be inferred that he meant no other than a lawful marriage. While a polygamous marriage was prohibited in the then territory of Utah under act of Congress of March 22, 1882, chapter 47, 22 Stat. 30 (U. S. Comp. Stats. 1901, p. 3633), amended by 1 Compiled Laws of 1888, page 110, section 22, still, according to the testator's views, such a marriage was not only justifiable, but was in itself right and proper. It therefore cannot be held that he intended to provide against a statutory marriage merely, but it seems reasonably clear that he intended to provide against any marriage by which some other man should sustain the relation of husband to Leah Perks, regardless of whether she became a legal or a so-called plural wife. It is the relation generally that he was providing against, and not merely against the character of the relation. If the relation was created at all by reason of a marriage, whether monogamic or polygamous, the condition of the will applied. If this was the intention of the testator-and, to our minds, there is no escape from the conclusion-it is our duty to follow such intention whether it comports with our views of morals or propriety or not.

The bequest in the will in favor of appellant comes squarely within section 2795, Compiled Laws of 1907, which was in force 297 at the time the will was executed, and which provides: "A conditional disposition is one which depends upon. the occurrence of some uncertain event, by which it is either to take effect or be defeated." The condition in the will was the subsequent marriage of appellant. If she married again, it would defeat the bequest, and another was to be substituted therefor. The court, as a conclusion of law, found that the relation she entered into with one Crabtree constituted a marriage such as the testator intended to provide against, and thus defeated the first bequest. We think the court was right in so concluding in view of all the circumstances and the terms of the will. From the authorities cited by us it is clear the court committed no error in admitting the evidence which is reflected in the findings and upon which the court based his conclusion that the testator, by the phrase "marry again," under the circumstances, referred to a plural marriage.

We are forced to the conclusion, therefore, that the judgment is right, and it accordingly is affirmed, with costs to respondents.

McCarty, C. J., concurs.

Am. St. Rep., Vol. 131-54

STRAUP, J., Concurring. I concur. The decisive question is: In what sense did the testator use the term "marry again" Had he simply used the word "marry," I think it then could well be said that he intended to convey a meaning in the sense as such term is generally understood and defined, and hence it would not include a polygamous marriage. But the term "marry again" implies that Leah Perks had once been married. If she married at a second or another time. the bequest was defeated. I think, therefore, it was proper to inquire into her prior matrimonial relation and to ascertain what that was. Such relation appears to have been a polygamous marriage only. By the use of the term "marry again," the testator necessarily characterized such prior matrimonial relation a marriage. If he regarded such prior relation a 208 marriage, I have every reason to believe that he regarded a second polygamous marriage also a marriage, and hence intended that kind of a marriage, as well as a legal or monogamous marriage, to defeat the bequest.

In the Construction of Wills, mere technical rules must yield to the obvious intent and purpose of the testator: Gannon v. Albright, 183 Mo. 238, 105 Am. St. Rep. 471. The cardinal and fundamental rule is to ascertain the intention of the testator and to give it effect: Kemper v. Fort, 219 Pa. 85, 123 Am. St. Rep. 623; Platt v. Brannan, 34 Colo. 125, 114 Am. St. Rep. 147; Mueller v. Buenger, 184 Mo. 458, 105 Am. St. Rep. 541.

When the Intention of a Testator is Doubtful, courts may resort to the conditions and circumstances surrounding him at the time of the execution of the will: Pate v. Bushong, 161 Ind. 533, 100 Am. St. Rep. 287; White v. Holland, 92 Ga. 216, 44 Am. St. Rep. 87; note to Chappell v. Missionary Society etc., 50 Am. St. Rep. 279.

BLACKROCK COPPER MINING AND MILLING COMPANY v. TINGEY.

[34 Utah, 369, 98 Pac. 180.]

TAXATION-Dual Character of Franchises.-A franchise, for purposes of taxation, has a dual nature. In one sense it may be considered as property valued and assessed as such, but in another sense as merely conferring a privilege upon the incorporators to transact business as a corporate body, which while of value to them as distinguished from the entity called the corporation, is not property in the broadest sense. (p. 854.)

TAXATION-Kinds and Qualities of Franchises.-Franchises which merely give the right to be or exist as a corporation are not "property" within the constitutional rules of taxation. In this they differ from franchises to operate street railways, to maintain telephone lines, or to furnish water to the inhabitants of a city, which franchises are property in every sense of that term, to be taxed aecording to their actual value ascertained in the same manner as the value of property generally. (p. 856.)

TAXATION—Franchises and Corporations.-The Utah constitution, in providing that property shall be assessed according to its value and that the word "property" includes franchises, regards franehises as partaking of a dual character, the one as property subject to transfer and alienation and the other as the mere right to be or exist as a corporation. The former part of the franchise must be taxed as other property; the latter may be subjected to a license tax. (p. 857.)

CONSTITUTION—Harmonizing Different Parts. In construing a constitution it is the duty of the court to harmonize the different parts and to give each one its proper effect so far as possible under the rules of construction. (p. 856.)

CONSTITUTION-Consideration of Entire Instrument.-In construing a constitutional provision, it is the duty of the court to have recourse to the whole instrument, if necessary, to ascertain the true intent and meaning of the particular provision in question. (p. 857)

TAXATION-Franchise or License Tax on Corporations.-An annual tax imposed on corporations, graduated according to the amount of capital stock, is in the nature of a license tax on the privilege of being and existing as a corporation. It can be said to be a franchise tax in a very limited sense merely. The statute imposing the tax is valid, and does not impugn the constitutional rule that franchises are property, and that property must be assessed in proportion to its value. (p. 858.)

TAXATION-Constitutionality of Statute Favored.-The rule that a statute must be held constitutional unless it clearly violates some provision of the constitution applies with especial force to a law which sets in motion the power of taxation; unless it is made to appear beyond a reasonable doubt that the sovereign power to impose taxes in a certain way is withheld from the legislature, the law imposing a particular tax must be upheld. (pp. 859, 860.)

TAXATION-License or Property Tax.-An Annual Tax Imposed on Corporations, graduated according to the amount of capital stock, is not a tax upon property within the purview of the Utah constitution, and hence the classification, the amount of the tax, and the manner of collecting it rest largely, if not entirely, within the legislative discretion. (p. 860.)

TAXATION-Tax and Penalty as Lien upon Corporate Property. An annual tax imposed on corporations, graduated according to the amount of capital stock, is not unconstitutional because both the tax and the penalty in case of default constitute a lien upon the tangible property of the corporation. (p. 861.)

Lawrence & Robertson and Snyder & Snyder, for the appellant.

M. A. Breeden, attorney general, for the respondent.

371 FRICK, J. This is an action to recover back certain license taxes paid by the appellant to respondent under protest. The controversy arises with regard to the validity of a certain act passed by the legislature in 1907 (Laws 1907, p. 126, c. 107), and now incorporated into the Compiled Laws of Utah of 1907 as sections 456x6 to 456x10, inclusive. The title to the act in question reads as follows: "An act requiring all corporations to pay an annual state license; providing for

the enforcement of same and prescribing a penalty for refusal or failure to comply therewith and making certain exceptions." The original act is divided into five sections. Section 1 reads as follows:

"All corporations organized under and by virtue of the laws of this state or under the laws of the territory of Utah, and all foreign corporations doing business in this state, except as hereinafter provided, are hereby required to pay an annual state license as follows: All corporations with an authorized capital stock of $10,000 or less, $5; with an authorized capital of more than $10,000 and not to exceed $25,000, $10; with an authorized capital of more than $25,000 and not to exceed $50,000, $15; with an authorized capital of more than $50,000 and not to exceed $75,000, $20; with an authorized capital of more than $75,000 and not to exceed $100,000, $25; and with an authorized capital of more than $100,000 and not to exceed $150,000, $35; and with an authorized capital of more than $150,000, and not to exceed $200,000, $40; and with an authorized capital of over $200,000, $50. Provided, that all corporations of religious or charitable societies, and corporations organized not for pecuniary profit, and canal and irrigation companies organized for the express purpose of providing water for lands owned solely by the incorporators, and all insurance companies, shall be exempt from said license." Section 2 requires the license tax to be paid to the Secretary of State on or before the fifteenth day of November of each year. Section 3 is not material here. Section 4 prescribes a penalty for the failure to pay the tax, which subjects the defaulting corporation to the payment of a penalty of $100, and provides that such penalty and taxes shall be a lien upon the property of the corporation, and, 372 further, that the attorney general or county attorney may institute an action in the name of the state for the recovery of the license tax and penalty. Section 5 provides that upon payment of the license tax the Secretary of State shall issue to the corporation a certificate evidencing payment of the tax. The attorney general, who appeared in the court below for respondent, demurred to appellant's complaint, and the court sustained the demurrer, and, appellant electing to stand upon his complaint, the court entered judgment dismissing the action, and hence this appeal.

It is urged by appellant that the court erred in sustaining the demurrer. This contention is based upon the ground that the act in question is unconstitutional, and that therefore the license tax thereby imposed is invalid and nonen

forceable, and hence the appellant should have had judgment for the amount paid by it under protest. No question is raised with respect to the sufficiency of the facts alleged in the complaint to entitle appellant to recover if the act in question should be held invalid, nor is there any question presented affecting the respondent's right to collect the tax if the act is held to be valid. The sole question, therefore, is the validity of the act in question.

The constitution of this state (article 13, section 2), so far as material here, reads as follows: "All property in the state, not exempt under the laws of the United States, or under this constitution, shall be taxed in proportion to its value, to be ascertained as provided by law. The word 'property' as used in this article, is hereby declared to include moneys, credits, stocks, franchises, and all matters and things (real, personal and mixed) capable of private ownership."

Section 3 of the same article requires the legislature to provide by law for a uniform and equal rate of assessment and taxation, "so that every person and corporation shall pay a tax in proportion to the value of his, her, or its property." Section 12 of the same article reads as follows: "Nothing in this constitution shall be construed to prevent the legislature from providing a stamp tax or a tax based on income, occupation, license, or franchises."

373 Appellant strenuously insists that in that part of section 2, supra, quoted from above, franchises are declared to be property, that by section 3 all property is to be taxed under a uniform system of assessment, that the tax in question is a tax upon the corporate franchise of appellant, and therefore is a tax upon property, which can only be taxed in accordance with the value thereof, which value must be ascertained in the same manner as the value of other property is ascertained for the purpose of taxation. This contention, therefore, is that the act in question is void because it imposes a tax upon property not in proportion to its value, but by simply naming the amount to be paid in gross, regardless of the value of the thing upon which the tax is imposed. The question, therefore, turns upon the soundness or unsoundness of the foregoing contention.

By a reference to either the text or the title of the act, nothing is discoverable by which the tax in question is in terms stated to be a tax either upon property or upon franchises as such. As an affirmative argument, it is asserted that the mere right to be a corporation is a franchise, that franchises are by the constitution declared to be prop