ind. 76, 89 N.E. 590, 593; ****Nor does the equal protection clause prevent the states from adjusting their systems of taxation in all proper and reason- able ways. *** If all persons who are in like circum- stances, or affected alike, are treated under the laws the same, there is no deprivation of equal protection 3la of the law. *** The classification itself must be based upon natural réasons, upon reasons which naturally inhere in the subject matter, upon real difference existing between the classes, and so as to produce: no distinction between members of the same class.’ ’’ at 482-483 A case containing language of similar import to that found in Oursler is Blaustein v. Tax Commn., 176 Md. 423, 428, 4 A.2d 861 (1939), wherein the United States Supreme Court opinion in Royster Guano Co. y. Virginia, 253 U.S. 412, 40 S.Ct. 560 (1920), is quoted at length, as authority for the proposition that the Fourteenth Amendment does not prevent the states from resorting to reasonable classific- ° ation for the purpose of taxation. See also Breshaber vy. Union PR. Co., 240 U.S. 1, 36 S.Ct. 236 (1916). A case giving strong support to the validity of a pro- gressive income tax enacted by a state is that of Welch »: Henry, 305 U.S. 134, 59 S.Ct. 121 (1938). At issue was the constitutionality of the income tax law of the State of Wisconsin, which included a retroactive graduated tax on corporate dividends. The United States Supreme Court speaking through Mr. Justice Stone stated: “* * * It is a commonplace that the equal pro- tection clause does not require a State to main- tain rigid rules of equal taxation, to resort to close distinctions, or to maintain a precise scientific uni- formity. Possible differences in tax burdens, not shown to be substantial, or which are based on dis- crimination not shown to be arbitrary or capricious, do not fall within the constitutional prohibition.” 305 U.S. 134 at 145. | Interesting treaties which shed further light on the “Equal Protection Limits Upon Taxation” are Commentaries on the Constitution of the United States, by Chester James Antieau (Dennis & Co. Inc. Buffalo, N.Y. 1960), beginning at p. 107 and Constitutional Uniformity and Equality in State Taxation, by Wade J. Newhouse, Jr. (Michigan Legal Studies 1959), University of Michigan, Ann Arbor, begin- ee a ee 324 , ning at p. 606. In this latter work the author cites numer- * OUS Cases in note 22 p. 607 in support of the constitution- ality of a graduated income tax, including Shaffer v. Carter, 252 U.S. 37, 40 S.Ct. 221 (1920), and Magoun vy. Ill: Trust & Savings Bank, 170 U.S. 283, 18 S.Ct. 594 (1898). The gist of the reasoning of the cases and authorities is that the imposition of a graduated income tax does not per se constitute arbitrary or discriminatory classification of taxpayers. In fact, as was stated by the Court in Knowl- ton, “* * * a number of economic writers, contend that a progressive tax is more just and equal than a proportional one. * * *.” The question of the means of taxation to be ~ employed is a legislative function and, as long as that means is not discriminatory or arbitrary in its classifications of taxpayers, the courts may not reject it. We conclude that the legality of a graduated.or progres- sive income tax, such as we have in this State, insofar as the equal protection clause of the Fourteenth Amendment of the United States Constitution is concerned, requiescit in pace and should not be disturbed. JUDGMENT AFFIRMED, APPEL- LANTS TO PAY COSTS. aietieeshatiames te tadiaiies Lodo ea 33a ~ APPENDIX D U.S. Constitution, Amendment XIV “Section 1. . . nor shall any State... deny to any person within its jurisdiction the equal protection of the laws.” APPENDIX E Annotated Code of Maryland (1969 Repl. Vol.): Article 81, Section 288(a) “There is hereby levied and imposed for each cal- erfdar year beginning after December 31, 1966, a tax on the taxable net income, as defined in § 280 (a) of every resident individual of this State and on the taxable net income, taxable in this State, of every individual not a resident of this State. Such ‘tax shall be at the following rates: two percent (2) on the first $1,000.00 of taxable income, three per- cent (3%) on the second $1,000.00 of taxable income, four percent (4%) on the third $1,000.00 of taxable income, and five percent (5%) of all tax- abie income in excess of $3,000.00.” ° --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0624%3A1. Public record. Not legal advice.