The same doctrine is laid down in Honduras Company v. Assessors, 54 N. J. Law, 278, 23 Atl. 668, and also in the following cases: People v. Knight, 174 N. Y. 475, 67 N. E. 65, 63 L. R. A. 87; Home Ins. Co. v. New York, 134 U. S. 595, 10 Sup. Ct. 593, 33 L. Ed. 1025; Tremont & Suffolk Mills v. Lowell, 178 Mass. 469, 59 N. E. 1007. We do not deem it necessary to refer to the other cases that in some form or other invoke the same doctrine. The contention that the case at bar is distinguishable from the cases cited above, upon the ground that the Constitution of this State declares franchises to be property, is not tenable, in view that that instrument in terms recognizes the fact that franchises may and do partake of a dual character, as we have pointed out. We have therefore cited the foregoing cases only for the purpose of showing that the framers of our Constitution, in attributing to corporate fran chises a dual character, were clearly in harmony with the law as it is declared to be by the courts. The act, in our opinion, is valid, and we again repeat, what this court has so often declared, that, when an act or statute is attacked upon the ground that it violates some provision of the Constitution or in some way is repugnant to that instrument, it must clearly appear to be so, or the act or statute must be held valid. This doctrine applies with especial force to a law which sets in motion a sovereign power such as the power of taxation when it is alleged that the Constitution prohibits the exercise of the power. In such a case, unless it is made to appear beyond a reasonable doubt that the sovereign power to impose taxes in a particular way is withheld from the Legislature, the law imposing a particular tax must be upheld.

The case of Western Union Telegraph Co. v. City of Omaha, 73 Neb. 527, 103 N. W. 84, relied upon by appellant, does not in any way impugn the doctrine we are seeking to enforce here. The decision in that case is based upon the theory that the Legislature could not, within the provisions of the Constitution of Nebraska, arbitrarily determine the value of franchises and tax them at the rate

that other property is taxed; but it is held that, if franchises are taxed as tangible property, then the value thereof must be ascertained by the same methods that the value of other property is ascertained for the purposes of taxation. It is, however, conceded in that case that the Legislature may do what is attempted to be done in the act in question, namely, impose a tax upon the right to exercise the privilege conferred by the corporate franchise. The other cases cited by counsel for appellant upon this point in effect do no more than support the doctrine of the Nebraska case referred to.

The contention that the act is void, upon the ground that it offends against the uniformity clause of the Constitution, cannot be sustained. Having determined that the tax is not a tax upon property within the purview of the Constitution of this State, it follows that the classification, the amount of the tax, and the manner of collecting it is a matter largely if not entirely within the legislative discretion. With regard to this point the same principle is involved in this case that was involved in the case of Salt Lake City v. Christensen Company, 95 Pac. 523, ante 38, recently decided by this court, and it is therefore needless to extend the discussion upon this point. In addition to the authorities cited in that case, we refer to the following: Denver City Ry. Co. v. City of Denver, 21 Colo. 350, 41 Pac. 826, 29 L. R. A. 608, 52 Am. St. Rep. 239; Home Ins. Co. v. New York, 134 U. S. 600, 10 Sup. Ct. 593, 33 L. Ed. 1025; 1 Cooley on Taxation (3d Ed.), p. 412.

It is further contended that the act is void for uncer tainty, in that it fixes no time at which the duty to pay the tax arises, and because the nonpayment thereof does not prevent the corporation from continuing its business, although it may refuse or neglect to pay the tax. As to the first point, it is sufficient to say that the license tax imposed is an annual tax payable on or before the 15th day of Any corporation falling within

November of each year."

66

the class mentioned in the act upon whom the tax is imposed, and which has obtained from the State a franchise

to transact business as a corporation at any time before the 15th day of November of any year, is liable for the tax, and, when paid, is entitled to the certificate mentioned in section 5 of the act, which entitles such corporation to continue to transact its corporate business for the whole year and until the 15th day of November of the following year. Any corporation organized after the 15th day of November in any year clearly cannot be required to pay the tax until the following November. If it be said that this authorizes a newly created corporation to transact business for a period for which it pays no tax, it may likewise be said that the same condition exists with regard to any annual tax. Even upon a property tax when a person becomes the owner thereof after the time for assessing the property has passed, he may hold it immune against taxation until the next annual period for assessment arrives. The Legislature no doubt could have provided that any corporation formed after the 15th day of November in any year should be required to pay a tax in proportion to the time intervening between its organization and the end of the yearly term, namely, the 15th day of November. The mere fact that this was not done, however, in no way affects either the certainty or the uniformity. It is made to operate upon all corporations in the same way where their status is the same. Nor do we see anything objectionable in the fact that the act does not deprive the corporation of its privileges in case of default of payment of the tax. This is a mere matter of detail in enforcing the tax. If the tax is valid, and we think it is, then the corporations upon whom it is imposed certainly cannot be heard to complain that the penalty in case of default is not more drastic than it is. Nor is there any merit in the contention that both the tax and penalty constitute a lien upon the tangible property of the corporation. This is the method that the Legislature has adopted to enforce payment of the tax, and, as we have pointed out in Salt Lake City v. Christensen Company, supra, is a matter entirely within the legislative discretion. The law no doubt is somewhat crude and imperfect and may not be

the best that could be devised for the purposes of raising revenue, but neither one nor all of these reasons can in any way nor to any extent affect the validity of the law itself.

From what has been said, we hold: (1) That the act in question is not clearly repugnant to any constitutional provision; (2) that the tax in question is a mere license tax imposed by the State upon certain corporations for the privilege granted them by it to be and to continue to transact business in this State as a corporation, and the tax was not intended to be, nor is it, a tax upon franchises as tangible property, and therefore does not offend against the provisions of section 2 of article 13 of the Constitution; (3) that the manner in which the tax is imposed and the amount that each corporation is required to pay, as ascertained and fixed by the act, is not contrary to any constitutional provision; (4) that the period of time for which the payment of the tax entitles the corporation to continue its business without further payment is certain; and (5) that the act is not so uncertain nor unfair in any of its provisions that a court would, for that reason, be authorized to declare it invalid.

The judgment therefore ought to be, and it accordingly is, affirmed, with costs to respondent.

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

BRIDGMAN v. WINSNESS.

No. 1913. Decided November 11, 1908 (98 Pac. 186).

1. PARTNERSHIP MEMBERS-EVIDENCE. Evidence held to support a finding that a person was at his death a member of a partnership embracing himself and son.

2. PARTNERSHIP-PROOF OF EXISTENCE OF RELATION-ESTABLISHMENT BY CIRCUMSTANCES. The existence of a partnership may be implied from circumstances, especially where they not only tend to show the relation, but are inconsistent with any other theory.

3. PARTNERSHIP-EVIDENCE-ADVERTISEMENT FROM CITY DIRECTORY. In an action to recover property of a business as the individual property of plaintiff's decedent, a paragraph from a city directory, containing an advertisement mentioning decedent and his son as the proprietors of the business was admissible to show a partnership between decedent and his son in the business, where it appeared that decedent was a party to the transaction whereby the advertisement was inserted in the directory.

4. PARTNERSHIP EVIDENCE-REPORT TO MERCANTILE AGENCY. In an action to recover property of a business as the individual property of plaintiff's decedent, a business statement to a mercantile agency, signed by decedent, which referred to himself and son as "partners and officers" of the firm, was admissible to show a partnership in the business between father and

In an action to recover property of a business as the individual property of plaintiff's decedent, where decedent's son on his direct examination stated that he and his father had dissolved partnership prior to his father's death, and that the property belonged to his father, testimony elicited from him on cross-examination, that he had at other times asserted that he himself was the owner or part owner of the property, was competent to impeach his testimony on direct examination.

APPEAL from District Court, Third District; T. D. Lewis, Judge.

Action by Michael J. Bridgman, administrator of William Pender, against George Winsness, administrator of Fred Roberts. Judgment for defendant, and plaintiff appeals.

AFFIRMED.

Booth, Lee & Badger for appellant.

Henderson, Pierce, Critchlow & Barrette for respondent.

MCCARTY, C. J.

William Pender and James Pender, father and son, began the foundry business as partners about the fall of 1890, under the name of "Murray Iron Foundry, William Pen