State of Ohio ex rel. v. Ferris.

Swift, 137 N. Y.,77; Matter of Knoedler, 140 N. Y., 377; Curry v. Spencer, 61 N. H., 624; State v. IIamlin, 30 Atl. Rep., 76; Minot v. Winthrop, 38 N. E. Rep., 512.

VI. The general rule of uniformity underlying all taxation admits of classification and therefore exemption. Under the general grant of legislative power, the general assembly may classify subjects for taxation, and adopt such methods of raising revenue as in its judgment may result not only in an equality of burdens, but in the promotion of the interests to the state and the welfare of the people. Chicago Railroad Company v. Iowa, 94 U. S., 155; Railway Company v. Connelly, 10 Ohio St., 160.

VII. The so-called exemption of estates not exceeding $20,000, in value, and the graduated rate on estates exceeding $20,000, is a proper exercise of the legislative power, not wholly to classify subjects for taxation, but to regulate the privilege of transmitting and receiving property under will or by descent.

In considering the feature of the graduated scale of the tax, the court must look at it not simply as a means of raising revenue, but as a means of regulating the transfer of property after death.

This law should not be sustained simply on the ground that the state has the right to tax the privilege of inheritance. Along with the right to tax must be the right to regulate. And in this case, the legislature passed the law not simply to raise revenue, but to regulate the transmission of estates, the descent or devolution of property by will or under the intestate laws.

In opposition to the law the contention amounts to this:

State of Ohio ex rel. v. Ferris.

1. The tax is on property because

(a) It is for general revenue, and no tax can be levied for that purpose except on property.

(b) By the terms of the act, the tax is nominally and in effect laid upon property.

2. Being a tax on property, it violates in several respects section 2, article XII.

3. If not a tax upon property, still the exemption and the graduated rate violate the principle of uniformity which must underlie all taxation.

Thomas McDougall; Alfred Cassett; Paxton, Warrington & Boutet; Edward S. Rawson; W. F. Ampt; J. Shroder and Boynton & Horr, for defendant in

error.

The title of the act alone shows that it is merely a fiscal measure. It is an act to impose a direct inheritance tax. Burgett v. Burgett, 1 Ohio, 480; Bronson v. Oberlin, 41 Ohio St., 483; State v. Pugh, 43 Ohio St., 113; U. S. v. Fisher, 2 Cranch, 358; U. S. v. Palmer, 3 Wheat., 610; Railway v. State, 49 Ohio St., 189; Mayor v. Second Ave. R. R. Co., 32 N. Y., 273; Mayor v. Third Ave. Ry. Co., 23 N. Y., 42; Jackson v. Newman, 59 Miss., 385; State v. Columbia,5 Rich. (S. C. N. S.), 6–7; North Hudson Co. Ry. v. Hoboken, 41 N. J. L., 71; Kip v. City of Patterson, 26 N. J. L., 298.

Taxes upon the privilege of succession, which are for revenue in whole or in part, must be by uniform rate. Hill v. Higdon, 5 Ohio St., 243; Reeves v. Treas. of Wood Co., 8 Ohio St., 333; Northern Indiana R. R. Co. v. Connelly, 10 Ohio St., 159; City of Zanesville v. Auditor, 5 Ohio St., 592; City of St. Louis v. Spiegel, 75 Mo., 145; Cooley on Taxation, 2; Cooley's Const. Lim. (6th ed.), 615; Sanderson v. Mann, 76 Wis., 477; Bank

State of Ohio ex rel. v. Ferris.

v. Hines, 3 Ohio St., 1; Zanesville v. Richards, 5 Ohio St., 592; Cincinnati Gas Light & Coke Co. v. State, 18 Ohio St., 242; State v. Frame, 39 Ohio St., 399; Senior v. Ratterman, 44 Ohio St., 677; Wasson v. Commissioners, 49 Ohio St., 622; Anderson v. Brewster, 44 Ohio St., 576; Marmet v. State, 45 Ohio St., 63; Field v. Commissioners, 36 Ohio St., 476; Bowles v. State, 37 Ohio St., 35; Carlisle v. Hetherington, 47 Ohio St., 248; Woodbury v. Berry, 18 Ohio St., 456; State v. Pugh, 25 Ohio St., 26; Woodworth v. State, 26 Ohio St., 196; Tourney v. Yeoman, 14 Ohio St., 208; Grogan v. Garrison, 27 Ohio St., 50; Last Will etc., Hathaway, 4 Ohio St., 385; Commonwealth v. Smith, 5 Pa. St., 142; Bittinger's Estate, 129 Pa. St., 344.

If the act be construed as a regulation of a privilege, it violates section 26, article 2, of the Ohio Constitution and the last clause of amendment XIV to the Federal Constitution; McGill v. State, 34 Ohio St., 228; State v. Ellet, 47 Ohio St., 93; Kelley v. State, 6 Ohio St., 269; Commissioners v. Rosche Bros., 50 Ohio St., 103.

The conclusion is inevitable, that whether we treat the privilege of succession or the persons enjoying that privilege as the true subject of classification under this statute, there is but a single class and that class cannot be subdivided. If it be treated as a privileged class to be taxed according to value, then it ought to be taxed according to the value of the thing received, not according to the value of the estate from which it was received. That such classification is condemned by this court, we confidently submit is proved by the principles laid down in Costello v. Wyoming, 49 Ohio St., 202; Bronson v. Oberlin, 41 Ohio St., 481; City of Kenton v. State ex rel., 32 W. L. B., 334;

State of Ohio ex rel. v. Ferris.

Minnesota et al. v. Gorman, 40 Minn., 232; Curry v. Spencer, 61 N. H., 624; State v. U. S. & Can. Exp. Co., 60 N. H., 219; State ex rel. Mann, 76 Wis., 469; Barbier v. Connolly, 113 U. S., 27; Ky. R. R. Tax Cases, 115 U. S., 321; Bell's Gap R. R. Co. v. Pa., 134 U. S., 232; Home Ins. Co. v. N. Y. State, 134 U. S., 594; Pacific Express v. Seibert, 142 U. S., 338; Soon Hing v. Crowley, 113 U. S., 703.

It is significant, too, that in New York, Pennsylvania, Massachusetts, Maine, Maryland, Virginia, and North Carolina, the states where, under the peculiar features of their constitutions, inheritance taxes have been upheld, the statutes in each instance imposed a uniform rate of taxation. But it is argued by our learned adversaries that the right to make any exemption implies the further right to make gradations of variances in the rates to be imposed. This argument assumes that there is a right to make an exemption. But does it follow from this assumed right that the rule of uniformity can be ignored and violated as to the privilege of succession intended to be taxed? Ould & Carrington v. City of Richmond, 23 Grat., 464; Allen v. Drew, 44 Vt., 174; Pollock v. Farmers' Loan & Trust Co., 15 Supreme Ct. Rep., 695.

The court is here asked to recall and bear in mind all that has been shown in support of our claim of want of uniformity of the scheme of taxes imposed. If the showing there made are at all correct; it seems to us clear that the act is also violative of that part of amendment XIV section 1, of the Constitution of the United States. San Mateo v. Railroad, 13 Fed. Rep., 722; County of Santa Clara v. Southern Pac. R. Co., 18 Fed. Rep., 185; State v. Express Co., 60 N. H., 219.

State of Ohio ex rel. v. Ferris.

Brief of Thomas McDougall and Alfred C. Cassett. The tax in question is uniformly referred to as a tax on property, and questions arising under the law decided accordingly in the following cases: In re Short's estate, 16 Pa. St., 62; Hood's estate, 21 Pa. St., 106; Strode v. Commonwealth, 52 Pa. St., 181; Clymer v. Commonwealth, 52 Pa. St., 189; Commonwealth v. Coleman's Admrs., 52 Pa. St., 468; Drayton's Appeal, 61 Pa. St., 172; Miller v. Commonwealth, 111 Pa. St., 321; Commonwealth's Appeal, 129 Pa. St., 338.

The law thus presents all the features of a law taxing property. There is no inconsistency in its provisions as such a law, and the legislature has the right to levy a tax on property. This being true, it is not within the province of the court to disregard the plain language of the statute and conjecture what the legislature might have meant. Last Will, etc., of Hathaway, 4 Ohio St., 383; Woodbury v. Berry, 18 Ohio St., 456; State v. Peck, 25 Ohio St., 26; Grogan v. Harrison, 27 Ohio St., 50.

We freely admit that article 12, section 2, does not contain the grant of the taxing power; that it is but a limitation on the right to tax which is contained in the general grant of legislative power. Zanesville v. Richards, 5 Ohio St., 589; Hill v. Higdon, 5 Ohio St. 243; Reeves v. Treasurer, 8 Ohio St., 333; Baker v. The City of Cincinnati, 11 Ohio St., 534; Cincinnati Gas Light & Coke Co., v. The State, 18 Ohio St., 237; State v. Frame, 39 Ohio St., 399.

The direct inheritance tax law violates article 12, section 2, of the constitution of Ohio. First:-This law causes the same property to be taxed twice, in some cases more than twice in the same year. Brown v. Maryland, 12 Wheat., 436; Welton v. State of Missouri, 91 U.S., 275; Telegraph Co. v.