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49 85

..3, 36, 86, 90 ...7, 13, 15, 16, 18, 24, 26, 45, 46, 68, 77 .1, 2, 25 47, 71, 72 38 .32, 52, 84

2, 3, 27, 29, 56, 70, 82, 89 ...5, 48, 73 ..11, 64, 66 1. Bankruptcy-Executory Contract.-An executory contract by a corporation for the purchase of its own stock cannot be made the basis of a claim against its estate in bankruptcy, thus permitting the selling stockholder to share with creditors in its assets.-Keith v. Kilmer, U. S. C. C. A. 261 Fed. 733.

2. Tracing Fund.-To entitle a depositor to recover the amount of checks deposited in an insolvent bank and uncollected on the date of its bankruptcy as a trust fund, he must identify and trace the proceeds into some fund or property which came into his hands of the trustee, and cannot so recover, where the checks had been deposited to the credit of bankrupt in other banks, which applied their proceeds on indebtedness of bankrupt to them.-In re Jarmulowsky, U. S. C. C. A. 261 Fed. 779.

3. Banks and Banking-Drawee Bank.-Under the Negotiable Instruments Law, a drawee bank is presumed to know the signature of the purported drawer of a check.-Minnehaha Nat. Bank of Sioux Falls v. Pence, S. D. 176 N. W. 37.

4. Bills and Note-Interest.-Where plaintiff bank executed its accommodation note for $5,000 and interest to defendant bank, which thereafter deducted the amount of the note and interest, $5,208.63, from the account of the plaintiff, plaintiff was entitled to recover of defendant the amount so deducted.-First State Bank of Lucca v. First Nat. Bank, N. D., 176 N. W. 4.

5.

Boundaries--Survey. In a suit to quiet title, evidence of a surveyor who had made a mere visual survey without actual measurements or determination of the exact course of a boundary stream, although professionally competent to make such survey, was merely nonexpert evidence and incompetent to prove the location and direction of the stream, or to contradict or impeach the official government survey.-Rue v. Oregon & W. R. Co., Wash., 186 Pac. 1074.

6. Carriers of Goods-Value of Goods.-A contract fairly entered into by a shipper and a carrier, declaring the value of goods accepted for shipment, is binding upon the shipper in an action for the loss of such property.-Noone v. Southern Express Co., Fla., 83 So. 607.

7. Carriers of Passenger Ordinary Care.Where defendant's employe, having transportation, was killed by one of defendant's interurban cars while crossing the track to board the same, the absence of statute or ordinance regulating the speed of defendant's cars while passing the station was immaterial, the operatives of the car owing the duty of using ordinary care to discover and avoid injuring persons who might be expected to be at the station.-Texas Electric Ry. v. Stewart, Texas, 217 S. W. 1081.

8. Res Ipsa Loquitur.-First count of passenger's complaint against street railroad, alleging that he was sitting close to the rear of the car, using due care, when, through the negligence of the road, car ran off track and street and into stump of a tree, by reason of which passenger was thrown out of his seat, across the aisle, and against a seat on the other side, held demurrable as not specifying any act of negligence causing the car to leave the track.Redding v. Wilmington & Philadelphia Traction Co., Del., 108 Atl. 739.

9. Chattel Mortgages Constructive Notice.After the due filing of a chattel mortgage, third parties are charged with notice of its contents to the same extent as if they had actual notice, and with notice of everything in instrument connected with description of mortgaged property which suggests inquiry as to identity of property intended to be mortgaged which, if pursued, would lead to an identification thereof. -First Nat. Bank v. Atchison, T. & S. F. Ry. Co., Okla., 186 Pac. 1086.

10.-Equity.-Where a judgment creditor sold a mortgaged chattel under execution and bought it in at a necessarily reduced price, it would be inequitable in an ordinary case for a court of equity to set aside the mortgage, for that would enable the judgment creditor to retain the property free from any lien having necessarily procured it at a reduced price.-Dey v. Moody, N. J., 108 Atl. 757.

11. Inconsistent Election.-An effort to recover from a trustee in bankruptcy brick for which plaintiff held a bill of sale, in effect a chattel mortgage, executed by the bankrupt, was not an election inconsistent with his right to sue defendant for converting another part of the brick prior to the bankruptcy proceedings. -Ullman v. Austin, Wis., 176 N. W. 60.

12. Compromise and Settlement-Mistake.Where, through mistake, certain stock certificates were issued to a contractor with the company entitled to be paid for his work in stock, there was no settlement between the parties.

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15. Public Policy.-A contract between business college and a pupil, requiring the pupil to board in homes approved by the college, is not contrary to public policy.-Castleberry v. Tyler Commercial College, Tex., 217 S. W. 1112.

16.- -Substantial Performance.-A contract must be at least substantially performed according to the terms of agreement before a party can have any right of action thereon.-Enterprise Co. v. Neely, Tex., 217 S. W. 1088.

17. Conversion-Equity.-Where an executor is directed to sell land and divide the proceeds, the land is converted into personal property.Cranstoun v. Westendorf, N. J., 108 Atl. 776.

18. Corporations-Estoppel.-Where property was sold to a corporation acting through its manager, was purchased for the use and benefit of the corporation, and the latter ratified the contract and the security mortgages by accepting and using the property, it is estopped to deny the validity of the security instruments, though they were executed prior to its legal organization as a corporation, and its successors are also bound by such ratification and estoppel. -Thorndale Mercantile Co. v. Continental Gin Co., Tex., 217 S. W. 1059.

19. -Foreign Corporation.-Unless defendant foreign corporation is doing business in the state, the temporary or permanent residence of its president in the state does not bring it within the state, so that service upon him will constitute service upon it.-Wollman v. Newark Star Pub. Co., N. Y., 179 N. Y. S 899.

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20. Personal Act of Officer. Where the holder of an option on mining claims became director and officer of a company formed operate such claims after exercise of the option, the company was not charged with knowledge of the officer's fraud on the owner of the claims; he having acted wholly for himself.-Keyworth v. Nevada Packard Mines Co., Nev., 186 Pac. 1110.

21. Receiver.-Receiver should not bring action against directors and corporations to impound assets fraudulently obtained from corporation by the directors without authority from court by which he was appointed.-Cahall v. Lofland, Del., 108 Atl. 752.

22. Covenants-Restrictions.-A grantor's release of restrictive covenants does not preclude other parties, to whom he made deeds previously, enforcing or makes them subsequently, from their rights against any purchaser violating the restrictive covenants.-Muller v. Weiss, N. J., 108 Atl. 768.

23. Criminal Law-Instructions.-Instructions that are argumentative, rhetorical, and redundant are improper.-Gottlieb v. Commonwealth, Va., 101 S. E. 872.

24. Principal.--One may be a principal who is not bodily present when the offense is committed.-Middleton v. State, Tex., 217 S. W. 1046. 25. Death-Interest in Tort.-Interest is not allowable in admiralty on a tort claim for death of a seaman prior to liquidation of the claim, although a number of other claims, similar, except for amount of damages, were liquidated at a prior date.-Union Steamboat Co. v. Fitzgibbons, U. S. C. C. A., 261 Fed. 768.

26. Remarriage of Plaintiff.-In a wife's action for the death of her husband it was not

error to charge that the jury should not consider in mitigation of damages the fact of her remarriage, inadmissible evidence as to such remarriage, introduced by defendant, having been admitted.-Texas Electric Ry. v. Stewart, Tex., 217 S. W. 1081.

27.

Divorce Alimony.-"Alimony" is an allowance in the nature of a partition of the husband's property of which the wife is entitled to a reasonable share for her maintenance.-West v. West, Va., 101 S. E. 876.

28. Condonation.-Where husband resumed relations with his wife not knowing that she had been guilty of adultery, there was no condonation, though the parties had intercourse.Van Wickle v. Van Wickle, N. J., 108 Atl. 761.

29. Contempt.-Commitment of husband to jail for failure to pay alimony should not be ordered except where it appears that husband is contumacious, but where it so appears there should be no hesitancy in imposing such penalty. -West v. West, Va., 101 S. E. 876.

30. -Contempt.-Failure of plaintiff husband, suing for divorce, to pay alimony and counsel fees awarded defendant wife, is not a ground for striking out his complaint on the wife's motion, though possibly a sufficient basis to stay all the husband's proceedings in the action.Naveja v. Naveja, N. Y., 179 N. Y. S. 881.

31. Equity-Bill of Review.-Bill of review is maintainable by a party to an original suit, or by some person holding under him or in privity to him. Stuart v. Strickland, Ala., 83 So. 600.

32. Parties and Privies.-Only parties or privies to original suit may bring petition in nature of bill of review.-Fillmore v. Morgan's Estate, Vt., 108 Atl. 841.

33.

Estoppel-Equitable Estoppel.-The doctrine of equitable estoppel rests on the doctrine that, of two innocent parties, the one who has made a loss possible must bear it; it not being necessary that the party estopped intended to mislead the other, and it not being material whether his conduct was affirmative or negative. active or quiescent-McConnell v. Hellwig, N. Y., 179 N. Y. State 882.

34. Holding Out Agent.-Where the owner of a mining claim put another in position to hold himself out as holder of an option to sell, and purchasers dealt with such other on the assumption, the owner cannot urge the agency of such other and his misconduct as ground for setting aside his deed to the purchasers, since one who makes it possible for a person to perpetrate a wrong on another must suffer the consequences.-Keyworth v. Nevada Packard Mines Co., Nev., 186 Pac. 1110.

35. Evidence-Burden of Proof.-The phrase "burden of proof." in its true sense, means the risk of nonpersuasion upon the evidence in the case, but is also used to designate the duty to forward and produce evidence.-Spilene v. Salmon Falls Mfg. Co. N. H., 108 Atl. 808. 36. -Contradictory Stipulation.-Oral dence was admissible to contradict a stipulation upon which judgment was entered, where it was alleged that it was procured by fraud.-Purinton v. Purinton, S. D., 176 N. W. 31.

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37. Inference on Inference.-One inference of fact may not be based upon another inference of fact.-Sliwowski v. New York, N. H. & H. R Co., Conn., 108 Atl. 805.

38. Execution-Inadequacy of Price.-Mere inadequacy of price was not sufficient to invali date execution sale as against the judgment debtor's grantee, where the proceedings were fair and regular and there is nothing in the record to suggest fraud or concealment.-National Realty Sales Co. v. Ewing, Utah, 186 Pac. 1103.

39. Redemption -No creditor can redeem from an execution sale unless he has a lien on the property sought to be redeemed.-Beigler v. Chamberlin, Minn., 176 N. W. 49.

40. Execmptions-Insurance. As applied to a pre-existing note of insured and his life policies. one having then no surrender value, and the other afterwards allowed to lapse, held that Act No. 189 of 1914. exempting proceeds of life insurance from liability for debt, if not secured by pledge of the policy, impaired only slightly and remotely the obligation of the pre-existing contract, and so did not violate the Constitution. -Succession of Clement, La., 83 So. 589.

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43. Gaming-Gambling Contract.-A contract of sale may be made for future deliveries of grain, even though seller has no grain on hand and will have to provide himself with the requisite quantity and quality before time of delivery; such contracts being illegal only where there is no intention to procure and deliver, or receive and pay for the grain; the contract under such circumstances being a mere wager.-Youtz v. McVean, Mo., 217 S. W. 1000. 44. Gas-Public Utility.-Where the property of a public utility, as a gas company, has increased so enormously in value since its acquisition as to render a rate permitting a reasonable return on such increased value unjust to the public, such a rate will not be fixed or permitted.-State Public Utilities Commission Springfield Gas & Electric Co., Ill., 125 N. E. 891. 45. Homicide Good Reputation.-In a prosecution for assault to murder, the good reputation of the prosecutor was not admissible in evidence as an original proposition.-Jupe v. State, Tex., 217 S. W. 1041.

V.

46. Husband and Wife-Statute of Limitations. Where a husband abandoned his wife, leaving her in possession of the community lands, which possession she retained for 16 years, the wife could not acquire title to the lands by limitations.-Hardin v. Hardin, Tex., 217 S. W. 1108.

47. Injunction-Right of Employment.-The power to preserve the public peace and to arrest and prosecute persons for crime cannot be made to support action depriving persons of their constitutional right to employ others, or to enter into employment, and injunction will lie to restrain police and other officers, when thus acting beyond lawful power.-American Steel & Wire Co. of New Jersey v. Davis, U. S. D. C. 261 Fed. 800.

48. Insurance-Application for.-In a general sense the application may be regarded as an offer to contract and the certificate of membership as an acceptance of the offer.-Supreme Assembly of United Artisans v. Johnson, Wash., 186 Pac. 1065.

49. Minimizing Damage.-Under a policy requiring insured in the event of a fire to protect the property from further damage and put it in the best possible order, the failure to do so did not prevent a recovery except for such of the property as could have been saved by the use of reasonable means at his command.-Messler v. Williamsburg City Fire Ins. Co., R. I., 108 Atl.

832.

50.- -Reinstatement.-In view of Code 1907.§ 4579, where life policy gave insured the right to have policy reinstated after default in payment of premium, by performance of specified conditions, the effect of reinstatement after compliance with such conditions was to continue in force the original policy and not to create a new policy.-Mutual Life Ins. Co. of New York v. Lovejoy, Ala., 83 So. 591.

51. Judgment-Arrest of.-Failure to state a cause of action may be urged for first time on motion in arrest of judgment.-Swift v. Central Union Fire Ins. Co., Mo., 217 S. W. 1003.

52. Collateral Attack.-The rule that a judgment by a court of competent jurisdiction will be set aside only for fraud which is extrinsic or collateral applies to strangers as well as parties to the action.-Filmore v. Morgan's Estate, Vt., 108 Atl. 841.

53. Misdescription. That defendants, in suit to set aside a fraudulent conveyance, did not call attention to the misdescription of the land in the complaint, which later entered into the decree, is not fraud, which, coupled with plaintiff's mistake, might constitute ground for equitable relief as to decree; they being under no duty to communicate the fact.-Stuart V. Strickland, Ala., 83 So. 600.

56.

Libel and Slander-Privilege.-Manufacturing company's letter written by treasurer to customer relative to misappropriation of company's funds by its former representative, who it had cause to believe was misrepresenting continuance of his connection with it, in furtherance of his own business, held privileged within the law of libel.-Vaughan v. Lyton, Va., 101 S. E. 865.

57. Master and Servant - Fellow Servant.Where plaintiff's fellow-workman operating drums controlling guy lines knew when he lowered a stone moved by a derrick that plaintiff was standing in a dangerous place, apparently unaware that it was so, when he directed his fellow workman to act, the Court properly instructed that jury might find for plaintiff on last clear chance theory.-Olson v. Fox, N. H., 108 Atl, 811.

58. Notification of Injury.-The employers, one of whom saw the injured employe a few minutes after the accident, having known practically from the time of the accident the extent and circumstances of the injury, absence of notification in the manner provided by the statute will not prevent recovery.-Smith v. White, La., 83 So. 584.

59. Respondeat Superior.-The owner of an automobile kept and used for the business and pleasure of the family is liable for its negligent operation by his wife, when driven for such purposes with his knowledge and consent.-Ulman v. Lindeman, N. D., 176 N. W. 25.

60. Mortgages-Equal Equities.-In the case of the conveyance by the mortgagor of all the mortgaged property to different purchasers at the same time, their equities must be regarded as equal, and each must contribute ratably to the discharge of the common burden. -Fullerton Savings Bank v. Des Granges, Cal., 186 Pac. 1052.

61. Foreclosure.-The statutory right to redeem from a real estate mortgage foreclosure does not exist unless the property has been delivered to the foreclosure purchaser.-Whiteman v. Taber, Ala., 83 So. 595.

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62. Suspension of Alienation.-Where executors and trustees, under a power that was void, by reason of unlawful suspension of the power of alienation, mortgaged property, judgment forclosing the mortgage, in an action wherein the executors, trustees, and heirs were all made parties defendant, and did not answer, stopped the heirs from afterwards setting up their interest against purchasers at the foreclosure sale.-Field v. Chronik, N. Y., 179 N. Y. State 891.

63.-Municipal Corporation Taxation.-The power to tax enjoyed by municipality only by virtue of express grant from state does not include the power to exempt and classify.-Jones v. Broening, Md., 108 Atl. 785.

64.

Parties-Intervention.-Judgment creditor which had garnisheed debtor's funds in a bank was entitled to intervene in action against debtor where plaintiffs therein had also by garnishment action impounded the money in possession of the bank, preventing bank from payment of money to judgment creditor; judgment creditor having "an interest in the subject-matter of the controversy" requiring that it be made a party to the action for the "due protection" of its rights, under St. 1917, § 2610.-Scheuer v. Regal Oil-Gas Burner Co., Wis., 176 N. W. 75. 65. Perjury-Instruction. Where defendant gave money to a witness in a criminal prosecution to influence him to make a statement which he dictated, though he had no personal knowledge of the facts, and knew that the witness had full knowledge and had testified to them

before the grand jury, an instruction that his honest belief that he was influencing the witness to give a truthful statement would not be a defense was called for by the evidence.-State v. Liss, Minn., 176 N. W. 51.

66. Physicians and Surgeons-Care.-Where a physician exercises that degree of care, diligence, judgment, and skill which others in good standing of same school of medicine usually exercise in same or similar localities under like or similar circumstances, having due regard to the advanced state of science at such time, failure to diagnose correctly does not render him liable. Jaeger v. Statton, Wis., 176 N. W. 61.

67. Consent to Operation.-In an action against a surgeon employed to operate for appendicities for the removal of Fallopian tubes without plaintiff's consent, the burden was on plaintiff to prove that she did not expressly or impliedly consent to their removal.-Wells v. Van Nort, Ohio, 125 N. E. 910.

68. -License.-A license to practice medicine is a privilege or franchise granted by the government.-Harris v. Thomas, Tex., 217 S. W.

1068.

Ratification.

69. Principal and Agent. Where a principal is known, but not named in the agreement, he cannot thereafter be held unless he ratifies the contract.-Tryon v. Clinch, Cal., 186 Pac. 1042.

70. Railroads Trespasser. Right of mere trespasser on railroad to recover for injury by train must be bottomed on the company's failure, after discovering him, to exercise care to avoid injuring him; no duty of lookout being owed him.-Gunter's Adm'r v. Southern Ry. Co., Va., 101 S. E. 885.

71. Removal of Causes-Jurisdiction.-To authorize removal of a cause into a particular District Court on the ground of diversity of citizenship, the cause must not only be one over which a United States District Court is given original jurisdiction in invitum, but unless plaintiff has expressly or impliedly consented to the removal, it must be one over which the selected court could have taken original jurisdiction.Isaac Kubie Co. v. Lehigh Valley R. Co., U. S. D. C., 261 Fed. 806.

72.- -Jurisdiction.-A suit in a state court for removal of an administrator held not removable, for want of jurisdiction of the federal court over the subject-mater.-White v. Keown, U. S. D. C., 261 Fed 814.

73. Sales Breach.-Where, before the time named in a contract for the delivery of manufactured articles, the manufacturing company breached the contract and notified the buyer that it would not perform it, the buyer, relying upon the breach for the recovery of damages, was not required to allege and prove ability and readiness to perform.-Citizens' Bank v. Willing, Wash., 186 Pac. 1072.

74.-Delivery. Where a contract for the sale of goods provides for their delivery at a designated point f. o. b., and where the title from the seller to the buyer passes, other terms of the contract having been complied with, the place so designated is the point of delivery, as place so designated is the point of delivery, as respects damages for buyer's refusal to accept. -R. W. Rounsayall & Co. v. H. Herstein Seed Co., N. M., 186 Pac. 1078.

75. Lost Profits.-Where the seller of logs failed to deliver as fast as agreed, and the market price declined before all were delivered, but after they should have been delivered, the buyer was entitled to recover the profits lost by reason of such decline.-Usrey Lumber Co. v. Huie-Hodge Lumber Co., La., 83 So. 578.

76.Option.-Contract, giving one party the privilege of buying grain to be delivered at a future date in return for valuable consideration paid to other party, is not a contract of sale, but an option; an option meaning a privilege.-Yontz v. McVean, Mo., 217 S. W. 1000.

77.- -Rescision.-One who depends on the equitable right to rescind a contract of sale for the buyer's fraud has the burden to prove that a subsequent purchaser, resisting the action, took the property with notice of the fraud. -Cox v. Collom, Tex., 217 S. W. 102.

78. Specific Performance Evidence. -The mere fact that lessor has agreed to sell demised premises does not bar lessee's right to specific performance of the lease, since the sale may have

ben made subject to the lease, or the purchaser may have had notice thereof.-F. B. Norman Co. v. E. I. Du Pont de Nemours & Co., Del., 108 Atl. 743.

79. Misrepresentation. The seller of land to a buyer who intended to erect an apartment house is not entitled to specific performance where he misrepresented the dimensions of the lots and also the cost of excavating the rock on the property.-Muller v. Weiss, N. J., 108 Atl. 768.

80. Rescission.-Vendee in a contract of sale of land having repudiated the transaction and attempted to rescind the contract, it was no longer necessary for the vendor, before bringing a suit for specific performance, to tender the vendee a deed or a certificate of title provided for in the contract.-Teague Inv. Co. v. Setchel, Cal., 186 Pac. 1046.

81. Trade Marks and Trade Names-Unfair Trade. It is unfair trade, for which injunction will issue, for competitors to dress their taxicabs so that by the ordinary patron they are not distinguished from those of the yellow taxicabs of complainant, which had earned a patronage and good will under a peculiar and distinctive dress of its cabs, the predominant feature being the conspicuous yellow body; defendants being barred by their intentional fraud of the plea of common property in color.-Taxi & Yellow Taxi Operating Co. v. Martin, N. J., 108 Atl. 763.

82. Vendor and Purchaser Interest. The purchaser of land involved in partition suit under contract composed of his proposal and the approving decree of the court, both silent as to the subject of interest on the purchase price and time for taking possession, is liable for interest on the unpaid purchase money from the date on which he took possession, prior to the time fixed by the contract for setlement.-Bowman v. Newton, Va., 101 S. E. 882.

83.- -Notice to Purchaser. Purchasers of premises in the possession of a lessee having knowledge of the lease are chargeable with notice of an option of purchase therein.-McClung Drug Co. v. City Realty & Investment Co., N. J 108 Atl. 767.

81. Waters and Water Courses-Nonuser of Right.-One to whom a right was conveyed to take water from a spring could not lose such right by mere nonuser; intent to abandon not being inferred from a nonuser alone.-Clement v. Rutland Country Club, Vt., 108 Atl. 843.

85. Wills-Contest.-In proceedings to contest a will where the issue is fraud, much latitude in the admission of evidence is allowed to the discretion of the trial judge, and his rulings will be reversed only for abuse of his discretion. -Awtrey v. Wood, S. C., 101 S. E. 920.

86.- -Mistake.-A mistake in a will as to the land covered by a devise may be corrected at suit of the devisee after testator's death, though the transfer by the will is voluntary.-O'Conner v. McCabe, S. D., 176 N. W. 43.

87. Power of Disposition. A qualified power of disposition, such as a power to use or dispose of property for the support of the beneficiary, does not create a fee simple, whether annexed to a life estate expressly given, or to a general devise not specifying the quality of the estate.-Shaw v. Hughes, Del., 108 Atl. 747.

88. Remainder.-A testamentary gift in remainder, expressed in terms to pay and distribute only, is generally contingent, and does not vest until the time for distribution arrives, but the rule does not apply when the gift in remainder is postponed for the conveniences of the estate, in which case the gift vests at the death of testator.-Cranstoun V. Westendorf, N. J., 108 Atl. 776.

Central Law Journal.

ST. LOUIS, MO., APRIL 16, 1920.

LIMITATIONS ON POWER OF A STATE TO TAX INCOMES OF NON-RESIDENTS.

The United States Supreme Court, in two recent opinions, handed down on the same day has settled several perplexing questions concerning the power of a state to tax the income of non-residents. (Shaffer v. Carter, and Travis v. Yale & Towne Mfg. Co., both opinions being handed down March 1, 1920.)

The opinion in the Shaffer case discusses constitutional objections to any form of income taxation assessed against non-residents, while the opinion in the Travis case discusses the power of a state to discriminate between residents and non-residents in assessing such a tax. In the Shaffer case the Oklahoma Income Tax Law providing for the taxation of the "net income from all property owned and of every business, trade or profession carried on in this state by persons residing elsewhere," was held constitutional, there being no discrimination. in assessing the tax against such non- residents. In the Travis case the New York Income Tax Law was held unconstitutional on the sole ground that non-residents subject to the tax were not allowed the same personal exemptions that were granted by the act to resident taxpayers.

income is derived; that an income tax, as against non-residents, is not only not a property tax but is not an excise or privilege tax, since no privilege is granted; the right of the non-citizen to carry on his business or occupation in the taxing state being derived, it was said, from the provisions of the federal Constitution. In reply to this contention, Justice Pitney, who wrote the opinion of the Court, said:

"States are not restricted to property taxation, nor to any particular form of excises. In well-ordered society, property has value chiefly for what it is capable of producing, and the activities of mankind are devoted largely to making recurrent gains from the use and development of property, from tillage, mining, manufacture, from the_employment of human skill and labor, or from a combination of some of these; gains capable of being devoted to their own support, and the surplus accumulated as an increase of capital. That the state, from whose laws property and business and industry derive the protection and security without which production and gainful occupation would be impossible, is debarred from exacting a share of those gains in the form of income taxes for the support of the government, is a proposition so wholly inconsistent with fundamental principles as to be refuted by its mere statement. That it may tax land but not the crop, the tree but not the fruit, the mine or well but not the product, the business but not the profit derived from it, is wholly inadmissible."

The Court then takes up the objection that to tax the income of non-residents is practically to put obstacles in the way of the exercise of the right of a citizen of another state to carry on a business in the taxing state. The Court concedes that a state may not prohibit citizens of other states from carrying on legitimate business within its borders but "it does not follow," says the Court, "that the business of nonresidents may not be required to make at ratable contribution in taxes for the support of the government. On the contrary, the very fact that a citizen of one state has the right to hold property or carry on an occu

sonable ground for subjecting such non