ception of three words, namely, "private corporations" and "fees," a transcript of the statute of Nebraska, under which the tax under consideration in the case of Mageneau v. Fremont, supra, was imposed. The same objection to the tax was made in the Nebraska case as is here made, namely, that the tax is not uniform, and therefore is not in compliance with the foregoing provision. This objection was, however, overruled in the Nebraska case, and this was done notwithstanding the fact that the tax in Nebraska was imposed upon all merchants alike, whether large or small, under what is termed a "flat rate." This will also be found to have been the case in a number of other cases, while in others a classification was upheld similar to the one under which the tax in question was imposed. The authorities, therefore, are against the contention of appellant that such a classification offends against uniformity. The provision is not that the taxes must be equal as between individuals, but that they "shall be uniform in respect to the class upon which they are imposed." If a flat rate upon all merchants alike is a uniform tax within the provision, why is one where greater equalization is effected by classifying the merchants into groups, so as to bring those with stocks the value of which are more nearly alike, not also uniform? The classification is for the sole purpose of establishing equality, so far as this can be done.

These questions of uniformity and equality are fully discussed and decided against appellant, and classifications similar to the one applied in this case are sustained in the cases cited from Kansas, Pennsylvania, the Supreme Court of the United States, Missouri, Arkansas, California, and others. While Mr. Justice Brewer, in the Kansas case, supra, suggests that prima facie a tax assessed upon the actual value of property is perhaps better calculated to approximate true equality and uniformity than this can be done by any other method, he, nevertheless, concedes that it is but a theory, and that such a method may not in all cases produce equality or uniformity. Where the burden imposed by a tax is alone considered, the foregoing method, as a general rule, may re

spond to both uniformity and equality, but where the bene fits derived from a city imposing the tax are considered in connection with the burdens thereby imposed, a tax based strictly upon a property valuation worked out by percentages may fall far short of being either equal or uniform. For example: In a city like Salt Lake, where the city provides police and fire protection and lights the streets for all alike, and defrays the expenses incident thereto out of the general funds, it is not unlikely that a merchant with a stock worth $5,000 may derive fully as much benefit from this source as one with a stock worth $50,000, and it may cost the city quite as much to protect the lesser as it does the greater. The maintaining of the streets in repair and sprinkling and flushing them applies in the same way. No method of taxation that is absolutely equal and uniform has yet been discovered. If, therefore, a flat rate upon all merchants alike should be imposed, the disparity of the tax as applied to individual cases may be much greater still than it would be by a reasonable classification of the merchants as has been done by the city in this case. It may cost the city more in proportion to provide the appellant with the necessary fire and police protection, say nothing concerning the other matters referred to, than it does to provide the same things to one of the classes above him which pays a larger tax. The classification adopted by the city, while in one sense arbitrary, cannot be said to be unreasonable as a matter of law. Its purpose is not to oppress, but rather to equalize the burden. of taxation. If a tax were levied strictly according to value, and the amount thereof ascertained by percentages upon such value, may it not, for the same reasons we have stated, perhaps be less equal and uniform than it is by the present method? This is, we think, well illustrated by the late case cited from California. It is also illustrated by the cases which uphold the flat rate upon all merchants and business men alike. Numerous other illustrations might be made, and some others are given in the cases cited, why the method to be pursued in imposing taxes of the character now under consideration must, to a very large extent, be left to the dis

cretion of those whose duty it is to impose and collect them. Where neither the Constitution nor the statute imposes absolute restrictions, the courts may not arbitrarily impose any unless it clearly appears that the tax imposed is oppressive, or clearly and unreasonably discriminatory, and thus is an abuse of the taxing power. Under the very numerous decisions of the courts of this country, emanating, as they do, from the highest federal and state courts, the questions with regard to the uniformity and equality, as well as the method of classification pursued by the city in this case, are no longer open questions. All of them have been settled adversely to the contention of appellant. Matthews v. Jensen, 21 Utah, 207, 61 Pac. 303, does not announce a doctrine contrary to the cases above referred to. In that case the power of imposing the license was involved. What is there said about classification and uniformity was applied to the imposition of the license fee under the police, and not under the taxing, power of the state. That decision, therefore, has no controlling influence upon the question involved in the case at bar.

Finally, it is urged that the ordinance is invalid because it imposes a penalty by fine or imprisonment for failure to pay a mere property tax, which penalty is not imposed for a failure to pay taxes generally. If we assume that this part of the ordinance were void for the reasons stated, it would still not affect the validity of the tax. (Mageneau v. City of Fremont, 30 Neb. 854, 47 N. W. 280, 9 L. R. A. 786, 27 Am. St. Rep. 436.) In 2 Cooley on Taxation (3d Ed.), p. 438, the author, after stating that the constitutional provision against imprisonment for debt does not apply, says: "In case of license taxes it is still customary to provide for arrest and imprisonment as a means of enforcing payment." A large number of cases are cited in support of the text. In Rosenbloom v. State, 64 Neb. 342, 89 N. W. 1053, 57 L. R. A. 922, the former decisions of the Supreme Court of Nebraska. holding to the contrary are overruled. The Supreme Court of Nebraska in the latter case brings itself into harmony with the great weight of authority in holding that arrest, fine, and imprisonment may be resorted to for the purpose of enforcing

payment of license and occupation taxes. The decisions from a large number of the state courts are cited in the latter Nebraska case, and we shall do no more than to refer the reader to that case for the decisions upon this point.

From what has been said it follows that the ruling of the district court was in accordance with the great weight of authority, and the judgment is accordingly affirmed with costs to respondent.

MCCARTY, C. J., and STRAUP, J., concur.

CHADWICK v. ARNOLD et al.

No. 1841. Decided April 4, 1908 (95 Pac. 527).

1. TRIAL-FINDINGS OF COURT SUFFICIENCY-CONCLUSIONS-FINDINGS OF FACT-SEPARATE STATEMENT of. In an action to have the holder of the legal title of certain real estate adjudged a mere holder of the title in trust for plaintiff's benefit, by reason of a verbal contract entered into between plaintifi and the person from whom, with notice, defendant acquired his title whereby such person agreed to convey the realty to plaintiff upon receipt of a certain sum, a finding that no enforceable contract existed between the plaintiff and such person was insufficient under Revised Statutes 1898, sec. 3169, requiring that the facts found and the conclusions of law be separately stated.

2. VENDOR AND PURCHASER-BONA FIDE PURCHASERS-NOTICE-EVI DENCE. In an action to have the holder of the legal title of certain real estate adjudged to hold it in trust for plaintiff, evidence examined, and held to show that defendant acquired the title to the property with actual notice of plaintiff's rights.

3. FRAUDS, STATUTE OF-CONTRACTS WITHIN ORAL CONTRACTS-SALE OF LAND. A mere oral agreement to purchase land from another

is within the statute of frauds.

4. TRUSTS-CONSTRUCTIVE TRUSTS-RESULTING TRusts-ContraCTS CREATING. Where a person having no interest in certain real estate orally agrees with another that the latter should purchase it with his own funds, taking the title in his name, and that he should thereafter convey it to the first person at an agreed price, no resulting or constructive trust arises.

5. FRAUDS, STATUTE OF CONTRACTS WITHIN. A contract whereby one person agrees to use his own funds to purchase certain real estate in which the other party to the contract has no interest, taking the title in his own name, and to thereafter convey the property to the other party upon an agreed price, is within the statute of frauds.

6. TRUSTS-CONSTRUCTIVE TRUSTS-"TRUST EX MALEFICIO." A trust ex maleficio arises whenever a person acquires the legal title to property of another by means of an intentional false or fraudulent verbal promise to hold the same for a certain purpose, and, having thus obtained the title, retains and claims the property as his own.

7. DAME-CREATION. A verbal contract was entered into between a person who was both the legal and equitable owner of certain real estate, subject only to a mortgage, and another who agreed to bid in the property on foreclosure sale, obtain a sheriff's deed therefor, and thereafter to convey the title to the owner for a certain sum, relying upon which agreement the owner failed to make an appearance at the foreclosure sale, whereby the land was bid in by the other party to the agreement for about one-third of its value. Before such person received the sheriff's deed, and within the period within which the property could have been redeemed, the owner paid to such person a portion of the price which he was to pay, which was received and applied on the amount to be paid as a prerequisite to the conveyance of the title. After obtaining title such person asserted his ownership to the property, and refused to convey it according to the agreement. Held, that a trust ex maleficio arose, enforceable though the contract was not in writing as required by the statute of frauds.

8. VENDOR AND PURCHASER-RIGHTS OF PURCHASER-BONA FIDE PURCHASERS- -NOTICE. A purchaser of property from a party holding the legal title in trust for another, with notice of the existence of the trust, is in no better position to assert title than the person from whom he purchased.

9. TRUSTS-ESTABLISHMENT-PROCEEDINGS-JUDGMENT. Where, in an action to adjudge, the holder of the legal title to certain property a trustee for the benefit of another, the evidence showed the existence of a trust ex maleficio, the fact that plaintiff based her right to recover by demanding by her pleadings the specific performance of an oral contract by the defendant's vendor to convey the property to her for a certain sum, though the mortgage indebtedness against the property, which defendant's vendor removed, was more than twice such sum, and though it would be inequitable and unjust to defendant to compel the reconveyance of the property by defendant to plaintiff for the contract sum, did not preclude plaintiff from obtaining relief, as the relief granted by equity, where a trust ex maleficio is raised, is not founded on the specific performance of an oral contract, but upon the principle that equity curns the fraudulent procurer of the legal title into a trustee, and, by raising such a trust by con34 Utah-4