of all taxes. The tax is a tax on property received during the year over four thousand dollars, not a tax of so much a person on all persons having an income of over four thousand.

The third argument against the tax is that it is unequal— that is, falling on persons or things of the same class unequally. There are many supposed inequalities pointed out. One of the chief is as follows: If I have an income from the bonds and stock of corporations, I have to pay the tax, even though I have an income of less than four thousand dallars a year. I suppose it will be admitted by all that a tax on the dividends of corporations is constitutional; also that there is no constitutional prohibition against taxing two subjects in the same tax law. It seems to us that this is all that Congress has done in the act in question. They have not taxed one person twice for the same property, and another person once for the same species of property; but they have taxed all incomes from corporations and all incomes which exceed four thousand dollars, allowing those persons who have already paid a tax on corporation stocks and bonds to deduct that tax from the income tax which they would otherwise have to pay. Wherein, as a result of the whole law, is a man who has to pay an income tax, because his income is over four thousand dollars, better or worse off, because of the possession of property in corporations? The man who has not an income of four thousand dollars cannot complain if the United States chooses to tax his income from a specific class of property.

Another complication of the law is the tax on incomes from inheritances of personal property. All men who receive inheritances are not taxed, but only those who receive inheritances of personalty which, coupled with their income during that year, exceed the sum of four thousand dollars. We fail to see why, if Congress can fix any lower limit of taxation on money received during the year, they cannot particularize what shall be considered income. Declaring that money from gift or devise shall be considered as income for the purposes of the assessment, and selecting a definite class of property, so received, as personal property, does not viciate the tax other

wise constitutional. This last claim of inequality, therefore, really comes back to what we have stated to be, in our opinion, the crucial point of the case; that is, whether Congress can draw any lines in an income tax, exempting incomes under a particular figure.

We might also point out that on the decision of this point there depends another and still more important question. If Congress cannot draw any lines, below which incomes will be exempt, neither can they draw any lines making different rates of taxation for different incomes, as all incomes above five thousand dollars, three per cent., between four and five thousand, two per cent, and under four thousand, one per cent. Thus an adverse decision of the court in this case would prevent Congress from passing what is known as proportional income tax, or a proportional tax of any kind. If this present tax is unconstitutional on the ground of inequality, the income tax of 1862 was void. That law taxed incomes over six hundred doliars, at the rate of three per cent., while incomes over three thousand dollars paid five per

cent.

HOWE v. OHMART. 7 Ind. App. 32; 33 N. E. 466. INDIANA APPELLATE COURT. FEBRUARY 28th and JUNE 12, 1893.

REINHARD, C. J.-This was an action to recover damages for injures inflicted upon the plaintiff below by falling through an opening in the floor of the defendant's school building, where he had gone under the following circumstances: The plaintiff had been a former student at the school, and upon the evening in question had returned at the invitation of certain of the students to attend the meeting of a literary society, of which they were members. The meeting was held, and the invitation to plaintiff (with those to others) was sent out with the approval of the college authorities, who furnished light and heat for the occasion. The plaintiff left the meeting-room, alone, upon a necessary purpose, and turning into a hallway fell into an opening in the floor, which had been only partially protected, and received the injury for which he complained.

The defence, beside that of contributory negligence was upon the ground that the plaintiff was merely a trespasser or at most a licensee, to whom no duty of care was owed, and to whom they were consequently not liable. Upon the above suggested evidence the court held that "the jury were justified in drawing the inference that the appellee was neither a trespasser nor a mere licensee, but was there upon at least the implied invitation of the college authorities." . . . " and that the appellants owed him the duty to protect him from dan

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gerous pitfalls or other obstructions when he was in the building.

Verdict for the plaintiff affirmed, and a rehearing was subsequently denied.

THE DISTINCTION BETWEEN The Liability oF A PROPERTY OWNER FOR INJURIES TO GUESTS AND TO INVITED PERSONS.

That the insufficiency of language has been the cause of much uncertainty in the law, as well as in other branches of learning, is demonstrated by a consideration of the principles involved in this case. It has been unquestioned law for many years that the owner or occupier of real estate owes certain duties to those who come thereon, according to the cause of their entry, and the nature of the danger to which they are exposed. To trespassers it is only against active injury, to licensees it is to give notice of hidden dangers or traps, while to invited persons (as that term is understood by the law), the owner is bound to use reasonable care, having respect to the person and character of the business to be carried on to save his guest from injury while upon the premises. But the difficulty which is instantly met in this class of cases, is to distinguish between licensees and invited persons. In other words to ascertain the exact scope of the word “invitation ' as legally used. The language cited with approval in the principal case from Evansville, &c., R. R. v. Griffin, 100 Ind. 221, is characteristic of that found in many. "If the owner or occupant of lands, by any enticement, allurement or inducement, causes others to come upon or over his lands, then he assumes the obligation to persons so coming to provide a reasonably safe and suitable way for the purpose." The latitude in these words, however, is so great as to render them of very little practical value, for they can easily be stretched to cover a great many cases which no court would include within the invitation class. Indeed, the earliest case in which the property owners' liability to guests was considered, is against a liberal construction. In Southcote v. Stanley, 1 H. & N. 247 (1856), the plaintiff was the guest of the proprietors of a hotel, and was injured by the breaking of a glass door, which

was in an unsafe condition. The court refused a recovery, POLLOCK, C. B., upon the ground that a social visitor must be considered as a member of the family into which he comes, and consequently entitled to no greater care. "Whilst he remains there," said the Chief Baron," he is in the same position as any other member of the establishment so far as regards the negligence of the master or his servants." And Baron BramWELL, upon the ground that he was a licensee only, and entitled to no special care, saying, “If a person ask a visitor to sleep in his house and the former omitted to see that the sheets were properly aired, whereby the visitor caught cold, he could maintain no action, for there was no act of commission, but simply of omission." The extreme position of Baron POLLOCK has never been accepted and cannot be maintained: Pollock on Torts, * 427; Clerk v. Lindsell on Torts, 59.

And while the general thought of Baron BRAMWell is less open to attack, the illustration is not good, for if a person ask another to sleep in his bed, he is bound in common prudence (which is the test of all these relative duties) to see that the bed is as safe as such places usually are, and a simple warning of a possible danger will not, it is submitted, be sufficient.

This decision has been sufficient, however, to justify a number of writers in saying, that the test of “Invitation " is direct or indirect pecuniary gain, and that a guest in the ordinary acceptation of the word is not an invited person at all, but simply a licensee.

Thus Campbell (on Negligence), says: “Invitation is inferred where there is a common interest or mutual advantage, while a licensee is inferred where the object is the mere pleasure or benefit of the person using it." And again, "Invitation therefore, in the technical sense of the word, differs from invitation in the ordinary sense-implying the relation of host and guest. In the case of host and guest it, would be thought hard that the hospitality of the former should expose him to the responsibilities implied by the business relation. The guest must take the premises as he finds them, with any risk of their disrepair; although the host is bound to warn his guest of any concealed danger upon the premises known to himself.”