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that Congress intended to avoid the result reached in Eliot v. Freeman, supra. Suppose that to be true. The fact that Congress might have intended to avoid such result is no reason for finding that Congress, as a matter of fact, by passing the Acts of 1916 and 1918 did do anything which would avoid the result of the Eliot case. Intention and accomplishment are two widely different things. The Acts of 1916 and 1918 cannot be presumed to contain certain provisions merely because Congress might have intended to avoid certain results or remedied certain conditions unless Congress employed words clearly showing that intention and susceptible of that construction. In view of the statement that Congress intended to avoid the results of the Eliot decision by passing the Acts of 1916 and 1918, it is worth while to note that Congress probably intended to do that very thing when it passed the Act of October 3, 1913, by changing the words "now or hereafter organized under the laws of the United States," etc., to "every corporation, joint stock company or association, and every insurance company, organized in the United States, no matter how created or organized." Certainly this language is very much broader than that construed in the Eliot case, and, as a matter of fact, it is the same language used in the Acts of 1916 and 1918, to-wit: "organized in the United States" with the addition of the broader and more inclusive phrase "no matter how created or organized." Still, it was held by the Supreme Court of the United States in Crocker v. Malley 249 U. S. 223 that the language of the Act of October 3, 1913, did not include so-called Massachusetts trusts. Certainly, if the broad language of "no matter how created or organized" contained in the Act of 1913 and presumably passed to remedy the Act of 1909, was not sufficient to bring the Massachusetts trust within the term "association" as employed in the statutes, it is difficult to see how the language being construed in the cases decided by Malley v. Howard brings such a trust within its scope.

It is interesting to note that the Circuit Court confesses that the same court (in construing the Act of October 3, 1913, in Crocker v. Malley 250 Fed. 817) held the trust there in question to be an "association," as it does the trusts in question in the present cases. It then states that the Supreme Court reversed their decision (Crocker v. Malley 249 U. S. 223), adopting the view of the District Court, which is convincing evidence that the Circuit Court was in error in its interpretation of the Act and in applying the law to the facts in the case. It is rather difficult to see why, after being reversed by the Supreme Court in Crocker v. Malley, the Circuit Court insists in again holding a trust similar to the one there involved to be an association when the Acts of 1916 and 1918 do not contain any broader or more inclusive language than did the Act of 1913. In fact, as has been pointed out, the language of the Act of 1913 is broader than that of the Acts of 1916 and 1918.

The Circuit Court explains that the decisions in Crocker v. Malley both in the Supreme and District courts, against the government, turned upon the fact that the shareholders in the trust had

no real control over the trust estate, so that it therefore fell within the doctrine of Williams v. Milton 215 Mass. 1. A question that might very well be here asked is, What would become of the Circuit Court decision in the present case if the trust in question also came within the doctrine of Williams v. Milton, supra? In that connection, it might be well to point out that the Circuit Court, at the beginning of the opinion states that the question involved the validity of taxes imposed upon business organizations, commonly known as Massachusetts trusts. We must assume, therefore, that they are pure Massachusetts trusts and not partnerships, joint stock companies or other associations, and, therefore, coming within the doctrine of Williams v. Milton, supra. If the so-called trusts in question are not trusts, but some other form of organization, then we are beside the point and the decision has no bearing upon any question relating to trusts. Many instruments purporting to be declarations of trusts have been held to be anything but a trust. This is true even in Massachusetts. A number of decisions rendered by the Supreme Court of Massachusetts have held organizations, claiming to be trusts, to be partnerships: Williams v. Boston 208 Mass. 497; Phillips v. Blatchford 137 Mass. 510; Gleason v. McKay 134 Mass. 419. We must assume, therefore, that the organizations in question are real trusts, which might very well come within the doctrine of Williams v. Milton, supra.

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In the case of Crocker v. Malley 249 U. S. 223, the court says: "There can be little doubt that in Massachusetts this arrangement would be held to create a trust and nothing more The sole right of the cestuis que trustent is to have the property administered in their interests by the trustees, who are the masters, to receive income while the trust lasts, and their share of the corpus, when the trust comes to an end: William v. Milton 215 Mass. 1. The requirement is that the normal tax thereinbefore imposed upon individuals shall be paid upon the entire net income accruing from all sources during the preceding year 'to every corporation, joint stock company or association, and every insurance company organized in the United States, no matter how created or organized, not including partnership.' The trust that has been described would not fall under any familiar conception of a joint stock association, whether formed under the statute or not: Smith v. Anderson L. R. 15 Ch. Div. 247, Eliot v. Freeman 220 U. S. 178. If we assume that the words 'no matter how created or organized' apply to 'association,' and not only to insurance company,' still it would be a wide departure from the normal usage to call the beneficiaries here a joint stock association when they are admitted not to be partners in any sense, and when they have no joint action or interest and no control over the fund. On the other hand, the trustees by themselves cannot be a joint stock association within the meaning of the act unless all trustees with discretionary powers are such . . We perceive no ground for grouping the two-beneficiaries and trustees-together, in order to turn them into an association, by uniting their contrasted functions and powers, although they are in no proper sense associated. It seems to be an unnatural perversion of a well known institution of the law."

The court sums up its opinion by certain conclusions. The second conclusion states that the contrast between the language used in the Act of 1909, "organized under the laws of the United States or any state," etc., and in the Acts of 1916 and 1918, "organized in the United States," shows that Congress intended to avoid the result reached in 1911 by the Supreme Court in Eliot v. Freeman. But while the language employed by the Act of 1913 and construed in Crocker v. Malley is identical with that of the Acts of 1916 and 1918, to-wit: "Organized in the United States" with the additional phrase "No matter how created or organized," making the language of the Act of 1913 considerably broader and more inclusive than the Acts of 1916 and 1918, yet the Supreme Court holds that the so-called Massachusetts trust did not come within the scope of the words of that statute.

In the third conclusion, the court says the manifest purpose of Congress was to tax business deriving powers or making profits from associations, particularly from business done by organizations getting all or a substantial part of their capital on transferable shares. It is inconceivable that the transferability of a beneficial interest in a trust by means of a negotiable certificate can make any difference in the character of a trust or any other form of organization. It is a well known common-law rule of trusts that the beneficial interest in a trust is alienable by its owner whether such beneficial interest is evidenced by a negotiable certificate or simply by the declaration or deed of trust, unless, of course, there is some provision in the instrument creating the trust, placing proper legal restrictions upon such alienation.

In the fifth conclusion the court states that by the Act of 1916 the Massachusetts legislature made such associations liable to creditors in like manner as if a corporation, and that by analogy they become liable for federal taxes. It might just as well have said that because the trustees of a so-called Massachusetts trust have a right to acquire property and had a right to contract collectively as a trust in a manner similar to the directors of a corporation, therefore it was a corporation and should pay a corporation franchise tax. The legal reasoning involved in one statement is as sound as in the other. Because an organization has certain attributes either at common law or by statute that attend other organizations is no foundation for asserting that they must, therefore, be alike in every respect, or that they must assume the same burdens and liabilities.

In the sixth conclusion the court states that the plaintiff's contention would create discriminatory immunity for a large class of business organizations, thus giving them an unfair advantage over their incorporated competitors. This last conclusion seems to be the underlying thought of the court upon which the whole opinion is based. The question of policy, however, is determinable by the legislative rather than the judicial branch of our government. It seems to the writer that the sixth conclusion arrived at by the court and its effect upon business interests is as clear a case of legislation by judicial construction as one can well hope to find. The court

seems to say that no one (not even a trust which is at all times subject to the direction of a court of equity, where interested parties may appeal to the conscience of the chancellor for relief) shall gain any advantage over the much abused and struggling corporation, whose minority stockholders are repeatedly lashed to the mast with little, if any, relief in the courts of law. The Circuit Court in its opinion says: "Modern corporations usually furnish adequate machinery for carrying on every legitimate form of business, including those now dealing in real estate." By what authority does any court presume to tell any individual or any organization, legal in itself, that some forms of organization furnishes adequate machinery for carrying on its business, and inferring that by reason of that fact its business shall not be conducted under its existing form of organization without suffering penalties. It reminds one of the answer of the 'old time lawyer' to the insistent demand of the younger generation that our system of common-law pleading be simplified. Every lawyer knows what the answer is. Of all the learned professions, ours is the only one whose members refuse to look to the future. They are constantly digging and grubbing in the past, deriding and criticizing any new thought or theory evolved by the progressive mind. The physician, the surgeon, the dentist, the engineer, the scientist, etc., are always experimenting in unexplored fields with the hope of discovering something which will aid future mankind, while we as lawyers condemn each and everything which is not based solidly on all fours upon the past.

The court in stating that the contention of the plaintiffs would create discriminatory immunity to a large class of business organizations carries with it an implied rebuke, which places these business trusts in the odious light of resisting a tax which they think is not imposed upon them by Congress, but it may be answered that a trust has the same right as a corporation to resist the demands of the government to pay any tax illegally imposed, and the language of the Supreme Court in Gould v. Gould 245 U. S. 151 may be recalled that "in applying this and every other tax statute such reasonable doubts must be resolved in favor of the taxpayer." In other words, there must be a clear intent on the part of Congress, gathered from the language used, to impose a tax before it can be levied and collected. JASPER F. ROMMEL.

WATERS-SURFACE WATER-NATURAL WATER COURse-EnLARGEMENT OF CHANNEL-BRIDGES.-The problem directly involved in the case of Mauvaisterre District v. Wabash R. Co. 299 Ill. 299, 132 N. E. 559, was whether the railroad could be required at its own expense to raise its right of way embankment and enlarge bridges where the raising and enlargement were made necessary by raising the height of levees along an artificial watercourse that ran across the railroad right of way under one of the bridges originally voluntarily constructed by the railroad company. Various considerations arose upon the solution of that problem.

The court, very properly it would seem, fixes as the premise for its ratio decidendi, the well-known rule that a lower owner must take all surface water that would flow over his land in the natural course of drainage, even such as would otherwise have stayed on and seeped into the upper land if artificial means had not assisted its drainage (ILL. L. REV. IX 564, 565); and working from that premise, finds that the evidence does not show if the additional water that the proposed raising of the levee would throw across the railroad right of way, would be caused thereby to run out of the natural course of drainage. In the course of the opinion, however, the court refers to the obligation which a lower or servient owner has to receive surface water and the right which an upper owner has to throw surface water upon the land of the lower owner, as in the nature of an easement, with the resultant qualification inherent in easements, of extinguishability in one of the four modes in which easements may be extinguished (ILL. L. REV. XV 338). The authority for this position is found in the case of Drainage District v. Lawrence 231 Ill. 86, and that case in turn presents good authority for its position. (See also Liggins v. Inge 7 Bing. 682.)

Upon theory, however, it is submitted some question may be raised as to the soundness of the result thus arrived at. The right of drainage by which one owner of lands is required to receive all surface water in the course of drainage, is a natural right and not one artificially created by act of individual parties (Leake, "Land Law," Pt. iii p. 226; Veghte v. Raritan Water Power Co. 4 C. E. Green 142, 154); as such, its extent is not measured by any degree of user as in the case of an easement by prescription, or by the four corners of any instrument as in the case of an easement by grant (ILL. L. REV. IX 565). A right of drainage by prescription, on the other hand, is a limited right, and the dominant owner cannot exceed the extent of user by virtue of which the easement was created (Elser v. Gross Point 223 Ill. 230). This natural right gives to the dominant owner the right to change the channels within the confines of his own land (Elser v. Gross Point 223 Ill. 230; R. Co. v. Adams 221 I. 201; People v. Peeler 290 Ill. 454) and increase the flow (Peck v. Herrington 109 Ill. 611); the easement, however, gives no such right, but confines the right strictly to the channel and the flow by virtue of which the easement was acquired. Indeed, the observation is pertinent here, that was made in the case of Dettmer v. Ill. T. R. Co. 287 Ill. 521-522, that the natural right of drainage extends to all the changing conditions required by the public welfare of society, whereas an easement must, necessarily, be confined to the one who acquires it. And closely upon that train of argument follows the thought that if it is a natural right appurtenant to a piece of land, it is in the nature of the right to have a stream flow by one's land as it was wont in a state of nature, and it cannot be said that it is a burden on land of artificial creation which the law disfavors (Elser v. Gross Point 240 Ill. 508; Kohl v. Chateau Island Drain. Dist. 283 Ill. 78). The conclusion that such argument leads one to, is that the same rules of extinguishment of easement that apply to easements of artificial creation do not apply to the natural

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