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THE REAL ISSUE: WHO PAYS THE TAXES HOUSTON ‘ There is perhaps no comment more exasperating to me than “I really can’t tell the difference between Democrats and Republicans,” unless it might be, “I vote for the man and not the party.” Both probably have their origin, in Texas at least, within that same family tree of communication media which as long as I can remember have urged the election of a Republican president in leap year Novembers while plugging for “conservative Democrats in Texas every other summer. It is just this encouragement of party irresponsibility which has led to illegitimacy in the family tree of Texas politics. All but the most casual observers recognize the existence of some differences in political parties and political ideologies, but the newspapers have been woefully remiss \(and perhaps by basic distinction existing in American politics, the difference between liberalism and conservatism. In its August 3, 1958, issue, the Houston Chronicle editorialized on the subject, using such phrases as “more and more power in the hands of the federal government” and “high level of taxing and spending for such purposes as foreign aid, domestic welfare programs . . .” to describe liberals, and “preserving states’ rights,” “opposing giveaway welfare and subsidy programs,” and “keeping government close to the people . . .” to designate conservatives. Somebody ought to invite the editors of the Chronicle to take another look at the picture. They and their colleagues would find at the bottom of the distinction the sole question of who pays the taxes. That “more and more power in the hands of the federal government” really means, “We don’t want federal aid to education because the federal government has demonstrated a philosophy of taxing in accord with ability to pay. We’re for supporting education, all right, but we want state legislators to do it because they protect our advertisers by upping the sales taxes or -i those least able to pay, the consumers who spend almost all they earn. Of ‘course, that goes for such things as county hospitals. While we think such things are socialistic in principle, if we’re going to have them, let’s . finance them with a big bond issue so more of our advertisers can make a profit. Besides, we all know that property evaluations along Main Street are not nearly as high proportionally as those out in the residential areas. At any rate, it’s better than a federal health insurance program, which would be paid for out of income tax revenues.” WITHOUT ATTEMPT-ING to carry this semi-ridiculous paraphrase any further, the point can be strengthened by a glimpse back at the 56th Texas -legislature, where in each of the four sessions the paramount issue was taxation. The liberals’ were plugging for a program based upon ability to pay, and. from the day the first howl of anguish went up to save the hallowed banking institution, it was apparent what the conservatives were plugging for. The State of Texas still cannot extract its own money from the banks of this state. The final law contained a few sops for About the Author AUSTIN Bill Kilgarlin, this week’s guest columnist, is a member of the Texas House of .Representatives from Houston. The state president of the Young Democratic Clubs of Texas, Kilgarlin in the 1959 legislature worked for the establishment of a Texas public utilities regulatory commission and a 50cent minimum wage in Texas \(agriwere defeated. Sen. Ralph Yarborough called Kilgarlin “the outstanding orator in the Texas House” last year. Kilgarlin was graduated from the University of Houston in 1954. the liberals but in the main general= ized a little more our non-general sales taxes. The big issue was not spending. There was no talk about cutting out “all this wasie.” Neither conservatives nor liberals were thinking about the Chronicle’s “high level of spending” thesis when they went to bat for the state hospitals and colleges back home of those wonderful farm-tomarket roads. While in truth most of the liberals were disappointed that the appropriations bill wa not larger, particula i rly for places like Gatesville and state hospitals and special schools, they, too, were swept along in the tide of thinking that asked not how much, but who pays. MARSHALL This writing may of fend those who do not agree with the Jef fersonian precept that judges ‘are human beings, best selected by popular vote of an electorate that has been properly informed of the background and philosophy of the judicial candidate. Scarcely any branch of government has a more profound influence on the happiness and well-being of our citizens that the judiciary ; yet the voter most often buys a pig in a poke when he selects a judge. He is subjected to the snob ‘appeal of those who would sanctify the office, and suggest that lawyers alone are competent to evaluate the candidates; that opinions of judges are sacrosanct, and not subject to examination on the hustings. Thi -S school of thought also leans on the power of intimidation and fear, once a judge is serving on the bench and runs for reelection. The cynical murmur that the political support of a losing candidate may bring judicial reprisals to the lawyer whose choice is defeated. The writer is subject to persuasion by neither of these arguments. He feels that judicial opinions are those of twolegged mortal men, contrived as other actions of men, and not handed down from a supernatural power on high. As such, they ‘are the proper subject of discussion in the political field ; nor should we fear that a judicial candidate would be so reprehensible as to punish one who appears before him by reason of past opposition to him at the polls. With this in mind, I would like to examine some of the decisions of the Texas Supreme Court during the ten years Judge Robert Calvert has held office on it. I seek to take nothing from his early reputation as a liberal, nor from some of his opinions which show a liberal outlook, but I do propose to show that his thinking on the Court has tended to carry him away from a proper admiration for the right of trial by jury, and the conception that those broken in body ‘are entitled to a protection under the law equal to that afforded those who have suffered other types of injury. \(No case in which the writer was involved will be discussed, other than one in which a dissent ‘against his contentions IN HIS EARLY DAYS on the bench, Judge Calvert’s liberal background showed through his opinions. He seems to have favored leaving fact questions to a jury, a simplification of the process of coming to a jury verdict, and sustaining it on review. In 1952 he suggested a brake on the practice of asking a jury hundreds of questions to procure a verdict on “special issues.” In 1953 he insisted that the question of whether a workman brought about his own injuries when he leaned over an open elevator shaft to shout down for more tools was for the jury to decide. PRIOR TO 1954, a jury decided a carpenter named Patterson should be paid for injuries he received in falling from a ladder. It said that he was hurt on account of the care The resolution passed by the Texas legislature calling for the repeal of the 16th Amendment got scant notice, yet, it was one of the most basic issues on which liberals and conservatives drew the line. I do not know what substitute the conservatives have to offer for the income tax, but I can visualize such things as a’ national sales tax in the offing. I REALIZE that all differences between these two ideologies cannot be categorized under tax philosophy, and yet the battle over who pays the taxes is certainly the central issue in controversy. And often if the issue is not taxes it is a related fiscal matter such as high interest rates, tax lessness of Robert E. McKee, a general contractor who had caused a floor to be finished and slicked up at the place where Patterson was required to do overhead carpenter work from a ladder that was grounded on the slick floor. Judge. Calvert wrote the opinion which refused to let Patterson have the damages that the jury, the trial judge, and the Waco Court of Civil Appeals had found he was entitled to He did this by a callous process of trading on the economic necessities that required Patterson to do the dangerous work, or quit his job.’ The Court admitted that McKee had carelessly caused the carpenter’s injuries, but,but, ‘said the Court, ‘the negligence was so great, open, and obvious as that the injured man could not in law shut his eyes to it. Two members of the Court wanted to leave it to a jury as to whether Patterson had no other alternative than to do the work on the slick floor, as indeed he did not if he wanted to eat from his salary, but Judge Calvert refused to recognize these facts of economic life, and in effect said to all contractors, landowners, storekeepers, and persons of every character who invite others to do things for their benefit : “If you want immunity for your wrongs before the Supreme Court, be careless and wanton in so outrageous a fashion as that it can be said that your conduct was so obviously dangerous that your victims should have known of it. Then this court will protect you from paying damages awarded by jury verdicts, even if the one you hurt acted under economic compulsion to do a job for your benefit.” T IS NOT THAT the Judge did not have precedent for his cruel conclusion ; but there exists precedent for hanging, if not burning, witches, and for the reinstitution of the Spanish Inquisition. It is that the precedent cannot stand the test of reason, logic, or policy. A jury should be allowed to say whether an injured person has acted voluntarily in undertaking work of a dangeitus character, when the arrangements for it have been made by his superiors, and others not subject to his control. Is the person who .carelessly puts a man in obvious danger to be rewarded by placing the burden of a resulting injury on the victim instead of the careless wrongdoer ? Judge Calvert says “yes” ; if the defendant is slightly negligent in failing to inspect and warn of a concealed danger, the victim may at least have a jury trial ; but if the wrongdoer acts in blatant and notorious disregard of the safety of others, he owes them no duty. Perhaps by now some are wondering where the Judge found precedent for this bizarre result. Well, he cited an English case decided 70 years ago. From it, Judge Calvert quoted ‘with approval bewigged and berobed comments of Lord Bramwell : “It is said that to hold the plaintiff is not to recover is to hold’ that a master may carry on his work in a dangerous way and damage his servant. I do so hold, write-offs for a favored few, awarding contracts and then subsidizing private power companies where public power would have been better. It is no secret that big business favors the Republicans because Republicans consistently help out big business where the latter are most concerned, the pocketbook. So when I am asked about dif ferences between liberals and conservatives, Republicans and Democrats,, I no longer attempt n detailed analysis. I just say the question is “Who’s go ing to pay the taxes ?” BILL KILGARLIN if the servant is foolish enough to agree to it.” And a pox upon the foul fellow for wasting his Ludship’s time by going out and getting himself hurt ! There was further discussion in the quoted case to show that the principle comes from the maxim “Volenti non fit injuria,” which in turn derives from the Roman civil law of “volens,” under which a free citizen might in concert with ‘another permit him-self to be sold as a slave, in order that he could share in the price. At least, the Roman received some reward for losing his citizenship, but the modern . worker may not for being needlessly injured on account of outrageous and notorious carelessness or wantonness. THE LATIN PHRASE, as sometimes happens, was employed to lend dignity to a foolish conception, the one advanced 140 years ago -in an effort to rejuvenate feudalism in England, and which takes us to the problems of’ the owner of the 50 or 60 acres that made up Chrishall Wood, as it existed in the County of Essex in the year 1820. Along a part of the wood there was “a right of way for all the King’s subjects on foot.” Within the wood the owner had placed nine or ten spring guns, ingenious devices of the , crotchety landowners of the time, so arranged as that the unwary traveler who trod on a concealed wire or board would be struck by a load of shot from the gun. “The boundah had no business in the Baron’s wood.” One who entered Chrishall Wood for the innocent purpose of gathering nuts was injured by the charge from one of the spring guns. Not only was the nut-gatherer denied compensation, because the landowner had given notice of the existence of the concealed guns, and the victim knew there were guns somewhere on the land, but the actions of the landowner were condoned in these words of Best, J.: “Much money is expended in the protection of game, and it would be hard, if, in ote night, when the keepers are absent, a gang of poachers might destroy what has been kept at so much cost. If you do not allow men of landed estates to preserve their game, you will not prevail on them to reside in the country. Their poor neighbors will thus lose their protection and kind offices ; and the government, the support that it derives from ‘an independent, enlightened, and unpaid magistry.” Tally ho ! THE COURT, in short, was presaging the philosophy of our later clay courts anent the protection of industry. Someone had to bear the burden of injury. If the landowner, he might be unable to give his kind offices to his poor neighbors \(such as now, industrywell what ? Does it need the protection Judge Calvert has thrown about it by reaching back for precedent to the action of a Roman selling himself into slavery? The Patterson opinion says “Yes,” and the working man who has been duped into supporting its author at the polls should take another long look. FRANKLIN JONES CA L VER T DECISIONS CRITICIZED