Western Union Telegraph Company v. State Board of Assessment. 18 supra, it was held that a tax on the gross amount of sales of merchandise, which are gross receipts, 18 not a property or income tax, but an occupation or privilege tax, the amount regulated by the extent of the business done. In Board of Revenue v. Gas Light Co., 64 Ala. 269, and in State v. Board of Revenue, 73 Ala. 65, the tax was imposed on the net income, and not on the business. The money, held and owned by the company, as the net result of the business, was the subject of taxation. An income tax stands on different principles; its value is determinable; and the rules governing such tax are inapplicable to a tax on gross receipts. One of the recognized modes of taxing business is a tax on gross receipts, which generally are not regarded as property for taxing purposes. State v. P. W. & B. R. Co., 45 Md. 361; Phil. Con. Ins. v. Commonwealth, 98 Penn. St. 48; Sacramento v. Crocker, 16 Cal. 120; Warring v. Savannah, 60 Ga. 99; Winby v. Girardy, 31 La. Ann. 382. Taxable, as used in the fourth section, qualifies and designates property, not which it may be in the power of the legislature to make liable, but which is made liable, to taxation. The value of such property must be determined, before it can be ascertained that the rate of taxation imposed exceeds the rate limited by the Constitution. By what measure or criteria can the business be ascertained, which so largely depends upon the vigilance, energy and skill exercised in its prosecution? The gross receipts constitute no measure of value, for they may be large, and yet the business be valueless, by reason of losses, misfortune or mismanagement. Business, though made a subject of taxation, not being capable of determinate value, is not taxable property, in the meaning of the terms employed in the constitutional limitation of the rate of taxation. It is further insisted, that the section of the revenue law under consideration is violative of the Constitution, in that the rule of equality and uniformity is disregarded, by putting an arbitrary. value on the gross receipts of telegraph companies, and a different value on the gross receipts of other kinds of companies. The proposition, as stated in the argument of counsel is, "when income or gross receipts are taxed, everybody that is taxed in this State must be taxed alike." The fallacy of the proposition consists in the assumption, that the tax on gross receipts is levied by a standard of valuation, instead of by the character and extent of the business. Whilst there is no provision of the Constitution, commanding in terms equality and uniformity, the principle should underlie and VOL. LX — 14 Western Union Telegraph Company v. State Board of Assessment. regulate the provisions of every law imposing public burdens and charges. It is not controverted, that the taxing power may select the subjects of taxation, and constitutionally classify them. Taxes should be imposed on any subject, in just proportion to the benefits and protection which such subject receives more than other subjects of taxation. The rule of uniformity does not require that all subjects be taxed, nor taxed alike. The requirement is complied with, when the tax is levied equally and uniformly on all subjects of the same class and kind. It extends to the class upon which the tax shall operate. Different occupations may be taxed at different rates, and some may be altogether exempted; and the requirement of uniformity is not infringed, if the various classifications include all occupations similarly circumstanced and of the same kind. Moog v. Randolph, 77 Ala. 597; State Railroad Tax cases, 92 U. S. 575; Worth v. Wel. R. Co., 89 N. C. 291; s. c., 45 Am. Rep. 679; 15 Am. & Eng. R. Cas. 286; County of St. Mateo v. So. Pac. R. Co., 8 Am. & Eng. R. Cas. 1; Cooley Taxation, 170. The tax complained of may be onerous, and apparently unequal with the tax levied on the business of other corporations or companies. This is a matter submitted to the discretion and judgment of the legislature, and their action must be regarded as conclusive. The courts cannot interfere, unless an illegal or unauthorized exaction is attempted. A construction which limits the tax to gross receipts derived from business done between points, both of which are within the territorial limits of the State, is more restrictive than the words and purpose of the statute import. The legislature knew that the appellant company operated extensive telegraph lines from places beyond, into and through the State, and intended to make the tax commensurate with the benefits and protection received from the government. Receiving messages at offices located in the State, for transmission, and transmitting them without, is business done in this State, though the service may not be complete until the delivery to the sendee at some place beyond its boundaries. The statute does not purport to tax gross receipts not collected in Alabama, but by fair interpretation, includes all receipts derived from business done in this State, and actually received here, though the message may have to be delivered at, or may be sent for delivery from some office without the jurisdiction of the State. Though thus construed, the statute is not an unauthorized interference with inter-State commerce. This question is fully and ably considered and discussed Bolman v. Overall. in the following cases: Western U. Tel. Co. v. Richmond, 26 Gratt1; Western U. Tel. Co. v. State, 55 Texas, 314; Western U. Tel. Co. v. Mayer, supra; Port of Mobile v. Leloup, 76 Ala. 401, and is expressly decided in respect to a tax on the gross receipts of railroad companies, though consisting in part of freights received for transportation of merchandise from the State to another State, or into the State from another, in State Freight Tax cases, 15 Wall. 284; Osborne v. Mobile, 16 Wall. 479. Further discussion would be superfluous. Judgment affirmed. BOLMAN V. OVERALL, (80 Ala. 451.) Will-in consideration of services-specific performance. A will giving property to one in consideration of personal services rendered and to be rendered to the testator is valid, and may be enforced as a contract after the testator's death. (See note, p. 111.) ILL for specific performance. The opinion states the case. The bill was dismissed below. BILL F. G. Bromberg, for appellant. Overall & Bestor, contra. SOMERVILLE, J. The appeal is from a decree of the chancellor, sustaining a demurrer to the bill of complaint filed by the appellants for specific performance. The complainants are the legatees under the will of one Augusta Lohman, which instrument purported to be executed in consideration of valuable services rendered to her in her life-time by the complainants, and was executed on December 1, 1881, and delivered to Mrs. Louisa Bolman, who was made executrix of the will, and residuary legatee therein, and is one of the complainants. In April, 1883, the testator executed. another will in which she sought to revoke the previous one, with all of the legacies made under its provisions, and leaving her entire property to other beneficiaries. This will was duly probated, the defendant Overall being the executor therein, and the other defendants legatees. Bolman v. Overall. The bill, in the first place, alleges a verbal agreement made in March, 1876, between the complainant, Mrs. Bolman, and the deceased testator then living, by which it was agreed that the latter would leave to the complainants (Mrs. Bolman and her two daughters) all the property owned by her at her death, if they would come and nurse her and take care of her, she being then sick in bed and in a helpless condition. The bill avers a faithful performance of the duties assumed by the complainants for over seven years that from March, 1876, to February, 1883, they either went to the testator's residence, or else had her in their own, and nursed her in sickness, cooked and washed for her, and attended to all her wants, until she declined further to receive their attentions, and left their home against their expressed dissent, several years before her death, which did not occur until October, 1886. 1. No doubt can be entertained as to the nature of the paper, executed by Mrs. Lohman on December 1, 1881, and delivered by her to Mrs. Bolman, and purporting to be the testator's last will and testament. It is clearly a will in form, being testamentary in frame and verbiage. But it is also a contract, in essence and fact, being executed, as stated on the face of the paper, "in consideration of past and future treatment," and as shown by the bill, in furtherance of a previous parol agreement that it should be executed upon an admitted and specified valuable consideration. Cases are frequent in which instruments have been construed to be partly testamentary and partly contractual. And when based on a valuable consideration, a paper, in form a will may, especially when delivered to a party interested, or to another for him, constitute legally and in fact an irrevocable contract, Taylor v. Kelly, 31 Ala. 59; Kinnebrew v. Kinnebrew, 55 Ala. 628; Schouler Wills, §§ 452, 455. The purpose of the bill, as we construe it, is not to enforce the parol agreement, in which the deceased agreed to bequeath to complainants all the property she might own at the time of her death, but rather to enforce the modified agreement as evidenced by the written instrument, purporting to be a will. No question can properly arise therefore as to the influence of the statute of frauds, in view of the fact that real estate is involved in the transaction. There are many well considered cases however in which parol agreements of this character, executed on the side of the promisec, have Bolman v. Overall ben enforced even in relation to land. no occasion to comment at any length. But on these we have now Ch. 279; Shakespeare v. Markham, 10 Hun, 311. 2. There is nothing in this contract which is repugnant to public policy. All the authorities agree that one may, for a valuable consideration, renounce the absolute power to dispose of his estate at pleasure and bind himself by contract to dispose of his property by will to a particular person, and that such contract may be enforced in the courts after his decease, either by an action for its breach against the personal representative, or in a proper case by bill in the nature of specific performance against his heirs, devisees or personal representative. The validity of such agreements, as remarked by Mr. Freeman, in a recent note on this subject to the case of Johnson v. Hubbell, 10 N. J. Eq. 332; s. c., 66 Am. Dec. 773, 784, "is supported by an unbroken current of authorities, both English and American." Wright v. Tinsley, 30 Mo. 389; Parsell v. Stryker, 41 N. Y. 480. This principle does not embrace cases where services are rendered, or other valuable consideration parted with, in mere expectation of a legacy, and in reliance only on the testator's generosity. But there must be a contract, express or implied, stipulating for an agreed compensation by way of legacy or devise. Martin v. Wright, 15 Wend. 460. 3. The principle upon which courts of equity undertake to enforce the execution of such agreements is referable to its jurisdiction over the subject of specific performance. It is not claimed of course that any court has the power to compel a person to execute a last will and testament carrying out his agreement to bequeath a legacy, for this can be done only in the life-time of the testator, and no breach of the agreement can be assumed so long as he lives. And after his death he is no longer capable of doing the thing agreed by him to be done. But the theory on which the courts proceed is to construe such an agreement, unless void under the statute of frauds or for other reason. to bind the property of the testator or intestate so far as to fasten a trust on it in favor of the promisec, and to enforce such trust against the heirs and personal representatives of the deceased. or others holding under them charged with notice of the trust. It is in the nature of a covenant to stand seised to the use of the promisee, as if the promisor had agreed to retain a life estate in the property, with remainder to the promisee in the event the promisor owns it at the time of his death, |