Page:Popular Science Monthly Volume 51.djvu/490

476 and of universal acceptance. But what is their relevancy to the case in hand? They relate to grants taking effect in future—to grants taking effect from the date or delivery of the deed, or from the probate of the devise, and carrying all after-accruing rents as a matter of course. But what this case is concerned with is rents that have not only become due, but have actually been received by the landlord. Does any one pretend that rents thus received would pass by a grant of the estate that has yielded them? Of course not, and why? Because, by falling due and being collected, they have become severed from the realty, and have become personal property—money in the landlord's pocket, like any other money. Nothing is gained, however, by belittling or evading an argument, and I have no intention of doing either. The strength of the plaintiff's claim is in the proposition that the value of land is in its use; that rents are the pecuniary equivalent of the use, and that, therefore, to tax rents is in substance and effect to tax the land itself. This is what may be called a fetching proposition. How much truth is there in it, and how much of applicability to the present case? There is this much of truth in it: that a tax upon rents to become due—to accrue in the future—may well be deemed a tax on the estate itself. Such accruing rents are like growing crops, an inseparable part of the land, and whatever is a charge upon them is necessarily a charge upon the land. But the proposition stated has no application whatever to the present case, because the tax it has to do with is a tax in respect to rents already due and collected, and in all probability either spent or transformed into other tangible property. How can a tax in respect to such rents be said to be a tax upon the real estate producing them? When they become due and are paid, just as when crops are harvested; when either process is complete, a new and distinct item of property comes into existence, and the landlord's property realizes a corresponding accretion."

In rejoinder the counsel for the appellants maintained that under the income-tax enactment in question (i.e., of August 28, 1894) a tax was imposed upon income "derived not merely from business, but also expressly upon that derived from property, and therefore directly upon the property producing the income, whether real or personal." Notably is this the case with a tax upon "rents" and the "growth and produce of land." It taxes every element of value of the land which the owner can realize from third parties. It must be clear that a tax upon what gives the land value is a tax upon the land itself. In the words of Hamilton, "What in fact is property but a fiction without the beneficial use of it?" In many cases, indeed, the income or annuity is the property itself. As one of the justices said in the