The opinion
HOUGH, Circuit Judge
(dissenting). It seems certain that what is taxed is the income of the persons against whom assessment is made, not that of some one else. Nor is any peculiar signification given.to the word “income,” which ordinarily means “money, and not the expectation of receiving it, or the right to receive it at a future time.” United States v. Schillinger,, 14,Blatchf. 71, Fed. Cas. No. 16,228.
*729 This plaintiff certainly never received this money, nor had it any right so to do, for by the terms of the lease the so-called “dividends” shall he paid direct to the shareholders. That is the shareholders’ right, not at all a privilege of the plaintiff, nor a “mere labor-saving device.” The test is: Would a payment by the Delaware & Hudson to the Rensselaer & Saratoga discharge the former’s obligation or liability to tlie individual shareholders? It seems to me that reading the lease requires a negative answer.
The truth is “dividends” is an inappropriate and misleading word, for these recurring payments bear no relation to earnings, and are debts of the Delaware & Hudson to the shareholders severally, who own said debts as they arise or accrue, who could sue for them, and against whom the tax should be laid or assessed.
The- quotation relied on from Anderson v. Morris & Essex R. R., supra, was not necessary to the decision of that case, and as obiter, is not an adjudication. As applied to the statute now under consideration, it produces this result, namely: That income arises or accrues to a person, though he has it not in possession, and docs not even -own the right to sue for and recover it.
On these grounds I dissent.