constitutional question is raised, if the record presents some other and clear ground upon which the court may rest its judgment, and thereby render the constitutional question immaterial to the case, the court will adopt that course, and the question of constitutional power will be left for consideration until a case arises which cannot be disposed of without considering it, and when, consequently, a decision upon such question will be unavoidable."

It is to be noted that since the sixteenth amendment was ratified in 1913 no act of Congress has undertaken to tax incomes from bonds and other securities issued by states, cities, and other subdivisions of states; and, if the 1919 act of Congress undertook to tax salaries and wages paid by states and their subdivisions (as some contend), the Treasury Department has refused to take that view and has not attempted to collect such taxes. Hence no case has arisen before the Supreme Court involving the validity of such provisions of any act of Congress.

We may be sure that the learned justices of the Supreme Court would be among the first to disclaim any statement or implication that they had undertaken to decide any question of the constitutionality of a proposed act of Congress in advance of the passage of such act. Their jurisdiction extends only to cases, and to express an opinion in advance upon a bill in Congress is neither their function nor custom. As Professor Thayer and others have pointed out in their writings, the Supreme Court in 1793 declined to advise President Washington as to questions arising under treaties with France, deeming it "improper to enter the field of politics by declaring their opinion on questions not growing out of the case before them."

The case of Brushaber v. Union Pacific Railroad Co.24 involved the validity of the income tax provisions of the act of October 3, 1913, as taxing gains of a railroad corporation. The case did not involve any tax on incomes from bonds or other securities issued. by states, cities, or other subdivisions of states, or from salaries or wages paid by them.

Mr. Chief Justice White states and numbers all the contentions made in the case, and not one of them involves in any way whatever any question of the power of Congress to tax incomes from such bonds or securities or such salaries or wages. In view of these

24 240 U. S. 1 (1916).

indisputable facts it seems unfair to the learned Chief Justice to assert that he or the court undertook in the Brushaber case to pass upon a constitutional question which (1) was not involved in the case, and (2) to do so in advance of any act passed by Congress under which the question might arise, and (3) in the absence of arguments by counsel upon such constitutional question. Such is not the custom of the Supreme Court.

In Stanton v. Baltic Mining Company,25 the question was as to the validity of the provisions of the act of October 3, 1913, taxing incomes of mining companies, and no more involved the questions now under discussion than did the Brushaber case.

In Tyee Realty Company v. Anderson,26 the question was as to the validity of the provisions of the same act taxing income of a realty company, and did not involve at all the questions now under discussion.

In Peck v. Lowe, a corporation engaged in buying goods in the several states and shipping them to foreign countries questioned the right of the government to levy an income tax under the Act of 1913 on so much of its income as arose from shipping goods to foreign countries and there selling them, claiming that this was within the prohibition of the Constitution, that "No tax or duty shall be laid on articles exported from any State." The court said: "The Sixteenth Amendment, although referred to in argument, has no real bearing and may be laid out of view." After considering the decisions, the court held that the prohibition of an export duty on articles did not prohibit an income tax on the corporation in respect of the gains made in the business above mentioned. So the court did not need to consider whether, if the clause of the Constitution which prohibited an export tax would otherwise prohibit an income tax on such income, nevertheless an income tax could be supported by the sixteenth amendment acting as a repeal pro tanto of such export tax prohibition. The court did say: "As pointed out in recent decisions, it [the sixteenth amendment] does not extend the taxing power to new or excepted subjects,” etc., citing Brushaber v. Union Pacific Railroad Co. and Stanton v. Baltic Mining Co., above referred to. But this case, of Peck v.

25 240 U. S. 103 (1916).
26 Ibid., 115 (1916).
27 247 U. S. 165 (1918).

Lowe, was decided by the court, as is stated by the court itself on the ground that a tax on an exporter's income is not a "tax on exports." Furthermore, as above pointed out, neither the Brushaber case nor the Stanton case really involved any such question as these words quoted from the opinion in the case of Peck v. Lowe might indicate.

It is respectfully submitted that the sixteenth amendment clearly gives power to Congress to tax incomes from bonds and other securities issued by states, cities, and other subdivisions of states, and from salaries and wages paid by them.

GREENWICH, CONNECTICUT.

Harry Hubbard.

THE PROGRESS OF THE LAW, 1918-1919

SEVERAL

EQUITY (Continued)

9. EQUITABLE SERVITUDES

cases decided during the past year involve incidentally the nature of restrictive agreements as to the use of property enforceable in equity. In the classical decision on this subject,2 Lord Cottenham considered that he was enforcing against C a contract made between A and B and that he was doing so in order to prevent unjust enrichment. Later English cases argued in the same way, but it is now clear that English courts regard these agreements as imposing servitudes upon the property restricted, either appurtenant to other property, or for the benefit of a particular person while owner of such other property. American courts have been coming to the same result, although the language of the decisions is not always consistent in the same jurisdiction and some courts seem committed to the contractual view. When the objection is raised that no pecuniary advantage

1 White v. Harrison, 81 So. (Ala.) 565 (1919); Werner v. Graham, 183 Pac. (Cal.) 945 (1919); Windemere-Grand Improvement Ass'n v. American Bank, 172 N. W. (Mich.) 29 (1919); Swan v. Mitshkun, 173 N. W. (Mich.) 529 (1919); Bull v. Burton, 124 N. E. (N. Y.) 111 (1919).

2 Tulk . Moxhay, 2 Phil. 774 (1848).

...

3 "The argument must, it would seem, go to this length, viz., that . . . a purchaser becomes entitled to the covenant even although he did not know of the existence of the covenant. . . . It appears to me that . . . this is not the law of this court and that in order to enable a purchaser as an assign . . . to claim the benefit of a restrictive covenant, this, at least, must appear, that the . . . benefit of the covenant was part of the subject-matter of the purchase." Hall, V. C., in Renals v. Cowlishaw, 9 Ch. D. 125, 130 (1878).

• Rogers v. Hosegood, [1900] 2 Ch. 388; In re Nisbet and Potts' Contract, [1995] 1 Ch. 391, 399, [1906] 1 Ch. 386, 401, 405, 409.

5 Werner v. Graham, 183 Pac. (Cal.) 945 (1919); Childs v. Boston R. Co., 213 Mass. 91, 99 N. E. 957 (1912); Riverbank Improvement Co. v. Chadwick, 228 Mass. 242, 117 N. E. 244 (1917); King v. Union Trust Co., 226 Mo. 351, 126 S. W. 415 (1910); Flynn v. New York R. Co., 218 N. Y. 140, 112 N. E. 913 (1916).

6 Wiegman v. Kusel, 270 Ill. 520, 110 N. E. 884 (1915); De Gray v. Monmouth Beach Co., 50 N. J. Eq. 329, 24 Atl. 388 (1892); Doan v. Cleveland R. Co., 92 Ohio St. 461, 112 N. E. 505 (1915); Bald Eagle R. Co. v. Nittany R. Co., 171 Pa. St. 284, 33 Atl. 239 (1895).

9

to plaintiff is involved in enforcement of the covenant, courts are apt to speak in terms of the property theory. When, on the other hand, the objection is that the character of the neighborhood or surroundings of the property and conditions of application of the servitude have changed, courts which in other connections adopt the property theory are likely to talk in terms of the contract theory. This is brought out in the decisions during the past year. In White v. Harrison and Swan v. Mitshkun the defendants urged that on a balance of convenience and in view of the slight advantage or want of advantage to plaintiff, the chancellor in his discretion should deny an injunction. In granting injunctions the courts in effect took the position that they were protecting property, although the Alabama court speaks of preservation of a "plain contract right." 10 On the other hand, in Windemere-Grand Improvement Ass'n v. American Bank 11 and Bull v. Burton,12 where the defense was change of condition of the neighborhood, the courts talk in terms of specific performance and of the discretion of the chancellor to refuse such relief on a balance of convenience where the result would be inequitable. The real difficulty is to find a suitable theory of the effect of change of situation upon equitable servitudes. This subject will be considered presently.

How much there may be in a name is shown by the cases on creation of equitable servitudes otherwise than by express covenant. Deduction from the phrase "covenants running with the land in equity" has manifestly played a large part in too many of them. What we really have here is an equitable appendix to the common law as to servitudes. The common law recognized ease

Jackson v. Stevenson, 156 Mass. 496, 31 N. E. 691 (1892); Amerman v. Deane, 132 N. Y. 355, 30 N. E. 741 (1892); McClure v. Leaycraft, 183 N. Y. 36, 75 N. E. 961 (1905).

8 81 So. (Ala.) 565 (1919).

9 173 N. W. (Mich.) 529 (1919).

10 81 So. 566-567. It should be noted that this court turns Lord Cottenham's argument in Tulk v. Moxhay into a dogmatic fiction: "It [the court] was bound also to assume that the restriction of this covenant, and its effect upon property rights, had consideration when the deed from complainants' ancestor to defendant's predecessor in title was executed and remained a constant factor in subsequent transfers." Compare this with note 3, supra, where Hall, V. C., called for proof that the covenant had been taken into account in subsequent transfers.

11 172 N. W. (Mich.) 29 (1919).

12 124 N. E. (N. Y.) 111 (1919).