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Machinery Company; that the latter company ceased to conduct an active business; that the consideration paid for the property did not pass to the selling corporation, but did go directly to its trustees and for their benefit; that the selling corporation was unable to pay its indebtedness to this crossappellant; that all these facts were known to it at the time of the transfer; and that the fact of the transfer was not known to this cross-appellant. This court has held, beginning with Thompson v. Huron Lumber Company, 4 Wash. 600, 30 Pac. 741. 31 Pac. 25, and followed by a number of other decisions, that the assets of an insolvent corporation constitute a trust fund for the benefit of its creditors, and that no subterfuge will be permitted to prevent a distribution of such funds. among the creditors. The demurrer admits that the Wittler-Corbin Machinery Company was organized with the purpose of acquiring the assets of the other corporation by paying over the consideration, not to the selling company, but directly to and for the benefit of the latter's trustees. By the averments of the complaint the Wittler-Corbin Machinery Company, therefore, knowingly became a party to a scheme by which both the assets of the Corbin Machinery Company and the proceeds thereof were rendered unavailable to the latter's creditors. In such case the transfer may be set aside as fraudulent, the property subjected to the satisfaction of creditors' claims, or the grantee or transferee held liable for its value. "If a corporation conveys or transfers its property, real or personal, to an individual or another corporation, with intent to hinder, delay, or defraud creditors, or without consideration, existing creditors may sue in equity, after recovery of judgment and return of an execution thereon unsatisfied or, under some circumstances, without this, to set the conveyance or transfer aside as fraudulent, and to subject the property to the satisfaction of their claims, or to hold the grantee or transferee liable for its value." 3 Clark & Marshall on Private Corp. § 777a. See, also, cases there cited. We therefore think the complaint states a cause of action against the Wittler-Corbin Machinery Company, and that the court erred in sustaining the demurrer. The record presents the anomaly of a finding by the court that the Wittler-Corbin Machinery Company assumed the payment of debts of the other company which included this cross-appellant's claim, and yet no judgment was awarded against it. The finding was made, however, upon a trial of the issue made by appellant Hofius. The complaint did not allege that the debts were assumed by the respondent Wittler-Corbin Machinery Company, and the appeal now under discussion involves the demurrer to the complaint alone. Treating it as standing alone and without reference to the court's finding on the trial of the issue made by appellant Hofius, we nevertheless

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1. TAXATION-UNIFORMITY-POLL TAXES.

In the absence of any constitutional inhibition, the Legislature may provide for the levy and enforcement of a poll tax on any or all of the citizens of the state regardless of the question of uniformity.

2. CONSTITUTIONAL LAW-PRIVILEGES OR IMMUNITIES-POLL TAXES.

Acts 1903, p. 223, c. 119, § 1, as amended in 1905, p. 297, c. 156, providing that "every male inhabitant of this state between the ages of twenty-one and fifty years, outside the limits of an incorporated city or town, shall annually pay a road poll tax of two dollars" is not in violation of Const. art. 1, § 12, providing that no law shall be passed granting to any citizen privileges or immunities which upon the same terms shall not legally belong to all citizens. 3. SAME DUE PROCESS OF LAW.

Laws 1903, p. 223, c. 119, § 3, provides that any person, having in his employ persons liable to pay a poll tax, shall, upon demand of the collector furnish a list showing the names of the persons so employed and the wages due them, and if the amount of said poll tax be then due it shall be paid at once to the collector by said employer, and that any payment made by said employer as provided shall be a complete defense in a suit or action brought by the employé for such sum. Section 4 provides for the enforcement of such taxes by any process of civil procedure authorized by law. Ballinger's Ann. Codes & St. § 4843, provides for actions to determine conflicting claims to property, and section 4844 provides that in all actions commenced under the preceding section plaintiff may disclaim any interest in the money deposited with the clerk of court and thus avoid responsibility for costs in the action. Held, that said section 3 is not in violation of Const. art. 1, § 3. providing that no person shall be deprived of property without due process of law.

Appeal from Superior Court, Thurston County; O. V. Linn, Judge.

Action by the county of Thurston by and through its board of county commissioners, to wit, W. H. Mitchell and others, against the Tenino Stone Quarries, Incorporated. From a judgment for defendant, plaintiffs appeal. Reversed.

P. M. Troy, for appellants. Vance & Mitchell, for respondent.

ROOT, J. This action was commenced by appellants for the collection of road poll taxes

under the provisions of the statutes as found in the Session Laws of 1903, p. 223, c. 119, and as amended in 1905 and appearing at page 297, c. 156 of the published Session Laws of 1905. The poll taxes sought to be collected were those alleged to be due from certain employés of respondent. The trial court held the statute unconstitutional. From a judgment dismissing the action, this appeal is taken.

Section 1 of the act of 1903, as amended in 1905, reads as follows: "Every male inhabitant of this state between the ages of twenty-one and fifty years, outside the limits. of an incorporated city or town, shall annually pay a road poll tax of two dollars, which shall be due and payable in money without exemption whatsoever on the first day of March in each year. All poll taxes shall be paid into the district road and bridge fund of the district in which the same shall be collected." It is contended by respondent that this section of the statute is invalid as being in conflict with sections 3 and 12 of article 1 of the state Constitution, and contrary to the fourteenth amendment of the federal Constitution. The sections of the state Constitution referred to are as follows:

"Sec. 3. No person shall be deprived of life, liberty or property without due process of law."

"Sec. 12. No law shall be passed granting to any citizen, class of citizens, or corporation, other than municipal, privileges or immunities which, upon the same terms, shall not legally belong to all citizens or corporations."

In the able briefs presented by each side, the case of State v. Ide, 35 Wash. 576, 77 Pac. 961, 67 L. R. A. 280, 102 Am. St. Rep. 914, is cited and relied upon. That was a case involving the validity of an ordinance, of a city of the third class, which provided for the collection of a poll tax from every male inhabitant of the city between the ages of 21 and 50 years, and not a member of any volunteer fire company of the city. Said ordinance was enacted pursuant to the provisions of section 938, Ballinger's Ann. Codes & St. Said statute was necessarily limited by section 9 of article 7, of the state Constitution, which provides that "for all corporate purposes, all municipal corporations may be vested with authority to assess and collect taxes, and such taxes shall be uniform in respect to persons and property within the jurisdiction of the body levying the same." It was urged by the appellant in that case, and the contention was upheld by this court, that the Legislature, under the constitutional provision just quoted, had no power to authorize a municipality to enact an ordinance for the levying and enforcement of a poll tax that was not uniform as to persons; that the provision in the ordinance excepting females, firemen, and males over 50

and under 21 years of age rendered said ordinance obnoxious to this section of the Constitution. The following excerpt from the opinion rendered in that case will show what was there involved. "While it is conceded by counsel for appellant that the Leg-. islature may, in the absence of constitutional restrictions, 'confer upon a city almost supreme power over local taxation,' yet they contend that the tax in question, by reason of its lack of uniformity, is repugnant to section 9 of article 7 of our Constitution, and therefore void. That section of article 7 reads as follows: The Legislature may vest the corporate authorities of cities, towns, and villages with power to make local improvements by special assessment, or by special taxation, of property benefited. For all corporate purposes, all municipal corporations may be vested with authority to assess and collect taxes, and such taxes shall be uniform in respect to persons and property within the jurisdiction of the body levying the same.' Section 12 of article 11 of the Constitution provides that "The Legislature shall have no power to impose taxes upon * cities *** or upon the inhabitants or property thereof, for * ** city *** purposes, but may, by general laws, vest in the corporate authorities thereof the power to assess and collect taxes for such purposes.' These two provisions are the only ones relating to the vesting of the power of taxation in municipal corporations. And they clearly indicate, especially the latter, that the Legislature may authorize the taxation, by cities, of persons, as well as property, within their limits. Conceding, as we must, that the Legislature had the right. to delegate to cities of the third class the power to levy poll taxes on the inhabitants thereof, the question naturally arises whether, in this instance, they exercised the power in conformity with the Constitution."

***

It is suggested by appellants, and conceded by respondent that section 9 of article 7 does not apply to the facts of the case at bar, and further that there is no provision in the state Constitution requiring a poll tax to be uniform as to persons unless sections 3 and 12 of article 1 have that effect. The power to levy and enforce the payment of taxes is an incident of sovereignty and, under a state Constitution like ours, is vested in the lawmaking department of the government. In the absence of any constitutional inhibition, it must be conceded that the Legislature may provide for the levy and enforcement of a poll tax upon any or all of the citizens of the state, regardless of the question of uniformity. We are, therefore, brought to the question of whether said sections 3 and 12 of article 1 are infringed by the statute now before us. Respondent urges that the statute, by limiting the tax to male inhabitants between the ages of 21 and 50, discriminates in favor of, and extends

a special privilege and immunity to, all other inhabitants, within the meaning of the constitutional provision above cited, and that the enforcement of such a statute would in effect amount to the taking of property without due process of law. Appellants maintain that the nature and purpose of a poll tax is such that its application should not be universal, but by means of appropriate classifications, and that this requirement is fittingly and legally observed in the statute in question. We think this contention is sound, and should be upheld. The propriety of the enactment and enforcement of statutes providing for a poll tax has been recognized ever since, and prior to, the foundation of our government. In our own commonwealth the first statute of this character was enacted in 1854, Laws 1854, p. 331. In this and many other states, classifications similar to that here found have been provided. The reason for such classifications is found in the nature of the subject-matter itself. It was formerly the common practice and is yet, if we are not incorrectly informed, for persons subject to poll tax to "work out" said tax upon the public highways. The inappropriateness of women being called upon to render such a service to the state is readily apparent. Other reasons for the exemption of females may be found in the fact that by law they are denied various privileges held and exercised by males upon whom this tax may be levied, and it has always been the policy of the law to show some deference to women by reason of the physical limitations imposed by nature. That there is an age when, by reason of immaturity, the imposition of this public service or tax should not be made is evident, as is likewise the proposition that an age may be reached when a man should not be called upon to render this character of service or pay a per capita tax. It is contended that the fixing of the ages at 21 and 50 is arbitrary. This is true; but the nature of the subject-matter makes it essential, that arbitrary limits should be established. The same contention might be made with reference to the statute which fixes the completion of 21 years as a prerequisite to the privileges and obligations of legal manhood. Similar statutes limit the years during which one may become, or may be required to become, a member of the militia or to serve upon a jury. It is doubtless true that people between the ages of 21 and 50 years, as a class, use the highways much more than those below the one or above the other of the limits mentioned.

Anent the arbitrariness of this law, respondent suggests this question: "Why should a man 49 years of age, living upon his farm by the side of a certain road, be compelled to pay a poll tax, while his brother, 51 years of age, with equally good health and strength, living upon an adjoining farm

of like character and equal value, by the side of the same highway, is not subjected to such exactment?" The answer is simply this: Under such a law the older brother would have been subject to such tax for two years before the younger became of age. The latter will be exempt when he shall have completed the period through which the other has passed. The character and value of the property of each has no bearing upon the question. The underlying nature and purpose of a poll tax are disassociated entirely from any consideration of property. The state accords to every inhabitant, regardless of his property possessions, the protection and advantages of its laws and public institutions. By reason of these personal guaranties and benefits, it asks a tribute toward the support of the government from those beneficiaries who are physically qualified to contribute. It would be impracticable to examine and pass upon the physical ability of every individual to earn or pay this capitation tax. IIence, the adoption of a classification becomes imperative. That the average man between the ages of 21 and 50 is physically able to readily earn and contribute the amount of this tax must be conceded. That the average person in any of the three classes composed, respectively, of women, males under 21 and males over 50, is by nature far less able physically to do work or earn money, is self-evident. These distinctions, based upon the laws of nature, are such as the Legislature was abundantly justified in recognizing. "When the power of taxation is exercised, considerations of public policy must dominate; and the only rule of equality in respect to taxation is that the same means and methods shall be applied impartially to all constituents of each class, so that the law shall act equally and uniformly upon all persons in similar circumstances." 8 Cyc. p. 1071. Other states with similar constitutional provisions have for scores of years maintained and enforced poll tax statutes with practically the same classification as found in this. Long acquiescence in the existence and enforcement of such enactments, is evidence that they have not been deemed obnoxious to constitutional limitations. Fairbault v. Misener, 20 Minn. 396 (Gil. 347); Cooley, Const. Lim. (6th Ed.) 81-85. IIad the people, when preparing and adopting our state Constitution desired to change or avoid this kind of classifications in poll tax statutes, they would doubtless have used appropriate language to have clearly expressed such purpose. In view of these and other considerations that might be mentioned, we do not think that the classification made by this statute was unreasonable, unjust, or illegal. It is further contended by respondent that section 3 of the act of March 16, 1903, p. 223, c. 119, Laws of 1903, is unconstitutional in that its enforcement would constitute a taking of property without due process of law.

Said section of the statute reads as follows: "Any person, firm, corporation or company, or agent thereof, having persons in his or their employ liable to pay a poll tax as hereinbefore provided. shall upon demand duly made by such collector, furnish a list showing the names of all persons so employed, and the wages due and owing to each of such employés, and if the amount of said poll tax be then due it shall be paid at once to the collector by said employer. Any such employer refusing to furnish such list upon demand shall be deemed guilty of a misdemeanor, and upon conviction shall be fined in any sum not exceeding one hundred dollars, and may also be imprisoned in the county jail not exceeding one month. And any payment made by said employer as herein provided shall be a complete defense in any suit or action brought by the employé for such sum or sums.

It is argued that no provision is made for testing the correctness of an employé's poll tax sought by this statute to be enforced against his employer, and that the payment by the latter would not be binding upon such employé for the reason that he would be without his day in court and could recover from his employer the amount of such tax paid without his direction. In support of this contention, respondent cites the case of Baldwin v. Moore, 7 Wash. 173, 34 Pac. 461, where this court held that a statute forbid ding the county auditor to file a deed conveying any property upon which there were unpaid taxes was unconstitutional. We do not think that decision is appliable to the facts of this case. In the statute there under consideration there was no provision made for any judicial proceeding or other means of ascertainment by the auditor as to the correctness or legality of the tax shown by the record. He was arbitrarily commanded to refuse the registration of a deed if the tax records showed an unpaid tax. regardless of what he believed or knew as to the invalidity of such tax or apparent tax. In the case at bar, it is the duty of the employer to ascertain who of his employés are subject to this tax and he is not required to put upon the list the name of any servant who is not liable to pay such poll tax. If, after making a proper investigation, he reports one of his employés as liable for the payment of a poll tax when, as a matter of fact, such employé is not liable, the consequence must be attributed to his mistake, as in any other case of error, and not to any fault in the law. If, upon investigation, he finds that one of his employés claims to be not liable for said tax, and he has any reason to believe such contention correct, he may so report or refuse to put the name of such employé upon the list required by the statute. If he is sued by the county for the poll tax of an employé who claims to be not liable and as to whose liability the employer has a doubt, he may pay the amount

of such poll tax into the court where the county may summon said employé to participate in a hearing as to his liability. 2 Ballinger's Ann. Codes & St. §§ 4843, 4844. Section 4 of the act of 1903 (page 224, e. 119. Laws 1993) reads as follows: "The county commisioners or any poll tax conector may in the name of the county where any poll tax is sought to be collected, invoke in the collection of such tax any process of civil procedure authorized by law. Public officers of this state shall render any service demanded by the commissioners or any collector duly authorized by them, without charge or fee of any kind: Provided, That the county commissioners may allow in the case of public officers who receive their compensation by fees such allowance chargeable against the taxes collected as they may deem just." It will thus be seen that this section authorizes the bringing of an action by the county commissioners or poll tax collector whenever a poll tax is sought to be collected. This affords an opportunity to test the legality of the tax. ty of the tax. In this particular the statute is entirely different from that involved in the case of Baldwin v. Moore, supra, where no such provision existed. Section 4844, 2 Ballinger's Ann. Codes & St. reads as follows: "In all actions commenced under the preceding section, the plaintiff may disclaim any interest in the money, property, or indebtedness, and deposit with the clerk of the court the full amount of such money or indebtedness, or other property, and he shall not be liable for any costs accruing in said action. And the clerks of the various courts shall receive and file such complaint, and all other officers shall execute the necessary processes to carry out the purposes of this section, and also sections 4843 and 4845 of this Code, free from all charge to said plaintiff, and the court, in its discretion, shali. determine the liability for costs of the action." Under this section the employer can, without any any costs, avoid responsibility in any case where his employé disputes the legality of his poll tax; and the employé can likewise have his day in court. Perceiving nothing calculated to infringe the constitutional guaranties, and recognizing the principle that a legislative enactment should be held unconstitutional only where its invalidity is clearly evident, we are led to uphold the statute in question. As bearing upon the matters herein considered, we may cite the following authorities: Cooley, Const. Lim. (6th Ed.) 629-831, 783706, and (7th Ed.) pp. 225, 2524; Judson. Taxation, §§ 431, 434, 438, 439; Miller on the Constitution. 668; 2 Dillon, Mun. Corp. (4th Ed.) $$ 762, 817; 8 Cyc. 1049, 1071; Tiedeman, Mun. Corp. §§ 260, 260a: 27 Am. & Eng. Ene, of Law (2d Ed.) 604; State v. Ide, 35 Wash. 576, 77 Pac. 961, 67 L. R. A. 280. 102 Am. St. Rep. 914; Fleetwood v. Read. 21 Wash. 547, 58 Pac. 665, 47 L. R. A. 205; State v. Clark. 30 Wash. 439, 71 Pac. 20; State v.

Nichols, 28 Wash. 631, 69 Pac. 372; Stull y. DeMattos, 23 Wash. 71, 62 Pac. 451, 51 L. R. A. 892: Nathan v. Spokane County, 35 Wash. 26, 76 Pac. 521, 65 L. R. A. 336; Seabolt v. Northumberland Co., 187 Pa. 318, 41 Atl. 22; Hall v. Judge of Superior Court of Grand Rapids, 88 Mich. 438, 441, 50 N. W. 289; Francis v. Railroad Co., 19 Kan. 303; Sawyer v. City of Alton, 4 Ill. 126; Dennis v. Simon, 51 Ohio St. 233, 36 N. E. 832; Kuntz v. Davidson, 74 Tenn. 65; Fairbault v. Misener, 20 Minn. 396 (Gil. 347); State v. Womble, 112 N. C. 862, 17 S. E. 491, 19 L. R. A. 827.

The judgment of the honorable superior court is reversed, and the case remanded for further proceedings not inconsistent herewith.

MOUNT, C. J., and DUNBAR, CROW, RUDKIN, FULLERTON, and IIADLEY, JJ., concur.

(44 Wash. 4891

GROVER v. ZOOK. (Supreme Court of Washington. Nov. 24, 1906.) BREACH OF MARRIAGE PROMISE -DEFENSESILL IIEALTH.

In view of Laws 1899, p. 118, c. 71, § 5, and other statutes having for their purpose the prevention of the spread of pulmonary tubercu losis, on grounds of public policy, a man was not liable for breach of a marriage promise, where the woman was suffering with such disease though he knew that she had the disease at the time of the engagement.

[Ed. Note. For cases in point, see Cent. Dig. vol. 8, Breach of Marriage Promise, § 10.]

Appeal from Superior Court, King County; R. B. Albertson, Judge.

Action by Rosena E. Grover against James E. Zook. From a judgment in favor of plaintiff, defendant appeals. Reversed and re.manded, with instructions to dismiss the action.

John E. Humphries, George B. Cole, and William E. Humphrey, for appellant. John B. Hart, for respondent.

ROOT, J. This is an action by respondent to recover damages against appellant for breach of contract of marriage. From a judgment in favor of respondent, the case comes here on appeal.

The principal defense urged by appellant is that respondent, at the time of the mutual promises of marriage, was afflicted with pulmonary tuberculosis (commonly called consumption), in an incurable form, and has ever since been physically incapable of entering into the marriage relation. It was the contention of the respondent in the trial court and here that this condition of respondent constitutes no defense to her action, for the reason that appellant knew thereof at the time he promised to marry her. It is admitted by respondent that she was afflicted with this disease at the time the engagement

of marriage was entered into, although she claims that she did not know at that time that the malady affecting her was consumption. There is a conflict in the evidence as to whether or not appellant knew of the character of her illness at the time of the engagement. gagement. He swears that he did not. The question of whether or not he did turns upon the question as to when the engagement took place. He claims that they became engaged on the evening of the 6th of January, 1904. She and her mother and stepfather claim that the engagement did not take place until the 10th of January, 1904. It appears that they had some talk about the matter on the evening of January 6th, and it is admitted that she at that time took from her finger a ring, and gave it to him to take to the jeweler's to be used as a measurement for an engagement ring. He took the ring, used it for that purpose, and presented her with the engagement ring on the next Sunday, January 10th. Her mother and stepfather testify that on the latter date they informed appellant that the ailment from which respondent was suffering was consumption, that this information was given him while she was not present, that he said he would marry her notwithstanding this, and that it was then planned by them that she should be sent to Arizona, where it was believed that the climate would cure or ameliorate her diseased condition. Appellant denies that he knew of the character of her ailment until after she had gone to Arizona. Her mother testified that she informed respondent of the nature of the malady after she reached Ari

A correspondence was maintained during the time she was there, between herself and appellant; he making her many suggestions as to taking care of herself, and as to the character of treatment she should follow, and sending her books and pamphlets giving such information and directions. She returned in the following April much improved. as she believed. However, she had an attack of appendicitis, necessitating an operation, which seriously weakened her. She was in the hospital 16 days on account of this operation, leaving there on the 16th of May. It was understood between them that their marriage was to take place in June. On account of her physical condition in June, it was mutually agreed that the marriage should be postponed until autumn. When the latter season arrived, she and her parents requested appellant to carry out his promise of marriage. It seems that there had been an understanding between them that they would get married and attend the World's Fair in St. Louis, in September or October. She and her parents urged upon appellant the carrying out of this plan. He insisted that she was physically unable to be married, but that he would marry her when she recovered. The controversy growing out of the matter occasioned strained relations between the parents and appellant, and he visited their

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