It is the subject of larceny because it is property, and in these times is universally considered property. But it is possible to uphold the tax assessed against the defendant upon a somewhat different ground. Mr. Cooley, in his work on Taxation (3d Ed.) 789, says: "The power of taxation is an incident of sovereignty, and is possessed by the Legislature without being expressly conferred by the people. It is a legislative power. * Everything to which the legislative power extends may be the subject of taxation. * *Nothing but express constitutional limitation upon legisla tive authority can exclude anything to which the authority extends from the grasp of the taxing power, if the Legislature in its discretion shall at any time select it for revenue purposes." striction or inhibition in the Constitution upon its power in that regard. But while this is true, we prefer to take the natural, logical and reasonable position that income is property, within the meaning of that word as used in the exemption clause of section 1, article 8, of the Delaware Constitution. And we are inclined to believe that no court in this country to-day, in construing a constitutional provision similar to ours, would maintain the contrary position. [3] Is the Income Tax Law unconstitution all because of lack of uniformity, as claimed by the defendant in his second point? He contends that the statute is not uniform upon the same class of subjects within the territorial limits of the authority levy And in Judson on Taxation (2d Ed.) § 496 ing the tax, because salaries of state of(544), it is said: "The legislative power of taxation is inherent, and the state Constitution is only operative as a restraint, not as a grant of power." We must assume, therefore, that the Delaware Legislature would have the power to tax the income of the citizen, even though the power is not expressly given by the Constitution, if there is no restriction or inhibition against it. This is not denied by the defendant, but he insists that there is an · inhibition against it, namely, the plain intent that nothing but property shall be taxed. It is not contended that there is any express inhibition, but only that which is implied from the use of the word "property" in the exemption clause. The Legislature having the inherent power to tax everything to which the legislative power extends, which necessarily includes income, it might be reasonable and legal to hold that the word "property" in the exemption clause is employed in its broadest sense, and comprehends everything, or class of subjects, to which the legislative power extends. The Constitution makers, doubtless recognizing this inherent power of the Legislature to tax anything, did not undertake to grant the power of taxation, or say what might be taxed, but merely provided that the tax imposed on any class of subjects should be uniform, and that the Legislature might exempt such property as in its opinion would best promote the public welfare. By "such property" manifestly was meant any thing that was taxable under the inherent power of the Legislature. All that the Constitution makers had in mind respecting taxation was uniformity and the public welfare. Everything else was left to the discretion of the Legislature. Instead of limiting by implication the things that might be taxed, we think the word "property" might be so construed as to be consistent with the inherent power of the Legislature in the matter of taxation, there being no re ficials, rentals from real estate, income derived from agricultural operations, and incomes that do not exceed $1,000 are exempt from its operation. It is admitted that all other exemptions are reasonable and valid. The argument of the defendant is based primarily on the assumption that, by the exemptions of which he complains, certain classes of citizens are exempt as individuals from taxation, namely, office holders, landowners and farmers or persons engaged in agricultural pursuits. Such assumption is manifestly incorrect and misleading. The purpose and effect of the law is, not to exempt such persons, but their income derived from certain sources, and clearly specified. Income they may receive from other sources is taxable under the law. So that the question before the court is not whether the Legislature can exempt certain classes of citizens from taxation, as individuals, but whether the income they may receive from certain sources may be exempt. Before considering each of these exemptions separately, it may be said generally that the question also is, not whether such exemptions in fact best promote the public welfare, but whether they did so in the opinion of the General Assembly. And the only qualification the law affixes to the opinion and act of the General Assembly is this: It must be reasonable and not arbitrary. Under the law the Legislature is given much latitude in determining what kinds of property should be exempt from taxation, as best promoting, in their opinion, the public welfare. With such rules for our guidance, we will now consider the exemptions complained of: (a) Salaries of State Officers. The General. Assembly could have had but one reason for such exemption, and that was the belief that the taxing of such income would make the act unconstitutional. And, without deciding whether such would have been the effect or not, it is sufficient to say that the (108 A.) The court are of the opinion that the Legislature had authority to enact the act in question, and that it is not invalid because of lack of uniformity. belief which influenced the Legislature was, it was not reasonable. It was not arbitrary a reasonable one. In view of the fact that and it did not make the act invalid. our Constitution prevents the diminishing of the salary of a state officer during his term of office, and of the further fact that Congress made the same exemption in the federal Income Tax Law, because of the belief that otherwise the act would be declared unconstitutional, it was natural and proper that our Legislature should make the exemption in question. It will be observed that the act does not exempt salaries received after the terms of office which began before the enactment of the law. (b) Rentals of Real Estate. Manifestly, the reason for this exemption was the belief of the General Assembly that the burden of taxation had not been fair, and that real estate had borne too great a proportion of such burden. In order to equalize the load as much as possible in a tax law, it was provided that the new tax created, the income tax, should not affect rentals of real estate, but should affect such sources of income as previously had not been taxed, or had not been taxed as heavily as real estate. (c) Gains or Profits Derived from Agricultural Operations. This exemption is closely related to the one just considered, and the same reasoning applies. It is true that it relieves the tenant, as well as the landowner, from the payment of any tax on the profits derived from use of the land, and while he is not required to pay a tax on real estate, he is required to pay a tax on his other taxable personal property. But evidently the theory and the fact upon which the Legislature acted was that, if the tenant had to pay a tax upon his profits derived from operating the farm, he would be entitled to a lower rental, and to the extent the rental was decreased, the return of the landowner would be diminished. In other words, the owner would indirectly have to pay the tax levied against the profits of his tenant. (d) In respect to the exemption of incomes that do not exceed $1,000, it is enough to say that the Legislature might very well have thought that such exemption would best promote the public welfare. It was a proper and reasonable classification of persons whose incomes are very limited, and one that in principle is universally recognized, so far as we are informed, in laws that provide for the taxation of incomes. Peacock v. Pratt, 121 Fed. 772, 58 C. C. A. 48. In respect to the three exemptions last mentioned, it may be said that the question is not whether the General Assembly was right in its conclusion as to the wisdom and justice of the exemptions, but whether their opinion that the exemptions were proper and would best promote the public welfare was reasonable. We are not prepared to say The remaining grounds of demurrer, namely, the denial of the equal protection of the law, depriving the defendant of his property without due process of law, and contrary to the law of the land, were discussed by defendant's counsel only in a general way and very briefly. Evidently, they did not rely with much confidence on those grounds, and we deem it unnecessary to discuss them at length. [4] The state Income Tax Law is not, in our opinion, open to any objection as violative of the Fourteenth Amendment to the federal Constitution, or of section 7, article 1, of the Constitution of this state, and this conclusion is amply supported by authority. Michigan Central R. R. Co. v. Powers, 201 U. S. 292, 26 Sup. Ct. 462, 50 L. Ed. 744; Bell's Gap Co. v. Pennsylvania, 134 U. S. 232 (237) 10 Sup. Ct. 533, 535 (33 L. Ed. 892); Davidson v. New Orleans, 96 U. S. 97, 24 L. Ed. 616; Barbier v. Connolly, 113 U. S. 2731, 5 Sup. Ct. 357, 28 L. Ed. 923; Peacock & Co. v. Pratt, 121 Fed. 773, 58 C. C. A. 48; Connolly v. Union Sewer Pipe Co., 184 U. S. 562, 22 Sup. Ct. 431, 46 L. Ed. 679; Pollock v. Farmers' Loan Co., 158 U. S. 629, 15 Sup. Ct. 912, 39 L. Ed. 1108. In the Michigan case the court said: "There can * be no question that it was not designed by the Fourteenth Amendment * to prevent a state from changing its system of taxation in all proper and reasonable ways.' 99 And in the Bell's Gap Co. Case it was said: "All such regulations, and those of like character, so long as they proceed within reasonable tion of the state Legislature, or the people of limits and general usage, are within the discrethe state in framing their Constitution. But clear and hostile discriminations against particular persons and classes, especially such as are of an unusual character, unknown to the practice of our governments, might be obnoxious ** We to the constitutional prohibition. * think that we are safe in saying that the Fourthe state to adopt an iron rule of equal taxateenth Amendment was not intended to compel tion." All that the law requires is that the classification of the persons who are to be exempt from the operation of the statute shall not be arbitrary and unreasonable, under the conditions which the Legislature believed to exist, that it shall be possible for the court to say there was a fair reason for the exemption, and that the classification rests upon some difference which bears a reasonable and just relation to the act in respect to which the classification was proposed. nedy and Hattie Kennedy, the defendants, they subsequently filed an affidavit with the justice, denying the obligation, etc., and asked that a trial be granted as provided by Rev. Code 1915, § 4020. Trial was had and determined in favor of the obligation. Defendants bring appeal. Directed verdict for the plaintiff. This, according to all the authorities, is the test, and measured by such test, we think the statute in question is not invalid because of the exemptions allowed. State v. Wickenhoefer, 6 Pennewill, 138, 64 Atl. 273. It is ordered that the foregoing opinion be and it hereby is certified to the Court of General Sessions in and for New Castle County. After the execution and delivery of the Whereupon the latter court, being in ses-tered by the justice had been proved and adobligation on which judgment had been ension, overruled the demurrer, and the de-mitted in evidence, and proof by the plaintiff fendant took final judgment. (7 Boyce, 426) KENNEDY et al. v. COLLINS. May 5, 1919.) that nothing had been paid on the note, the plaintiff rested. Thomas Kennedy, one of the defendants, being called as a witness, was asked by his counsel: Q. At the time you signed that note, did you owe Mr. Collins anything? (Objected to.) PENNEWILL, C. J. We think you cannot attack the consideration of a sealed instruJUSTICES OF THE PEACE 120-ATTACK ON ment. A sealed instrument imports considerCONSIDERATION OF SEALED NOTE AFTER JUDG-ation. We sustain the objection. MENT BY CONFESSION. Q. Why did you give that note? A. I was In a trial granted by a justice of the peace compelled to do it. Q. For what reason? under Rev. Code 1915, § 4020, after judgment A. Because they had my goods all covered by confession on a sealed note, defendant cannot attack the consideration by showing that up. (Objection made upon the ground that note was executed under duress to avoid the though the goods of the defendant had been taking of his goods in execution on a judgment taken in execution the fact did not constitute which he did not owe. duress.) Mr. Hawkins: Suppose the defendant's Action by George W. Collins, p. b. r,ment which he didn't owe? Citing Hackley goods were seized in execution upon a judgagainst Thomas Kennedy and Hattie Kennedy, d. b. a., wherein plaintiff obtained judg-V. Headley, 45 Mich. 569, 8 N. W. 511. ment by confession on an obligation with warrant of attorney against defendants, who filed affidavit denying the obligation and asking for trial, which was had and determined in favor of the obligation, and defendants appeal. Directed verdict for plaintiff. PENNEWILL, C. J., and BOYCE, J., sit ting. Arley B. Magee, of Dover, for plaintiff. George W. Collins, the plaintiff, having obtained a judgment by confession before a justice of the peace on an obligation with a warrant of attorney against Thomas Ken PENNEWILL, C. J. You can't go into that in this action. If the defendant had any remedy at that time, it was in chancery. To show duress in this case you would be compelled to show that there was no consideration for the execution. We sustain the objection. Mr. Hawkins: We have no other defense. Mr. Magee: I ask the court to give the jury binding instructions to find a verdict for the plaintiff. PENNEWILL, C. J. Under the testimony. gentlemen of the jury, there is nothing for you to do but find a verdict for the plaintiff. Verdict for plaintiff. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (118 Me. 495) STATE v. HENRY. (108 A.) Action by Noel Marston, by his next friend, against the N. E. Redlon Company. Verdict (Supreme Judicial Court of Maine. Oct. 28, for plaintiff, and defendant moves for a new 1919.) PERJURY 3, 31-FALSE TESTIMONY MUST BE GIVEN WILLFULLY AND CORRUPTLY. To constitute perjury, both at common law and by statute, the false testimony must have been given willfully and corruptly, and the burden is upon the state to prove this element of the charge beyond a reasonable doubt. Appeal from Superior Court, Cumberland County; Lauren M. Sanborn, Judge. William Henry was convicted of perjury, his motion to set aside the verdict was overruled, and he appeals. Appeal sustained, motion sustained, and new trial ordered. Arthur Chapman, of Portland, for appel lant. Carroll L. Beedy, of Portland, for the State. trial. Motion overruled. Henry Cleaves Sullivan and William A. Connellan, both of Portland, for plaintiff. William H. Gulliver and John B. Thomes,. both of Portland, for defendant. PER CURIAM. This is an action brought by Noel Marston through his mother as next friend against N. E. Redlon Company, contractors having their usual place of business at Portland in the state of Maine. The declaration alleges that the plaintiff received injuries at Portland on the 20th day of February, 1918, while playing in the rear of a certain building, which building was located on Congress street. The injuries were received through the collapse of the building during a severe gale of wind. The defendant previous to the day of the accident removed certain flooring and timbers from the building, and it was claimed by the plaintiff that PER CURIAM. The respondent was found the removal of this material weakened the guilty of the crime of perjury. After ver- building and caused its collapse. The plaindict, a motion addressed to the justice at tiff while playing close to the building was nisi prius, praying that the verdict be set which fell from the third story. He was tak struck by certain bricks and other débris aside, was overruled. The case comes to this court on appeal. In support of the mo-mained under treatment for some time. en to the hospital at Portland, where he retion and appeal several grounds were urged, but we think only one need be considered. The case was tried at the February term To constitute perjury, both at common and returned a verdict for the plaintiff, and asabout one year after the accident. The jury statute law, the false testimony must have sessed damages in the sum of $4,535. been given willfully and corruptly. The By agreement the case is before this court burden is upon the state to prove this ele-on defendant's motion to have the verdict set ment of the charge beyond a reasonable doubt. After a most careful and painstaking examination of the evidence, the court is of opinion that the state has failed to sustain this burden. Appeal sustained. New trial ordered. aside on the ground that it is excessive. The writ alleges severe injuries to the boy's hip, back, spine, etc., that his face was disfigured, that his legs were cut and lacerated, and that he suffered great pain in body and mind. The plaintiff was nine years of age when the accident occurred. His injuries were serious, and the case shows that they are of permanent character, and of such nature that oneat least may in time result in cancer. In addition, it appears that further operations may be necessary in order to insure safety and ease in walking. The injury was most distressing, and his hospital and home treatment were of many weeks' duration. The jury having all the facts before them, one year after the accident, and having in view the DAMAGES 132(7)-DAMAGES FOR PERSONAL age of the plaintiff, his long life expectancy, (118 Me. 499) MARSTON v. N. E. REDLON CO. (Supreme Judicial Court of Maine. 1919.) INJURY NOT EXCESSIVE. Oct. 31, A verdict of $4,535 was not excessive for serious and permanent injuries to the hip, back, spine, etc., of a boy nine years old, a disfigurement of the face, and cuts and lacerations of the legs, where he suffered great pain, operations might be necessary, and a cancer might result, and he was under hospital and home treatment for many weeks. On Motion from Superior Court, Cumberland County; Lauren M. Sanborn, Justice. the suffering he had endured, the pain and suffering he is likely to endure, the almost certain malignant growth to follow his most serious injury, estimated the damages with greater certainty than we could possibly attain if the case were submitted to us on report. We have examined the evidence with great care, and we are unable to conclude that the damages assessed are excessive. Motion overruled. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes soon after the injury paid something toward the expenses of the plaintiff at the hospital in response to a demand from the mother of the plaintiff. In November, 1916, the plaintiff through his father as next friend brought an action against the defendant, Roscoe Skillings, and on the 2d day of April, 1917, recovered judgment for his injuries in the amount of $400. Some five or six years prior to the accident and following their marriage, the defendants in their joint names took the title to a lot of land in Scarboro, and later built a dwelling house and other buildings thereon, in which they lived. On the 24th day of June, 1916, or about five weeks after the accident, Roscoe Skillings conveyed to his wife, the defendant Dena Skillings, without any valuable consideration, all his interest in the property then held in their joint names, and about the same time transferred to his brother the automobile which he was operating at the time of the accident, which included all the attachable property then belonging to him or standing in his name or in his possession. The reasons assigned for these transfers following so soon after the accident, were: That the real property was purchased with money belonging to the wife, and the buildings were built solely with her funds earned and saved by her, and the title was taken in their joint names, so that he could buy the lumber as her agent when they proceeded to build, and for the purpose of giving the husband a financial standing and a basis for credit, but only until he went into Appeal from Supreme Judicial Court, Cum- some business for himself, when it was to berland County, in Equity. be transferred to the wife. He went into the business of landscape gardening for himself about the 1st of April, 1916, and prior to that time had been employed by some one else in a similar line of work, in which his only requirements for credit seem to have been in the event of the purchase of gardening tools; that the automobile was transferred to the brother because the brother had signed notes with him to pay for it when he bought it. The automobile has since been recovered for the benefit of the creditors. On March 26, 1917, the defendant Roscoe Skillings filed a voluntary petition in bankruptcy, in which his provable debts amounted to less than $120, of which $40 were for counsel fees apparently incurred prior to the bankruptcy proceedings; and on March 31st he was adjudged a bankrupt. On the 18th day of April, 1917, the intervening petitioner, Henry C. Sullivan, was appointed trustee and duly filed his bond. Date of hearing, January 26, 1919. On the 24th day of April, 1917, this bill was filed to set aside the conveyance of the real estate as fraudulent against this plaintiff, being a subsequent creditor, and on the 7th day of the following May the trustee in |