Dixon v. Ricketts. property out of which legacies and distributive shares arose." Nothing appears in the case at bar which makes it an exception to this general rule. The title to the statute in question is as follows: "An Act to tax gifts, legacies, and inheritances in certain cases and provide for the collection of the tax." This title is substantially the same as the title to the statutes under consideration in the cases before referred to, which hold that the tax is imposed upon the right of devolution and succession, so that the title does not indicate, as claimed by appellant, that the tax is imposed only upon the separate portions of the decedent's estate, exceeding $10,000, transmitted by gift, legacy or inheritance. This brings us to the question of the constitution3 ality of the statute. Statutes of the same import have existed so long, and have been so uniformly sustained, that their constitutionality is no longer an open question. Mr. Justice McKenna, in the opinion. in Magoun v. Illinois Trust & Savings Bank, 170 U. S. 283, 18 Sup. Ct. 594, 42 L. Ed. 1037, said: "Legacy and inheritance taxes are not new in our laws. They have existed in Pennsylvania for over sixty years, and have been enacted in other States. They are not new in the laws of other countries. In State v. Alston, 94 Tenn. 674, 30 S. W. 750, 28 L. R. A. 178, Judge Wilkes gave a short history of them as follows: 'Such taxes were recognized by the Roman law. Gibbon's Decline and Fall of the Roman Empire, vol. 1, pp. 163, 164. They were adopted in England in 1780, and have been much extended since that date. Dowell's History of Taxation in England, 148; Acts 20 George III., c. 28; 45 George III., c. 28; 16 & 17 Victoria, c. 51; Green v. Croft, 2 H. Bl. 30; Hill v. Atkinson, 2 Meriv. 45. Such taxes are now in in force generally in the countries of Europe. Review of Reviews, February, 1893. In the United States they were enacted in Pennsylvania in 1826; Maryland, 1844; Delaware, 1869; West Virginia, 1887; and still more Dixon v. Ricketts. recently in Connecticut, New Jersey, Ohio, Maine, Massachusetts, in 1891; Tennessee, in 1891 (Ex. Sess. p. 50, c. 25, now repealed by chapter 174, p. 347, Acts 1893). They were adopted in North Carolina in 1846, but repealed in 1883; were enacted in Virginia in 1844, repealed in 1855, re-enacted in 1863, and repealed in 1884.' Other States have also enacted them-Minnesota, by constitutional provision. The constitutionality of the taxes has been declared, and the principles upon which they are based explained, in United States v. Perkins, 163 U. S. 625, 628, 16 Sup. Ct. 1073, 41 L. Ed. 287; Strode v. Commonwealth, 52 Pa. 181; Eyre v. Jacob, 14 Gratt. 422; Schoolfield v. Lynchburg, 78 Va. 366; State v. Dalrymple, 70 Md. 294, 17 Atl. 82, 3 L. R. A. 372; Clapp v. Mason, 94 U. S. 589, 24 L. Ed. 212; In re Merriam's Estate, 141 N. Y. 479, 36 N. E. 505; State v. Hamlin, 86 Me. 495; 25 L. R. A. 632; State v. Alston, 94 Tenn. 674; 28 L.R. A. 178; Re Wilmerding, 117 Cal. 281; Dos Passos, Collateral Inheritance Tax, 20; Minot v. Winthrop, 162 Mass. 113, 38 N. E. 512, 26 L. R. A. 259; Gelsthorpe v. Furnell, 20 Mont. 299, 51 Pac. 267, 39 L. R. A. 170. See, also, Scholey v. Rew, 23 Wall. 331, 23 L. Ed. 99. It is not necessary to review these cases, or state at length the reasoning by which they are supported. They are based on two principles: (1) An inheritance tax is not one on property, but one on the succession. (2) The right to take property by devise or descent is the creature of the law, and not a natural right-a privilege, and therefore the authority which confers it may impose conditions upon it. From these principles it is deduced that the States may tax the privilege, discriminate between relatives, and between these and strangers, and grant exemptions, and are not precluded from this power by the provisions of the respective State Constitutions requiring uniformity and equality of taxation." In addition to the cases cited by Mr. Justice McKenna in said case, see the following, to the same effect: Knowlton v. Moore, 178 U. S. 41, 26 Utah 15 26 226 27 385 26 226 30 22 Archibald v. Kolitz. 20 Sup. Ct. 747, 44 L. Ed. 969; Kochersperger v. Drake, 167 Ill. 122, 47 N. E. 321, 41 L. R. A. 446; In re Inheritance Tax, 23 Colo. 492, 48 Pac. 535. The trial court overruled the demurrer, whereupon, the defendant having elected to stand upon the demurrer, the court granted, in accordance with the prayer of the complaint, a peremptory writ of mandamus, directing the defendant, as executor of the last will and testament of James M. Ricketts, deceased, to pay to the plaintiff, as State Treasurer, the sum of $793.83, the tax sought to be collected. The demurrer was properly overruled, and the peremptory writ was properly issued. The judgment is affirmed, with costs. BARTCH, J., and MARIONEAUX, District Judge, concur. ANNA ARCHIBALD, Respondent, v. ANNA KO- No. 1445. (72 Pac. 935.) 1. New Trial: Chance Verdict: Burden of Proof. On a motion for a new trial on the ground that the verdict was determined by a resort to chance, the burden is on the movant to show such fact. 2. Same: Affidavits Held Insufficient. On a motion for a new trial on the ground that the verdict, which was for plaintiff, was returned by chance, affidavits of two jurors were to the effect that they were not in favor of a verdict for plaintiff; that each of seven of the jurors by secret ballot voted the amount he was willing to allow plaintiff, and the verdict was reached by dividing the sum of such amounts by seven. Counter affidavits by each of the other six jurors denied the above affidavits, and stated that the question of recovery was determined in favor of plaintiff, and then expressions of opinion were taken as to the amount of recovery, which ranged from $200 to $500, and after discussion a compromise at $375 was agreed on, not by chance, but by the jurors lowering or raising their estimates to that sum. Held, insufficient to show that the verdict was determined by chance Archibald v. Kolitz. (Decided June 30, 1903.) Appeal from the Second District Court, Weber County. -Hon. H. H. Rolapp, Judge. Action to recover damages for personal injuries alleged to have been occasioned by the negligence of the defendant's intestate. From a judgment in favor of the plaintiff, the defendant appealed. AFFIRMED. S. H. Lewis, Esq., and Thos. Maloney, Esq., for appellant. A. G. Horn, Esq., for respondent. BASKIN. C. J.,-In courts of general jurisdiction, under article 1, section 10, of the Constitution, the jury consists, in civil cases, of eight members, and threefourths of the members may find a verdict. In the case at bar a verdict was returned in favor of the plaintiff for $375. As stated in the appellant's brief, the most im 1 portant question involved is as to whether the record shows that the verdict, within the meaning of subdivision 2, section 3292, Revised Statutes 1898, was determined by a resort to chance. That it was so determined is one of the grounds alleged in the defendant's motion for a new trial, and the burden of showing that fact, on the motion, was upon her. 2 The affidavits of two of the jurors were read by defendant in support of her motion. On of them, Henry Hudman, deposed as follows: "The way in which a verdict was reached for the plaintiff in the above-entitled action is as follows, viz.: There was an agreement between seven of the jurors to write down. on a separate piece of paper the amounts which each of the seven jurors was willing to give to the plaintiff in the way of assessing damages, and neither of the said Archibald v. Kolitz. seven jurors was to let any other juror know the amount he was willing to assess as damages for the plaintiff; and after the seven jurors had so voted the agreement was that seven several sums should be added together, and the sum total was to be divided by seven, and the result or quotient was to be the verdict for the plaintiff. The agreement was to be binding on each of the jurors. After the voting, and counting or adding up the various amounts, and dividing the sum by seven, under the agreement made and entered into, the quotient was to be the sum or amount of the verdict in favor of the plaintiff. After this voting, addition, and division, there was nothing more done. It ended at the result of the calculation. I was of the opinion that the facts proven in the case did not justify us in giving the plaintiff any sum whatever." C. W. Rounds, the other juror, deposed as follows: "Personally, I did not think that the facts warranted the jury in giving any damages whatever to the plaintiff. This is the way the verdict was reached: Each of seven of the jurors voted or placed the amount he was willing to give the plaintiff on a separate piece of paper, and added the several amounts together, and then divided the sum by the number of jurors so voting, and the agreement was that the result should be the amount of damages the jury would give to the plaintiff; and, after the vote, the addition, and division, there was no further discussion or consideration of the question whatever. Neither juror knew the amount the other was to vote." A counter affidavit was read by plaintiff, in which each of the other six jurors for himself deposed: "That he was one of the jurors who sat in the above-entitled cause when the same was tried in the said court; that he has heard read the affidavits of C. W. Rounds and Henry Hudman, and states that the matters therein stated are not correct, and that the verdict in said action was arrived at as follows: That after the jury had determind the question of recovery in favor of plaintiff an expression was taken from each of the jurors as to what |