(248 S.W.) year 1920 to his said codefendant Srite for the collection of said tax, and unless restrained by the judgment of this court all these things defendant Ferril will do. "The plaintiff further alleges that defendant Srite is planning and proposing to enforce against this plaintiff the collection of said taxes against the said income for the year 1919 of this plaintiff, assuming to act in so doing under the authority of said pretended statutes, exercising, in so doing, the powers of his office of collector of the revenue. And defendant Srite is preparing and declares that he will enforce, within the time and in the manner designated by said pretended statutes, the collection against plaintiff of taxes against his said income for the year 1920, as assessed, computed, and extended upon the tax book to be delivered to him all as herein alleged, and all this he will do, unless enjoined and restrained by the judgment of this court. And all these things the said defendants will do with respect to incomes for the years 1919 and 1920, received and to be received by all other persons and corporations who stand in like situation with this plaintiff unless enjoined from so doing. "Plaintiff further states that, as he has hereinbefore alleged, he is a resident of Buchanan county in the state of Missouri; that he is the owner of personal and real property located in said county and state to the assessed value of $15,000; that there has been assessed against said property taxes for state and county purposes for the years 1919 and 1920, and that he has paid the taxes thereon for the year 1919 and will be required to pay and will pay the taxes thereon for the year 1920, when due for state and county purposes; that, in the assessment, computation, extension into a tax book, and collection of the tax against his said income for the year 1919 and of the tax against his said income for the year 1920, and against the incomes for the years 1919 and 1920 of all other persons and corporations similarly situated with this plaintiff, the defendants herein declare that they will expend county and state funds, derived in part from taxes paid by him upon his said property and derived in part from general taxes for state and county purposes, paid into the general revenues of the county and state by all other persons and corporations paying such general taxes in said county, and unless restrained and enjoined by this court, this defendants will do. section 7 of article 10, whereby all laws exempting property from taxation except as therein enumerated shall be void; section 8. of article 10, wherein a limitation is placed upon the state tax upon property; section 2 of article 10, whereby the power to tax corporations and corporate property shall not be surrendered or suspended by the act of the General Assembly; section 53 of article 4, whereby the General Assembly is prohibited from passing any special laws exempting property from taxation; section 15, art. 2, whereby it is provided no ex post facto law or law retrospective in its operation can be passed by the General Assembly; section 30, art. 2, whereby it is provided that no person shall be deprived of his property without due process of law; section 19 of article 12, whereby it is provided that no law shall be passed retrospective in its operation or which imposes on the people of any county or municipal subdivision of the state a new liability in respect to transactions or considerations already past. That said pretended statutes of the state of Missouri are unconstitutional and void in that they violate the Constitution of the United States and particularly the following provisions thereof, to wit: Section 8 of article 1, which vests in Congress the power to regulate commerce with foreign nations and among several states; section 2 of article 4, whereby it is provided that the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states; article 14 of the amendments to the Constitution of the United States, which provides that no state law shall deprive any person of liberty or property without due process of law or deny to any person within its jurisdiction the equal protection of the laws. "Plaintiff further states that said pretended statutes provided that certain classes of property and the income therefrom, when owned by certain classes of taxpayers, shall be taxed differently from the manner in which taxes shall be assessed, levied, and collected upon the said class of property and the income therefrom when owned by other classes of taxpayers, and that certain classes of property and the income thereon shall be exempted from the liability for taxes when owned by certain classes of taxpayers, while the same class of property and the income therefrom is sought to be subjected to the payment of taxes when owned by other classes of taxpayers, and that, the ba"Plaintiff further states: That said pre- sis for determining the value of the property tended statutes are void, illegal, and of no ef- and the incomes to be taxed under said prefect whatever. That they are wholly ineffectended statutes, when owned by certain classes tual to confer upon defendant Crawford, or up- of taxpayers, is different from the basis proon defendant Ferril, or upon defendant Srite, vided by said pretended statutes for determinor either of them, any power or authority what-ing the value of the said class of property ever to do the things which they are about to and income, when owned by other classes of do as hereinbefore set out. That said pre-taxpayers; that the income derived from tended statutes of the state of Missouri are property in the state of Missouri, by certain unconstitutional, null, and void, in that they classes of taxpayers, who are favored and previolate the Constitution of the state of Mis-ferred by the provisions of said pretended statsouri, and particularly the following provisions thereof, to wit: Section 3 of article 10, whereby it is provided the taxes shall be uniform upon the said class of subjects within the territorial limits of the authority levying the tax; section 4 of article 10, whereby it is provided that all property subject to taxation shall be taxed in proportion to its value; section 6 and utes, are exempted from the operation of said pretended statutes, and no tax will be assessed, levied, or collected thereon, and said favored and preferred classes of taxpayers will not be required to pay upon their said incomes any tax whatever under said pretended statutes; that certain named classes of corporations and associations are exempted from operation of said pretended statutes, whereas all individuals who derive income from property in Missouri, both residents of the state and nonresidents of the state, are required to pay taxes on such incomes to be assessed, levied, and collected under the provisions of said pretended statutes; and plaintiff says that, unless said defendants be restrained by this court from assessing, levying, and collecting said tax against his said income he will be required to pay said tax upon his said income while other individuals and corporations deriving like incomes from their property in the state of Missouri during the calendar years 1919 and 1920 will be relieved from the burden of taxation upon their said incomes, and be exempted from the operation and effect of said pretended statutes. "Wherefore, plaintiff prays the court to render its judgment enjoining and restraining the defendant Crawford from requiring of this plaintiff that he file in defendant Crawford's office a return of plaintiff's said income that defendant Crawford be enjoined and restrained from assessing the said income of plaintiff and from certifying any assessment thereof to defendant Ferril as county clerk of said county; that defendant Ferril be enjoined and restrained from computing the tax upon the assessment made by defendant Crawford when certified to him, and from extending the same upon any tax book, and from delivering any such tax book showing said tax against plaintiff's income to defendant Srite, the collector of said county, and plaintiff further prays that defendant Srite be enjoined and restrained from collecting any tax that may be assessed and levied under said pretended statutes upon the said income of plaintiff, from suing, harassing, or annoying this plaintiff in the collection of said tax; that all said defendants be enjoined and restrained generally from doing any act or thing whatever, and from receiving or expending any moneys derived from county or state revenues under color or authority of said pre "Plaintiff further states that there are insurance companies organized under the laws of the state of Missouri and insurance companies organized under the laws of other states doing business in the state of Missouri, which have invested and are investing in real estate loans and other securities in the state of Missouri, large sums of money not derived from premiums paid upon insurance done in the state of Missouri, from which said loans and invest-tended statutes, affecting or purporting to afments said insurance companies have received and are receiving large incomes, which said incomes are exempted from income tax by the provisions of said pretended statutes, while this plaintiff and other individuals and corporations other than insurance companies having investments of like character in Missouri from which they derive incomes, are required to pay the income tax thereon under said pretended statutes and enjoy no such exemptions. "Plaintiff further states that there are corporations organized under the laws of other states doing business in Missouri of both interstate and intrastate character, which derive large net incomes from the interstate business upon which they are not required by said pretended statutes to pay the income tax provided thereby, whereas individuals and domestic corporations located in Missouri and engaged in interstate commerce and deriving large incomes therefrom are required to pay the income tax provided by said pretended statutes thereunder, which said discrimination in favor of insurance companies and nonresident corporations and against plaintiff and other individuals and other corporations is unlawful and violative of the inhibitions of the Missouri Constitution and of the Constitution of the United States herein noted. "Plaintiff further states that, in determining losses and gains from sale of properties acquired before July 1, 1917, for the purpose of returns to be made for taxation under said pretended statutes by individuals, the difference between the sale price and the value on July 1, 1917, of the thing sold shall be taken, whereas in the cases of corporations the difference between the sale price and the value of the thing sold on January 1, 1919, shall be taken thus establishing a different basis for valuation in the case of corporations from the basis established for this plaintiff and individuals generally to the prejudice of this plaintiff and individuals similarly situated. Plaintiff further states that part of his said income was received prior to August 7, 1919, and part thereafter. fect the property of the said income of this plaintiff, and plaintiff prays for all other and further orders and judgments as may be proper in the premises." [1] I. It is contended that (a) the Income Tax Act of 1919 taxes incomes for the entire effect until August 7, 1919, it is retrospective year of 1919, and, since the act did not take and therefore invalid as to income received prior to that date; and (b) that, since the value on January 1, 1919, is fixed as the basis of value for determining the gain or loss on property sold by corporations, and since this time antedates the taking effect of the act, it is, for this reason also, retrospective and invalid. [2] The first of these contentions is answered in Smith v. Dirckx, 283 Mo. loc. cit. 198, 199, 223 S. W., 104, 11 A. L. R. 510. The act of 1919, in so far as it carried forward the provision in the former act was not retrospective nor was it, to that extent, new matter at all. As to the second proposition, some time for fixing the value had to be chosen. The value of corporate property was fixed for the whole year as of January 1st. If it is thought that the valuation already made prior to the enactment of the law of 1919 could not legally be used because it had then been made, it is not perceived that the act of 1919 takes the valuation already made, at all. What it does is to base the tax upon the value on January 1st preceding. It is not complained that a valuation already made is adopted. It is complained that a value as of a time preceding the taking effect of the act of 1919 is made the basis of the computation in question. The act of 1919 covered the entire year of 1919. If the previous act would have been valid as against the objection that the value was fixed as of (248 S.W.) the first of the year for the whole year, there seems to be no reason for saying that its validity as the annual base is affected by a mere increase in the tax rate for the last five months of the year. The matter falls within the principle announced in Smith v. Dirckx, supra. [3] II. It is argued that the act is invalid, because there is no way to ascertain the amount of income falling under the rate in the act of 1917, and the amount coming under the rate in the act of 1919, from August 7th, forward. This presents merely the difficulties to be met in computing, assessing, and collecting the tax, and does not affect the validity of the act. III. It is insisted the law is invalid because (1) it allows certain deductions to be made in the case of a citizen of this state, but contains no provision for such deductions in the case of a nonresident; (2) family exemptions are denied to nonresidents unless they file the return required by the act, while no such penalty is imposed upon citizens of the state; (3) persons under guardianship and estates in trust are denied the exemption of $2,000 for each dependent child; (4) that the income of nonresidents from interstate commerce transactions is taxed; (5) that to ascertain the gains and losses from sales of property different dates of valuation of the property of natural persons and corporations are fixed by the act, and this inequality affects the amount of the tax; (6) that the provision exempting that part of the income of nonresident corporations which is derived from interstate business renders the application of the law unequal and therefore invalid. [4] 1. (a) So far as concerns the discriminations asserted to invalidate the act, it is to be observed that appellant is in no way in a position to be affected by any of them. Under the long-established rule he is, for that reason, in no position to assail their constitutional validity. Ordelheide v. M. B. A., 226 Mo. 206, 125 S. W. 1105, 32 L. R. A. (N. S.) 965; State v. Baskowitz, 250 Mo. loc. cit. 89, 156 S. W. 945, Ann. Cas. 1915A, 477; Danciger v. Express Co., 247 Mo. 209, 152 S. W. 302. In these decisions the question will be found well reasoned, and the rule is shown to be supported by the authorities generally. The suit is brought in behalf of appellant "and all who will join him therein." None joined. In these circumstances the right to question the constitutionality of any provision must find a foundation in appellant's own situation. (b) The same questions as to discriminations were presented in Ludlow-Saylor Wire Co. v. Wilbrinck, 275 Mo. loc. cit. 359, 205 S. W. 196, and the act was held good as against them. [5] 2. The objection that the act attempts to tax income derived by nonresidents from interstate commerce, and is therefore invalid, is not a vital one, since an act is not so con strued as to render it unconstitutional if any other reasonable construction can be given it. If the position is sound, the sole effect is to prevent such taxation of the income mentioned. [6] 3. Corporations may be treated as a class for the purpose of the methods and machinery of taxation. In fact, they are so treated in our laws. The selection of one date for the date of valuation of the property of individuals (section 13110, R. S. 1919), and another in the same year, but six months previous (section 13112, R. S. 1919) does not of itself necessitate or disclose an inequality within the meaning of the Fourteenth Amendment. There is no conclusive presumption that properties of equal value would be valued differently at the different dates named. [7] 4. The objection that the income of nonresident corporations derived from interstate business is exempted, and that this results in "an unequal application of the laws to resident and nonresident corporations and individuals" is not sound. The distinction between resident and nonresident corporations furnishes a reasonable basis for classi- . fication with respect to taxation, as the authorities in the briefs show. [8] 5. It is urged that section 13111, R. S. 1919, denies to persons "under guardianship and estates held in trust" exemptions on account of dependents. It is argued that the section fixes the exemption in such cases at not more than $2,000. A reading of the section shows that it is susceptible of a construction which permits the same exemptions as in other cases; that the $2,000 limitation applies to the initial family exemption only. If the construction suggested by appellant in fact would bring the section in this respect within the condemnation of the federal Constitution, that will not invalidate the provision of the act, but will bring about the rejection of appellant's construction and the adoption of the other, to which the objection does not apply. [9] 6. The denial of family exemptions to nonresidents who fail to file the required return is not a discrimination to which objection can successfully be made. It is a penalty imposed for failure to perform a duty imposed by the act with respect to which duty nonresidents stand in peculiar position, in that they are not in the jurisdiction. This difference in situation furnishes a sound basis for a difference in means of securing the filing of the return. [10] IV. It is insisted that, since the act exempts the income derived from the investment business of insurance companies, it discriminates against other corporations and individuals. Insurance companies are separately taxed on their gross incomes in lieu of other taxes, and this tax and like taxes have been upheld heretofore. Massachusetts Bonding & Ins. Co. v. Chorn, 274 Mo. 15, 201 S. W. 1122; Pacific Express Co. v. Seibert, 142 U. S. 339, 12 Sup. Ct. 250, 35 L. Ed. 1035. The exemption complained of applies solely to companies so taxed. WHITE, J. The petition in this case is in two counts. The first count seeks to cancel & certain deed executed in the state of Texas, January 20, 1920, whereby William Bryan This disposes of the questions raised which Edmonston conveyed certain land in Dunkrequire discussion. The judgment is affirmed. WOODSON and RAGLAND, JJ., concur. ion. GRAVES, P. J. I concur in the result of this case. In so far as the opinion gives credence to the majority opinion in Smith v. Dirckx, in 283 Mo. 188, 223 S. W. 104, 11 A. L. R. 510, I do not agree. My views in that case are expressed in my dissenting opinion, which was broader in substance than the principal opinion. As to other matters discussed in the present opinion, I concur. I do not think that my dissent in the Smith Case interferes with a concurrence in the result of the present opinion. HARRISON v. EDMONSTON et al. (No. 22836.) lin county, Mo., to the plaintiff and the defendants, as tenants in common. The second count is to determine title, alleging that the plaintiff is the owner in fee simple of the land described in the first count, and that the defendants claim title under the deed described in the first count. In each count it is alleged that the deed mentioned was executed before a notary public in the state of Texas, but never delivered during the lifetime of the grantor, and the only issue presented is whether the deed was delivered. The plaintiff was the half-brother and only heir at law of William Bryan Edmonston, the grantor, and the defendants were his cousins. William Bryan Edmonston died at Hornersville in Dunklin county in February, 1920. The plaintiff to sustain the issues on his part introduced the following evidence: It was admitted that William Bryan Edmonston died intestate. Solon Davis, who lived in Hornersville, testified that he visited William Bryan Edmonston in February, 1920, just after the latter had returned from a health resort. W. (Supreme Court of Missouri, Division No. 2. A. Edmonston, one of the defendants, was Feb. 23, 1923.) 1. Deeds 194(1)-Due acknowledgment and certification only prima facie evidence of delivery. present. The witness thus relates the significant incident of his visit: "I got up to leave. Will Edmonston [W. A. Edmonston, the defendant] and myself were in the room, and Will said something to him about I would take the deed to the bank for him if he wanted me to, and Bryan called me back to the bed and pulled a deed out of his gown and gave it to me and said: "Take it to 56(3)-Parting with all control the bank and tell Mr. Rice to keep it for me unessential for delivery. Under Rev. St. 1919, § 2207 (Rev. St. 1909, § 2818), due acknowledgment of a deed and certification of the acknowledgment is only prima facie proof of delivery. 2. Deeds To make delivery of a deed effectual, the grantor must part with all control over it, and place it beyond the possibility of recovery. 3. Deeds 56(2)-Delivery, matter of intention. Delivery of a deed is a matter of intention, without which delivery is not complete. 4. Deeds 208 (2)-Delivery held not made. Evidence held not to show delivery of a deed which at grantor's death was among his papers in a bank. Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge. til it is called for,' and I did so, and turned the deed over to Mr. Rice. He talked in a low voice or whisper, and said: "Take it and tell them to keep it until it is called for.' He didn't call any name as to who would call for it." Bryan Edmonston died about a week after that. The witness, as requested, took the deed and delivered it to Mr. Rice in the bank. It was in an envelope, sealed, when it was handed to the witness, and he next saw it in the same envelope, when it was opened by the public administrator. On cross-examination the witness stated that he had no conversation with William Suit by B. F. Harrison against W. A. Ed- Bryan Edmonston about what was in the monston and another. Decree for plaintiff, and defendants appeal. Affirmed. deed except that it was made before he left San Antonio, Texas; that witness read the deed before he delivered it to Mr. Rice; it R. J. Smith and Hugh B. Pankey, both of was the deed in controversy. Kennett, for appellants. J. E. Rice, witness for the plaintiff, testiMcKay & Jones, of Kennett, for respond- fied that he was cashier of the bank of Hornersville, Dunklin county, Mo.; that Solon ent. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (248 S. W.) Davis gave him a deed, and that he put it in Witness did not remember which one of the vault with Bryan's other papers, and them made the remark. Mr. Shannon and left it there until after his death. It was the nurse were in the room at the time. the deed in controversy. After Bryan Ed- Witness thought the nurse walked out, but monston's death the public administrator was not sure; she was in there a time or came and called for the papers that belonged two. W. A. Edmonston was not in the room to him, and witness delivered them, includ- at the time, but R. M. was. ing the deed. The public administrator looked over the deed, and decided not to take charge of it, but left it in the bank, and the witness then permitted the defendant W. A. Edmonston and R. M. Edmonston to put it on record. W. F. Rhew testified that he was public administrator in charge of the estate of Bryan Edmonston; that he found the deed in controversy among the papers of Bryan Edmonston; that Mr. Rice, cashier of the bank, brought the deed to the witness with other papers of Mr. Edmonston. On cross-examination the witness was asked how he got a Missouri form upon which to write the deed. He replied that he was on a deal trading an ice plant in Stockdale, Tex., for some property in Southeast Missouri, that he had some Missouri forms in his office, and used one of them. The witness was then cross-examined about correspondence with Mr. McKay, attorney for the plaintiff. Mr. McKay wrote to Clifton, March 20, 1920, asking him about the preparation of the deed, where he got his blank The defendant then offered evidence as form, and who was present when the deed follows: The deposition of George M. Clif- was executed. Clifton did not answer that ton, an attorney, who lived in San Antonio, | letter, and on March, 30th McKay wrote anTex., was read. He testified that at the re- other letter referring to the letter of March quest of W. A. Edmonston he went on the 20th and asking Clifton to reply. Clifton 20th day of January 1920, to see William then replied, and stated the circumstancBryan Edmonston at a sanitarium in San An-es of his going to see Mr. Edmonston and pretonio, Tex. William Bryan Edmonston at paring the deed, and in his letter he said: the time looked as if he were in a low state "Mr. Shannon took the acknowledgment, and of tuberculosis. He stated that he had a I handed the deed to the young man. I met. half-brother; that the two gentlemen pres- several days before, a Mr. Edmonston, who ent, W. A. Edmonston and R. M. Edmonston, stated that he was a relative of the sick man were his cousins, who had accompanied him at the hotel where I was stopping, who asked to Texas on a trip for his health. Witness me if I would go to the sanitarium as there said William Bryan Edmonston told him was a young man who wanted to talk to a lawI went, and did what the sick man rethat W. A. Edmonston had been a father to yer. quested. I know nothing about this that I him; that he and R. M. Edmonston were wish to conceal." very close to him, and assisted him in sickness; he thought he would not live long, and wanted to divide his property between his two cousins and his half-brother. He asked the attorney to prepare some papers in regard to his property, gave him data and a description of the property, and asked him to prepare a deed. Witness advised him to write some restrictions in the deed, because he might live longer than he expected to. The sick man agreed that a stipulation should be written in the deed that the grantees were to support him and supply his wants, and bury him. A debt of $500 was against the property and the grantees were to relieve the property of that. This conversation took place while the other Edmonstons were out of the room. He was asked why the letter did not state that the deed was handed to R. M. Edmonston; he answered that McKay's letter did not call for everything that took place that day. J. P. Shannon, notary public, San Antonio, Tex., testified by deposition that he remembered the deed; that he never saw William Bryan Edmonston prior to the time of taking acknowledgment at the hospital; that Edmonston seemed weak physically but bright in mind. At the time he took the acknowledgment Mr. Clifton, a nurse, and another gentleman-one of the grantees-were present. The grantor did not make any statement about the deed at the time he took the acknowledgment; he read the deed himself The witness prepared the deed, took it to and signed it. After witness had placed his Bryan Edmonston, who read it, discussed its seal on the deed he handed it to Mr. Clifton features, and acknowledged it before Mr. and Mr. Clifton passed it to the sick man. Shannon, a notary public, who handed the Witness was in the room only a few minutes deed to the witness, witness handed it to the after that; he did not remember that Wil sick man, and the sick man handed it to R. M. liam Bryan Edmonston said anything after Edmonston. Witness then was asked what Mr. Clifton handed him the deed. The last William Bryan Edmonston said to him at time he saw the deed William Bryan Edthe time he delivered the deed. Witness re- monston had it. Witness and Mr. Clifton plied there was a little joking about it; some- left the room at the same time, he in advance thing was said like this: "We have got him of Clifton; he saw Mr. Clifton hand the deed stung now; he has to pay all the bills." to William Bryan Edmonston, and did not |