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ated.

Such a tax is a direct tax upon the thing devised in the hands of the devisee, and it is a tax which the state is powerless to enforce, hence the collateral inher itance law of Pennsylvania, passed in 1887, which sought to tax real estate situated in Maryland, was, pro tanto, held unconstitutional, or, at least, incapable of enforcement.48

49

In Commonwealth's Appeal, Paxson, J., said: “While it is conceded that the powers of the state for taxing purposes are very great, they are necessarily limited to either property or persons within her borders. All property of the citizen within the state may be taxed, and all such property outside the state as is drawn to or follows in law the person or domicile of the owner, such as bonds and mortgages, moneys at interest, etc., no matter where situIt may be that the state might impose a succession tax upon every citizen of the state who succeeds to either real or personal property, from whatever source derived. This is not such a tax. It is a direct tax upon the thing devised in the hands of the devisee, a tax which the state is powerless to enforce." 50

ate.

#

throp (1894) 162 Mass. 113, 38 N. E. 512; State v. Hamlin (1894) 86 Me. 502, 30 Atl. 76.

48 Appeal of Commonwealth (Bittinger's Estate; 1889) 129 Pa. St. 338, 18 Atl. 132, distinguishing Com. v. Smith, 5 Pa. St. 142. The court declined to pass upon the constitutional question raised by the title of the act. See Del Busto's Estate, 23 Wkly. Notes Cas. 111. See, also, Com. v. Coleman, 52 Pa. St. 468; Kintzing v. Hutchinson (U. S. Cir. Ct.; 1877) 34 Leg. Int. 365, Fed. Cas. No. 7,834; Drayton's Appeal, 61 Pa. St. 172; Miller v. Com., 111 Pa. St. 321, 2 Atl. 492; Hocd's Estate, 21 Pa. St. 106; In re Hale's Estate (1894) 161 Pa. St. 181, 28 Atl. 1071. See Williamson's Estate (1893) 153 Pa. St. 508, 26 Atl. 246, and 32 Am. Law Rev. (N. S.) 472, and note by H. W. Page. In re Wolfe's Estate, 19 N. Y. St. Rep. 263; In re Swift, 137 N. Y. 77, 32 N. E. 1096.

49 Appeal of Commonwealth, supra.

50 But see In re Howard, 5 Dem. Sur. 483; In re McPherson, 104 N. Y. 306, 10 N. E. 685.

This rule does not, however, apply where land outside of the taxing state is directed by will to be converted into personalty.51 It is then deemed personalty, and in some states is subject to the tax law of the owner's domicile.52

The contrary view of this subject has been taken under the New York statutes, but the law of equitable conversion has not been thoroughly considered in that state with reference to the inheritance tax.53

§ 16.

As to Being a General or Special Tax Law. It has been held to be a general, and not a special, law, and thus constitutional, as such, within the law of Maryland; while in New York, and some other states, it has been held to be a special tax, but valid as such.55

54

The constitution of Michigan 56 provides that all specific taxes, except those received from certain mining companies,

51 See the subject considered chapter 4, § 46, subd. (b).

52 Miller v. Com. (1886) 111 Pa. St. 321, 2 Atl. 492; Williamson's Estate (1893) 153 Pa. St. 508, 26 Atl. 246, and 32 Am. Law Rev. (N. S.) 472, and note by H. W. Page, Esq., entitled "Collateral Inheritance Tax. Conversion of Land outside of State." See, also, Hale's Es tate (1894) 161 Pa. St. 181, 28 Atl. 1071, where the preceding cases are distinguished. See In re Howard, 5 Dem. Sur. 486; In re Wheeler's Estate, 1 Misc. Rep. 450, 22 N. Y. Supp. 1075, 1078, and cases cited. Chapter 4, § 46 (b). Contra, In re Swift, 137 N. Y. 77, 32 N. E. 1096; In re Secor's Estate, N. Y. Law J. (June 22, 1893) p. 779. 53 See cases supra. Also, In re Raymond (Nov. 19, 1894) 12 N. Y. Law J. 453; Sherrill v. Christ Church (1890) 121 N. Y. 701, 25 N. E. 50; In re Curtis, 142 N. Y. 221, 36 N. E. 887; Hale's Estate, supra. 54 Montague v. State (1880) 54 Md. 482.

65 In re McPherson (1887) 104 N. Y. 306, 10 N. E. 685; In re Will of Enston, 113 N. Y. 178, 21 N. E. 87; Eyre v. Jacob, 14 Grat. 436; Tyson v. State (1868) 28 Md. 577; State v. Dalrymple, 70 Md. 294, 17 Atl. 82; In re Sherwell's Estate (1891) 125 N. Y. 379, 26 N. E. 464, affirming 58 Hun, C08, 12 N. Y. Supp. 200.

56 Article 14, § 1.

shall be applied in paying interest on certain educational funds and the state debt, until paid, and thereafter shall be added to the primary school interest fund.

The act of that state, passed in 1893,57 taxing certain transfers of property by gift or inheritance, and providing that the taxes collected thereunder should be paid into the state treasury, and applied "to the expenses of the state government and to such other purposes as the legislature shall by law direct," was declared unconstitutional as conflicting with the above provisions. 58

$ 17. Not a Poll Tax.

It is not within the constitutional prohibition against levying a poll tax, exempting paupers, etc.59

§ 18. As to Being an Equal and Uniform Tax.

Nor does a law imposing such tax conflict with a general constitutional requirement that all taxes shall be equal and uniform within the state, or apportioned and assessed equally.1

67 Act No. 205, Pub. Acts 1893, p. 344.

58 Chambe v. Durfee (1894) 100 Mich. 112, 58 N. W. 661.

59 Tyson v. State, 28 Md. 577.

61 Eyre v. Jacob (1858) 14 Grat. 427; Tyson v. State, 28 Md. 577; Pullen v. Commissioners of Wake Co. (1872) 66 N. C. 361; Peters v. City of Lynchburg (1882) 76 Va. 927; Schoolfield v. City of Lynchburg (1884) 78 Va. 367; State v. Hamlin (1894) 86 Me. 502, 30 AtI. 76; Minot v. Winthrop (1894) 162 Mass. 116, 38 N. E. 516. Contra, Curry v. Spencer, 61 N. H. 630, where Blodgett, J., criticising Eyre v. Jacob and Tyson v. State, supra, said: "It is apparent that these decisions can have no weight in New Hampshire; and immunity from dispro portional taxation being expressly reserved in our bill of rights, and the power of proportional taxation only being granted to the legis lature by the constitution, we are unaware of any ground upon which

These provisions contemplate only the general recurring assessment upon the same property, and do not include occasional, exceptional, and special subjects and modes of taxation, like the inheritance and other privilege taxes."2

The terms "equal" and "uniform" apply only to a direct tax on property, and do not limit the power of the legislature as to the object of the tax. They are intended to prevent an arbitrary tax on property, according to kind or quality, without regard to value.63

While providing for a uniform mode of taxation on property, it was not the purpose of the constitution to prohibit any other species of tax, but to leave the legislature the pow er to impose such other taxes as the interests of the government might require.64

Where the tax is made to apply to every estate which is bequeathed or devised to, or inherited by, the person specified in the act, it is equal, and free from objections on legal

the statute under consideration can be upheld; for, if it is to be re garded as a tax on property, it is open to the objection of unequal and double taxation, and if it is to be regarded as a tax on a civil right or privilege it is discriminating and disproportional." It may be said that this decision is in conflict with every well-considered adjudication upon this subject. See State v. Ferris (April, 1895) 9 Ohio Cir. Ct. R. 299, affirmed as State ex rel. v. Ferris, 23 Wkly. Law Bul. (Ohio) July 1, 1895, 349, 352. Opinion will be published in N. E. Rep. as soon as handed down.

62 State v. Hamlin, supra.

es Id.; decisions supra.

6+ Tyson v. State, 28 Md. 577; State v. Dalrymple, supra; Bell's Gap R. Co. v. Pennsylvania, 134 U. S. 237, 10 Sup. Ct. 533. A statute of Minnesota requiring, as a condition precedent to probate proceedings for the settlement of estates, the payment to the county treasurer of specified sums arbitrarily prescribed with reference to the value of the estate, held unconstitutional, being contrary to the requirement of equality of taxation and the dispensation of justice freely and without purchase. State v. Gorman, 40 Minn. 232, 41 N. W. 948; State v. Mann, 76 Wis. 469, 45 N. W. 530; Bradford v. Jones, 1 Md. 3C8; Harrison v. Willis, 7 Heisk. 35.

65

grounds. So in Minot v. Winthrop " the court said, in referring to the Massachusetts statute: "The tax imposed by the statute we are considering is said to be unequal because it is not imposed upon all estates, and upon all heirs, devisees, legatees, and distributees. To make a distinction between collateral kindred or strangers in blood and kindred in the direct lines in reference to the assessment of such a tax, either by exempting the kindred in the direct line, or by imposing on collaterals and strangers a higher rate of taxation, has the sanction of nearly all states which have levied taxes of this kind. It has a sanction in reason, for the moral claim of collaterals and strangers is less than that of kindred in the direct line, and the privilege is therefore greater. The tax imposed by this statute is uniformly imposed upon all estates and all persons within the description contained in it, and the tax is not plainly and grossly oppressive in amount."

The direct inheritance tax of Ohio 7 has been declared unconstitutional, as violating the rule of uniformity and equality, in that the exemptions under the act were restricted to estates of a certain class, and did not include all per

sons.

*

*

Smith, J., in the lower court, said: "But all laws comprising such excise taxes must, in accordance with the reason and spirit of the constitution, be uniform in their operation.68 Nor can they be upheld if substantially and necessarily unequal and unjust. In our judgment, the statute in question is in contravention of this principle. It provides 69 that 'when the value of the entire property of such decedent exceeds the sum of $20,000, and

65 In re Sherwell's Estate, 125 N. Y. 379, 26 N. E. 464.

66 Supra.

67 Appendix, VI. c, Act 1894 (91 Ohio Laws, p. 166.)

68 Citing Northern Indiana R. Co. v. Connelly, 10 Ohio St. 160. 69 Laws Ohio 1894, p. 166, § 1, Appendix, VI. b.

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