The Birmingham age-herald., 1920-04-25
in this constitutional limitation" (secton 214 of constitution)
 The courts answer to each ques-

It went back through the pages of records of the supreme court of Ala bama to show that the court had al- ways regarded an income as property.
 After citing various decisions in sup port of it's ruling, the majority opinion is summarized as follows:
 Money or any other thing of value,
 acquired as gain or profit from capital or labor, is property; in the aggregate
 the acquisitions constitute income ano
 in accordance with the axiom that the
 whole includes all of it's parts, income
 includes property and nothing but
 property and therefore is itself prop
 erty. This conclusion Is so clear that we cannot regard it as debatable and
 we have discussed the question at such length chiefly out of deferencs
 to the learned counsel for the state
 who have undertaken to refute 1t upon reason and upon cited authority"
 Chief Justice Anderson wrote dis senting opinion in which he agreed with the majority that an income Is property and therefore subject to lim-
 tations of sections 214, but he con- tended that the supreme court could strike the excess which would permit the levy of a tax of 65 cents on each $100. He contended that as the legisla- ture levied tax of per cent and over It certainly intended to levy as much as G5-100 of 1 per cent, and that in striking the excess the supreme court would not be entering the realm of the legislative department He said it would be judi cial butchery to emasculate the entire provision simply because the rate is ex- cessive."
 MCCLELLAN DISSENTS
 Associate Justice Mcclellan. in a dis -senting opinion, agreed with Judge An derson, but went further and contended that while income held at a specific time is property, income spent before that time could not be c1assed as prop erty and that the legislature would have right to levy an income tax on incomes regardless of constitutional limitations when they were passed on in the channels of trade before the be- ginning of the tax year or at the tax accounting period.
 However Justice Mcclellan. assuming that the majority was correct ill it's conclusion that all income Is property, agreed with Justice Anderson that the income tax law was invalid only to the extent that the rate fixed is in excess of the limitation prescribed by the con stitution.
 Answering Chief Justice Anderson's contention that an income tax Is invalid only insofar as 1t exceeds the limitation of the constitution, the majority opinion said:
 'In our desire to avoid the complete notification of this important legisla- tive provision. we have given serious and anxious consideration to that suggestion (Justce Anderson s). We have, however. reached the conclusion that to declare it law in that amended form would be, in effect, nothing less than judicial leg islation, and would be 2 dangerous de- parture from the settled b6les that govern courts in respect to such legislation. The matter of it's rate permeated every part and entered into every aspect of the levy. It is clear that the legislature did not intend to tax all incomes alike and whether they would have allowed any ex- emptions at all, in what amounts, under a flat rate levy of 65-100 of per centum, and how they would have dealt with other features of the scheme. we cannot say except as a matter of the sheerest cof- jecture."
 The decision of the supreme court was rend ndered in the case of Eliasberg Broth CTS Mercantile Company vs. w. C. Grimes, from the Dallas circuit court. The lower court held the income tax sec tions to be invalid and the decision Of the supreme court affirmed the lower courts decision.