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find, for the reasons assigned, that it states a cause of action.

The judgment against appellant Hofius is affirmed, but that part of the judgment which is in favor of the Wittler-Corbin Machinery Company is reversed, and the cause is remanded, with instructions to vacate that part of the judgment and overrule the demurrer to the complaint. The respondent and crossappellant Carstens & Earles, Inc., shall recover its costs on both appeals.

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

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. Iluron Lumber Company, 4 Wash. 600, 30 Pac. 711, 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 (reditors, 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 (reditors, 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 inade by appellant Hofius, we nevertheless

(44 Wash. 351) THURSTON COUNTY V. TENINO STONE

QUARRIES, INC. (Supreme Court of Washington. Nov. 10,

1906.) 1. TAXATION-UNIFORMITY-POLL TAXES.

In the absence of any constitutional inhibition, the Legislature may provide for the levy and enforcement of a poil 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 4814 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 , and under 21 years of age rendered said in the Session Laws of 1903, p. 223, c. 119, ordinance obnoxious to this section of the and as amended in 1905 and appearing at Constitution. The following excerpt from page 297, c. 156 of the published Session the opinion rendered in that case will show Laws of 1905. The poll taxes sought to be what was there involved. “While it is concollected were those alleged to be due from ceded by counsel for appellant that the Legcertain employés of respondent. The trial islature may, in the absence of constitutional court held the statute unconstitutional. restrictions, 'confer upon a city almost suFrom a judgment dismissing the action, this

preme power over local taxation,' yet they appeal is taken.

contend that the tax in question, by reason Section 1 of the act of 1903, as amended of its lack of uniformity, is repugnant to in 1905, reads as follows: "Every male in section 9 of article 7 of our Constitution, habitant of this state between the ages of and therefore void.

and therefore void. That section of article twenty-one and fifty years, outside the limits

7 reads as follows: "The Legislature inay of an incorporated city or town, shall annu vest the corporate authorities of cities, towns, ally pay a road poll tax of two dollars,

and villages with power to make local imwhich shall be due and payable in money

provements by special assessment, or by without exemption whatsoever on the first

special taxation, of property benefited. For day of March in each year. All poll taxes all corporate purposes, all municipal corshall be paid into the district road and

porations may be rested with authority to bridge fund of the district in which the

assess and collect taxes, and such taxes shall same shall be collected.” It is contended by

be uniform in respect to persons and properrespondent that this section of the statute

ty within the jurisdiction of the body levyis invalid as being in conflict with sections ing the same.' Section 12 of article 11 of :3 and 12 of article 1 of the state Constitu the Constitution provides that 'The Legistion, and contrary to the fourteenth amenil- lature shall have no power to impose taxes ment of the federal Constitution. The sec

upon * * * cities *

or upon the tions of the state Constitution referred to inhabitants or property thereof, for *

* itre as follows:

city * * * purposes, but may, by general “Sec. 3. No person shall be deprived of laws, vest in the corporate authorities therelife, liberty or property without due process of the power to assess and collect taxes for of law."

such purposes. These two provisions are “Sec. 12. No law shall be passed granting the only ones relating to the vesting of the to any citizen, class of citizens, or corpora power of taxation in municipal corporations. tion, other than municipal, privileges or im And they clearly indicate, especially the latmunities which, upon the same terms, shall

ter, that the Legislature may authorize the not legally belong to all citizens or corpora- | taxation, by cities, of persons, as well as tions."

property, within their limits. Conceding, as In the able briefs presented by each side, we must, that the Legislature had the right the case of State v. Ide, 35 Wash, 576, 77 to delegate to cities of the third class the P:c. .961, 67 L. R. A. 280, 102 Am. St. Rep. power to levy poll taxes on the inhabitants 914, is cited and relied upon. That was a thereof, the question naturally arises whethfase involving the validity of an ordinance, er, in this instance, they exercised the power of a city of the third class, which provided in conformity with the Constitution." for the collection of a poll tax from every It is suggested by appellants, and conmale inhabitant of the city between the ages ceded by respondent that section 9 of article of 21 and 50 years, and not a member of any 7 does not apply to the facts of the case at volunteer fire company of the city. Said bar, and further that there is no provision ordinance was enacted pursuant to the pro in the state Constitution requiring a poll visions of section 938, Ballinger's ann. Codes tax to be uniform as to persons unless sec& St. Said statute was necessarily limited tions 3 and 12 of article 1 have that effect. by section 9 of article 7, of the state Consti

The power to levy and enforce the payment tution, which provides that "for all corporate of taxes is an incident of sovereignty and, purposes, all municipal corporations may be

under a state Constitution like ours, is vested vested with authority to assess and collect

in the lawmaking department of the governtaxes, and such taxes shall be uniform in re

ment. In the absence of any constitutional spect to persons and property within the inhibition, it must be conceded that the Legjurisdiction of the body levying the same.” islature may provide for the levy and enIt was urged by the appellant in that case, forcement of a poll tax upon any or all of and the contention was upheld by this court, the citizens of the state, regardless of the that the Legislature, under the constitutional

question of uniformity. We are, therefore, provision just quoted, had no power to au brought to the question of whether said secthorize a municipality to enact an ordinance tions 3 and 12 of article 1 are infringed by for the levying and enforcement of a poll the statute now before us. Respondent urtax that was not uniform as to persons; ges that the statute, by limiting the tax to that the provision in the ordinance except male inhabitants between the ages of 21 and ing females, firemen, and males over 50 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 thie 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 (nactment 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 1834, 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 be. come, 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.

p. 1071. Other states with similar constitutional provisions have for scores of year's 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. 317); Cooley, Const. Lim. (6th Ed.) 81-8.5. 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: ! of such poll tax into the court where the "Any person, firm, corporation or company, county may summon said employé to particor agent thereof, having persons in his or ipate in a hearing as to his liability. 2 their employ liable to pay a poll tax as herein Ballinger's Ann. Codes & St. $8 +S4:3, 1841. before provided, shall Won demand duly Sertion of the act of 1903 (page 221, 4. 119. made by such collector, furnish a list showing Laws 1993) reads as follows: "The county the names of all persons so employeci, and the commisioners or any poll tax collector may wages (lue and owing to each of such ein in the name of the county where any poll tax ployés, and if the amount of said poll tax is sought to be collected, invoke in the rolbe then due it shall be paid at once to the lection of such tax any process of civil procollector by said employer. Any such em- : ceclure authorized by law. Public officers of ployer refusing to furnish such list upon this state shall render any service demandel demand shall be deemed guilty of a mis- by the commissioners or any collector duly clemeanor, and upon conviction shall be finel authorized by them, without charge or fee in any sum not exceeding one hundred dol of any kinel: Provided, That the county lars, and may also be imprisoned in the commissioners may allow in the case of pubcounty jail not exceeding one month. And lic officers who receive their compensation any payment made by said employer as by fees such allowance chargeable against herein provided shall be a complete defense the taxes collected as they may deem just." in any suit or action brought by the employé It will thus be seen that this section aufor such sum or sus.

thorizes the bringing of an action by the It is argued that no provision is nade for county commissioners or poll tax collector testing the correctness of an employé's poll whenever a poll tax is sought to be collectei. tax sought by this statute to be enforced This affords an opportunity to test the legiiliagainst his employer, and that the payment ty of the tax. In this particular the statute hy the latter would not be binding upon such is entirely different from that involved in employé for the reason that he would be the case of Baldwin v. Moore, supra, where without his clay in court and could recover no such provision existeil. Section 1814, 2 from his employer the amount of such tax Ballinger's Ann. Codes & St. reads as follows: paid without his direction. In support of “In all actions commenced under the precedthis contention, respondent cites the case of ! ing section, the plaintiff may disclaim any Baldwin v. Moore, 7 Wash. 173, 34. Par. 161, interest in the money, property, or indebtwhere this court held that a statute forbid- : edness, and deposit with the clerk of the ding the county auditor to file a deed con- : court tlie full amount of such money or inveying any property upon which there were debtedness, or other property, and he shall unpaid taxes was unconstitutional. We do not be liable for any costs accruing in said not think that decision is appliable to the action. And the clerks of the various courts facts of this case. In the statute there - shall receive and file such complaint, and der consideration there was no provision , all other officers shall execute the necessary made for any judicial proceeding or other i processes to carry out the purposes of this means of ascertainment by the auditor as sertion, und also sections 1843 and 1815 or to the correctness or legality of the tax this Code, free from all charge to said plainshown by the record. Ile was arbitrarily tiff, and the court, in its discretion, shali . commanded to refuse the registration of a determine the liability for costs of the deed if the tax records showed an unpaid action." Under this section the employer tax, regardless of what he believed or knew (in, without anycosts, avoid responsias to the invalidity of such tax or apparent bility in any case where

his employ tax. In the case at bar, it is the duty of the disputes the legality of his poll tax; iind employer to ascertain who of his employés | the employé can likewise have his day in are subject to this tax and he is not required court. Perceiving nothing calculated to into put upon the list the name of any servant fringe the constitutional guaranties, and plus who is not liable to pay such poll tax. If, ognizing the principle that a legislative after making a proper investigation, le re enactment should be hell unconstitutional ports one of his employés as liable for the only where its invalidity is clearly evident, payment of a poll tax when, as a matter of We are led to upnold the statute in question. fact, such employé is not liable, the conse As bearing upon the matters herein considerquence must be attributed to his mistake, ed, we may cite the following authorities: as in any other case of error, and not to Cooley, Const. Lim. 6th Fil.) 029—5:1, 743any fault in the law. If, upon investigation, 706, and (7th Ed.) pp. 2:2), 2.721; Judsoll, Titxhe finds that one of his employés claims to ation, $$ 131, 134, 138, 139; Miller on the t'onbe not liable for said tax, and he has any stitution, 668; 2 Dillon, Mun. Corp. (4th Excl.) reason to believe such contention correct, he $$ 702, 817; 8 Cyc. 1019, 1071; Tiedeman, Mun. may so report or refuse to put the name of ('crl). $S209), 260a: 27 Am. & Eng. Ina, of such employé upon the list required by the Law (20 Ed.) 604; State v. Ide, 3: Wilsh. statute. If he is sued by the county for the 5176, 77 Pac. 961, 67 L. R. A. 280. 102 m. poll tax of an employé who claims to be St. Rep. 914; Fleetwood v. Read. 21 Wash. not liable and as to whose liability the em 547, 58 Pac. 66.), 47 L. R. A. 20.7; State v. ployer has a doubt, he may pay the amount Clark, 30 Wash, 139, 71 Pac. 20; State v.

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Nichols, 28 Wash. 631, 69 Pac. 372; Stull y. of marriage was entered into, although she DeMattos, 23 Wash. 71, 62 Pac. 451, 51 L. claims that she did not know at that time R. A. 892: Nathan v. Spokane County, 35 that the malady affecting her was consumpWash. 26. 76 Pac. 521, 6.7 L. R. A. 336; Sea tion. There is a conflict in the evidence as bolt v. Northumberland Co., 187 Pa. 318, 41 to whether or not appellant knew of the charAtl. 22; Hall F. Judge of Superior Court of acter of her illness at the time of the enGrand Rapids, 88 Mich. 438, 411, 50 N. W. gagement. He swears that he did not. The 289; Francis v. Railroad Co., 19 Kan. 303; question of whether or not he did turns upon Sawyer v. City of Alton, 4 Ill. 126; Dennis v. the question as to when the engagement took Simon, 51 Ohio St. 233, 36 X. E. S32; Kuntz place. Ile claims that they became engaged 1. Davidson, 74 Tenn. 6.5; Fairbault v. Mis on the evening of the 6th of January, 1904. ener, 20 Minn, 396 (Gil. 317); State v. Wom She and her mother and stepfather claim ble, 112 N. C. 862, 17 S. E. 491, 19 L. R. A. that the engagement did not take place until S27.

the 10th of January, 1901. It appears that The judgment of the honorable superior they had some talk about the matter on the court is reversed, and the case remanded for evening of January 6th, and it is admitted further proceedings not inconsistent here that she at that time took from her finger with.

a ring, and gave it to him to take to the

jeweler's to be used as a measurement for MOUNT, C. J., and DUNBIR, CROW, an engagement ring. He took the ring, used RUDKIN, FULLERTON, and HADLEY, JJ., it for that purpose, and presented her with concur.

the engagement ring on the next Sunday, January 10th. Her mother and stepfather

testify that on the latter date they informed (44 Wash. 4897

appellant that the ailment from which reGROVER v. ZOOK.

spondent was suffering was consumption, that (Supreme Court of Washington. Nov. 21, 1906.) this information was given him while she was BREACH OF MARRIAGE PROMISE -DEFENSES not present, that he said he would marry ILL IIEALTII.

her notwithstanding this, and that it was In view of Laws 1899, p. 118, c. 71, § 5, and other statutes having for their purpose the

then planned by them that she should be prevention of the spread of pulmonary tubercu sent to Arizona, where it was believed that losis, on grounds of public policy, a man was not the climate would cure or ameliorate her liable for breach of a marriage promise, where

diseased condition. Appellant denies that he the woman was suffering with such disease though he knew that she had the disease at the

knew of the character of her ailment until time of the engagement.

after she had gone to Arizona. Her mother [Ed. Note.--For cases in point, see Cent. Dig. testified that she informed respondent of the vol. 8, Breach of Marriage Pronise, $ 10.]

nature of the malady after she reached AriAppeal from Superior Court, King County ;

zona. A correspondence was maintained durR. B. Albertson, Judge.

ing the time she was there, between herself Action by Rosena E. Grover against James

and appellant; he making her many suggesE. Zook. From a judgment in favor of plain

tions as to taking care of herself, and as to

the character of treatment she should follow, tiff, defendant appeals. Reversed and re. manded, with instructions to dismiss the

and sending her books and pamphlets giving

such information and directions. She reaction.

turned in the following April much improved, John E. Humphries, George B. Cole, and

as she believed. However, she had an atWilliam E. IIumphrey, for appellant. John

tack of appendicitis, necessitating an operaB. Hart, for respondent.

tion, which seriously weakened her. She was

in the hospital 16 days on account of this ROOT, J. This is an action by respondent operation, leaving there on the 16th of May. to recover damages against appellant for

It was understood between them that their breach of contract of marriage. From a marriage was to take place in June. On acjudgment in favor of respondent, the case count of her physical condition in June, it comes here on appeal.

was mutually agreed that the marriage should The principal defense urged by appellant be postponed until autumn. When the latter is that respondent, at the time of the mutual season arrived, she and her parents requestpromises of marriage, was afflicteil with pul ed appellant to carry out his promise of marmonary tuberculosis (commonly called con

riage. It seems that there had been an unsumption), in an incurable form, and has derstanding between them that they would ever since been physically incapable of enter get married and attend the World's Fair in ing into the marriage relation. It was the St. Louis, in September or October. She and contention of the respondent in the trial court her parents urged upon appellant the carryand here that this condition of respondent | ing out of this plan. IIe insisted that she constitutes no defense to her action, for the was physically unable to be married, but that reason that appellant knew thereof at the

he would marry her when she recovered. time he promised to marry her. It is ad The controversy growing out of the matter mitted by respondent that she was afflicted occasioned strained relations between the with this disease at the time the engagement | parents and appellant, and he visited their

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