The last clause of section 494, civil code, provides that, "when the suit is for any of the causes specified in subdivisions 3, 4, 5, or 6 of section 491, the defendant may admit the charge, and show in bar of the suit that the act complained of * *** has not been committed within one year after the right of suit occurred," and said subdivision six is the one upon which this suit is grounded. It was held by the court below that the clause of section 494, just quoted, constituted a bar whenever it appeared that more than a year had elapsed between the act complained of and the commencement of the suit, and this whether the defendant claimed the benefit of the provision or not.

We are unable to concur in this view. By section 493 it is enacted that, "In a suit for the dissolution of the marriage contract, the plaintiff therein must be an inhabitant of the state at the commencement of the suit, and for one year prior thereto; which residence shall be sufficient to give the court jurisdiction without regard to the place where the marriage was solemnized, or the cause of suit

arose.

In this case it appears that when the conduct of the defendant became such that the plaintiff could no longer endure it she left his domicil and took up her residence in this state. Under section 493 she could not maintain a suit here until she had been an inhabitant of the state for one year. And, according to the views of the court below, she is barred when the year has elapsed. But it seems clear that by the right of suit spoken of in section 494 is meant a present right to resort to the courts for redress. Such a right did not accrue to the plaintiff till she had been an inhabitant of this state for one year, or less than two months before she filed her complaint.

Whether the provisions of section 494, above quoted, could be held to bar a suit in any case, when not pleaded by the defendant, it is not necessary now to decide.

Let a decree be entered in accordance wilh the prayer of the complaint.

DAVID V. WATERS.

Filed January 23, 1885.

DEATH OF MINOR CHILD-COMPLAINT FOR BY MOTHER-ALLEGATION OF FATHER'S DEATH.-A complaint by a mother, under section 33 of the civil code, to recover for the death of a minor child, will not be considered fatally defective for failure to allege the death or desertion of the father, if it contain an allegation that the mother was next of kin. Under such an allegation and a verdict in favor of the plaintiff, proof of the father's death will be presumed.

APPEAL from the circuit court of Wasco county. The opinion states the facts.

J. C. Mortland, for the appellant.
R. R. Giltner, for the respondent.

THAYER, J. This appeal is from a judgment of the circuit court for the county of Wasco, rendered in favor of the respondent and against the appellant, in an action brought by the former against the latter to recover damages for the death of a child. The respondent alleges in his complaint that Bernhard David was in the employ of the Lost Lake and Columbia Manufacturing Company in their saw mill in said county; that in the forenoon of the twenty-third day of November, 1883, while he, with one Jack Woods, the engineer of said company, was endeavoring to remove the main driving wheel from its center, the appellant carelessly, negligently and wrongfully turned on the steam of the engine which drove said wheel, suddenly set it in motion, and which resulted in the immediate death of the said Bernhard, that said Bernhard was under the age of twenty-one years and died intestate; that his next of kin was his mother, the said respondent, who was dependent upon him for support; and who, by the loss of his labor and services had sustained pecuniary injury by his death. The case was tried by the court and a jury duly impanelled. The said jury returned a small verdict for the respondent upon which the judgment appealed from was entered. The only question raised by the appeal is as to the sufficiency of the complaint, which question is raised for the first term in this court.

The statute under which such an action is maintainable, provides that a father, or in case of his death or desertion of his family, the mother, may maintain an action as plaintiff for the injury or death of a child: sec. 33, civil code; and the appellant's counsel insists that the complaint is fatally defective in not alleging the fact that the father of the said Bernhard was either dead or had deserted his family. That allegation is not in terms made in the complaint, and the judgment will have to be reversed unless the fact omitted is so connected with the facts which are alleged in the complaint that they could not have been proved without proving the fact omitted. The allegation in the complaint is that said Bernhard's next of kin was his mother, the respondent, and that fact is presumed after verdict to have been proved at the trial. Could the fact that the respondent was the next of kin to the said Bernhard, have been proved without proving that his father was dead? Next of kin " must mean nearest in relationship, and we think implies that the father, who would have occupied that relation if alive, was dead. We are of the opinion that we may presume after verdict that proof of the father's death was made at the trial in the proof that the mother, the respondent, was next of kin. Such a presumption we believe, would be authorized under the rule laid down in Addington v. Allen, 11 Wend., 375. The judgment of the court below is therefore

affirmed.

No. 61-3.

CRAWFORD v. LINN COUNTY.

Filed January 23, 1885.

TAXATION CONSTITUTIONAL LIMITATION-EQUALITY OF TAXATION.-Under a constitutional limitation that "the rate of assessment and taxation shall be equal and uniform" the legis lature has power to select for taxation mortgages, situated entirely in one county, and either to exempt mortgages situated in two counties, from taxation, or to tax them at a different

rate.

THE SAME-EXEMPTION FROM TAXATION-MORTGAGE TAX.-Under the second clause of section IX of the constitution, the legislature has no power to exempt a certain class of prop erty, such as mortgages situated in more than one county, or the debt secured thereby, from taxation. Such attempted exemption would be void.

THE SAME MORTGAGE TAX ACT NOT A SPECIAL LAW.--The act of October 26, 1882, generally known as the mortgage tax law, is not unconstitutional as being a special law.

APPEAL from Linn county. The opinion states the facts.

Charles E. Wolverton, for the appellant.

R. S. Strahan and Bilyeau & Burnett, for the respondent.

WALDO, C. J. This case turns on the constitutionality of the act of the legislative assembly, approved October 26, 1882, known as the mortgage tax law. The act is alleged to be unconstitutional; first, because it does not provide for equal and uniform taxation, and second, because it is a special law.

In a case that came up before the United States circuit court for the district of Oregon in March, 1884, Dundee Mort. &c. Co. v. School District, 3 West Coast Rep., 241, the act was considered open to both these objections and was accordingly declared unconstitutional and void. When the law was formerly before this court in Mumford v. Sewell, 3 West Coast Rep., 712, these points were not presented by counsel, nor were they considered by the court. These questions have now to be examined.

The constitutional limitations on the powers of the legislative assembly over the subject of taxation are found in sec. 1 of art. IX, and the last clause of sec. 32, art. I. Section 1, art. IX, consists of two clauses: First-"The legislative assembly shall provide by law for uniform and equal rate of assessment and taxation.' Second"And shall prescribe such regulations as shall secure a just valuation for taxation of all property, both real and personal, excepting such only for municipal, literary, scientific, religious or charitable purposes, as may be specially exempted by law.

These two clauses are limitations upon distinct powers, and must be construed independently of each other. In the first clause the word "rate" is used in a somewhat different sense when applied to the assessment and when applied to the word "taxation."" The term rate may apply either to the percentage of taxation, or to the valuation of property:" State v. Utter, 5 Vroom, 49. It is applied in this clause in each sense-in the former sense to the taxation, and in the latter to the assessment. It is evident that equality in the rate of assessment, means proportional valuation-relative, not absolute, equality; while equality in the rate of taxation means that the percentage shall be the same, or absolutely, equal. The result

is relative equality of taxation. The first constitution of Tennessee furnished a remarkable instance of absolute equality of taxation, resulting finally as the court say in 1 Yerger, 487, in the grossest inequality. A provision required all lands to be "taxed equal and uniform in such manner that no one hundred acres shall be taxed higher than another."

If the rate of assessment and taxation be equal, it is conceived it will be uniform; that is, that no meaning can be attached to the word "uniform which is not conveyed by the word " equal." If the rate is everywhere equal, or the same, it will be uniform necessarily. If the rate is varied so that property of different kinds or in different localities is valued or taxed at different rates, the rate will be unequal, and so not uniform; and so far as it is equal it will also be uniform.

Now, is the provision that the rate of assessment and taxation shall be equal, or equal and uniform, a limitation imposed by the constitution on power which the legislature would otherwise possess, and if so, what is the extent of that limitation? It will be convenient, in the first place, to see what the powers of the legislature are in the absence of express constitutional restrictions; for it is a precarious, it may be an impossible task, to define accurately the the limitations of a power, unless the power of itself be first ascertained.

It is ordained, sec. 1, art. IV, of the constitution of Oregon: "The legislative authority of the state shall be vested in the legislative assembly, which shall consist of a senate and a house of representatives." In Sharpless v. Mayor of Philadelphia, 21 Pa. St., 160, Black, C. J., discussing the taxing power of the commonwealth, said of the like provision in the constitution of Pennsylvania: "It is plain that the force of these general words, if there had been nothing else to qualify them, would have given to the assembly an unlimited power to make all such laws as they might think proper. They would have had the whole omnipotence of the British parliament. But the absolute power of the people themselves had been previously limited by the federal constitution, and they could not bestow on the legislature authority which had already been given to congress. The judicial and executive powers were also lodged elsewhere, and the legislative department was forbidden to trench upon the others by an implication as clear as words could make it. The jurisdiction of the assembly was still further confined by that part of the constitution called the "declaration of rights," which in twenty-five sections carefully enumerates reserved rights of the people, and closes by declaring that "everything in this article is excepted out of the general powers of the government and shall remain forever inviolate." The general assembly cannot, therefore, pass any law to conflict with the rightful authority of congress nor perform a judicial or executive function, nor violate the popular privileges reserved by the declaration of rights, nor change the organic structure of the government, nor exercise any other power

prohibited in the constitution. If it does any of these things the judiciary claims and in clear cases has always exercised the right to declare all such acts void. But beyond this there lies a vast field of power granted to the legislature by the general words of the constitution and not reserved, prohibited or given away to others. Of this field the general assembly is entitled to the full and uncontrolled possession. Their use of it can be limited only by their own discretion.

"There is nothing more easy than to imagine a thousand tyrannical things, which the legislature may do if its members forget all their duties; disregard utterly the obligations which they owe to their constituents, and recklessly determine to trample on right and justice. But to take away the power from the legislature because they may abuse it, and give to the judges the right of controlling, it would not be advancing a single step, since the judges can be imagined to be as corrupt and as wicked as legislators.

The taxing power being a legislative duty, is, of course, entrusted to the general assembly, and it is given to them without any restriction whatever. They are to use it according to their discretion, and if they abuse it, and if public opinion is not just or enlightened enough to correct their errors, there is no remedy."

So in Connecticut it is said that a law laying a tax is, in the absence of constitutional restrictions, peremptory and supreme. The legislature may well say, "Sic volo, sic jubeo, stet pro ratione vol

untas."

So, in New York in the great case of the People v. Brooklyn, 4 N. Y., 428, the court referring to the decision in People v. Brooklyn, 6 Barb., 209, where it was held that a tax to be valid must be apportioned upon principles of just equality and upon all the property in the same political district, and that this is a fundamental principle of free government, which, although not contained in the constitution, limits and controls the power of the legislature, say: "This is new and it seems to me to be dangerous doctrine. It clothes the judicial tribunals with the power of trying the validity of a tax by a test neither prescribed nor defined by the constitution. If by this test we may condemn an assessment apportioned according to the relation between burden and benefit, we may with a far better reason condemn a capitation tax, on the ground that numerical equality is not just equality; or a general property tax for a local object, because it compels one portion of the community to pay more than their just share for the benefit of another portion. All discriminations in the taxation of property, and all exemptions from taxation on the ground of public policy, would fall by the application of this test. If this doctrine prevails, it places the power of the courts above that of the legislature in a matter affecting not only the vital interests, but the very existence of the government. It assumes that the apportionment of taxation is to be regulated by judicial and not by legislative discretion. It obstructs the exercise of powers which belong to and are inherent in the legislative department, and re