cation of the proceeds. The fact that the object is a public purpose will not aid an unconstitutional statute.5

'State v. Switzler, 143 Mo. 287, 326, 45 S. W. 245, 40 L. R. A. 280, 65 Am. St. Rep. 653; followed in Simmons Medicine Co. v. Ziegenhein, 145 Mo. 368, 47 S. W. 10.

State v. Mann, 76 Wis. 469, 477, 45 N. W. 526, 46 N. W. 51. 'Chambe v. Durfee, 100 Mich. 112, 58 N. W. 661.

4 Union Trust Co. v. Durfee, 125 Mich. 487, 84 N. W. 1101, 7 Detroit Leg. N. 597.

'As the New Hampshire act of 1878 is unconstitutional, the fact that its object was "to defray the cost of probate courts" is not entitled to any weight because the constitutional rule of equality cannot be limited or qualified by any consideration of expediency or convenience. The purpose of the act cannot change its character in this respect. Curry v. Spencer, 61 N. H. 624, 631, 60 Am. St. Rep. 337.

Sec. 40. Validity of Appropriation to Special Fund.

The Missouri constitution provides that all revenue in money received by the state shall go into the treasury and that all appropriations shall be made in the order set forth in the section. was argued that this means that all revenue shall go into one common general fund unfettered and unpledged and that these words prohibit the creation of any special fund in the treasury to be supplied out of revenue provided by the general assembly; and that therefore the Missouri act of 1899, which provided that the receipts from the inheritance tax should be accredited to the "State Seminary moneys," was rendered void. The court replies that the constitution itself provides elsewhere for special funds and holds that the constitution simply requires the general assembly to proceed in the order designated in passing its appropriation bills. In prescribing the order for the passage of the appropriation bill there was no intention to create special liens upon the money in the treasury or give any priority of payment to one appropriation over another.

It was contended that the act of 1899, which provides that the receipts from the inheritance tax law shall be appropriated to the state university, is itself an appropriation of the money, as every dollar raised thereby is instantly and perpetually appropriated to the maintenance of the university. The court replies that the statute itself forbids expenditure save in pursuance of regular appropriat ons of the general assembly.

State v. Henderson, 160 Mo. 190, 211, 213, 60 S. W. 1093.

Sec. 41. Assigning to Probate Courts the Duty of Appraisal and Collection.

It is proper to assign to the probate courts the duty of collecting the tax. Such duties are necessarily incident to the settlement of the estates and may be properly performed by the judge of probate.1

It was claimed that Wisconsin statute of 1903, c. 44, is unconstitutional because it commits the appraisal of property and the fixing of the amount of the tax to the county court, and these are claimed to be administrative and not judicial duties. The court replies that this is not so, that the court simply determines in a judicial way certain facts necessary to be ascertained to determine how much the tax fixed by the law amounts to in a given case. These duties are judicial in their character and very properly entrusted to the county court in which the estate is being administered.2

1 Union Trust Co. v. Durfee, 125 Mich. 487, 84 N. W. 1101, 7 Detroit Leg. N. 597, quoting State v. Gloucester Circuit Judge, 50 N. J. L. 585, 611, 15 A. 272, 1 L. R. A. 86. See further, post, s. 325, 377.

2 Nunnemacher v. State, 129 Wis. 190, 223, 108 N. W. 627, 9 L. R. A. N. S. 121.

Sec. 42.

Omission of Provisions for Collection.

An omission from the act of any machinery to collect the taxes due under it does not render it invalid.1 Where the act clearly creates a liability on the part of recipients of inherited estates to pay the amount of any tax to the county treasurer for the use of the state, there is no reason why the county treasurer might not maintain an ordinary action based upon the liability that thus is created to pay, against the beneficiaries to recover the tax for the use of the state.2

1 Neilson v. Russell (N. J. 1908) 76 N. J. L. 27, 42, 69 A. 476, 482, reversed on another ground in 76 N. J. L. 655, 71 A. 286. See further, post, s. 396.

2 In re McKennan, (S. D.,) 130 N. W. 33, reversing judgment on rehearing in 25 S. D. 369, 126 N. W. 611.

Sec. 43. Proceedings to Test Validity.

Proceedings to test the validity of inheritance tax statutes depend on local practice, and are commonly brought up by prohibition' or by certiorari,2 or quo warranto3 or possibly by injunction,* or mandamus may be brought against the court to compel it to assess the tax.5

1Chambe v. Durfee, 100 Mich. 112, 58 N. W. 661. Union Trust Co. v. Durfee, 125 Mich. 487, 84 N. W. 1101, 7 Detroit Leg. N. 597.

2 State v. Henderson, 160 Mo. 190, 60 S. W. 1093. State v. District Court, 41 Mont. 357, 109 P. 438.

State v. Guilbert, 70 Ohio St. 229, 225, 71 N. E. 636.

Eyre v. Jacob, 14 Gratt. (Va.) 422, 73 Am. Dec. 367, where the propriety of injunction was not questioned.

'State v. Bazille, 97 Minn. 11, 106 H. W. 93, 6 L. R. A. N. S. 732.

Sec. 44. Who May Attack Validity.

Only those can attack the validity of an inheritance tax who would be benefited by its invalidity. So grantees in a deed subject to the lowest rate of taxation have no valid cause of complaint as to the constitutionality of the transfer tax because other grantees are subjected to a higher rate. That objection, if tenable, could be taken only by the grantees taxed at the higher rate.1

The contention that the California statute of 1905, c. 314, is unconstitutional as discriminating between the citizens of the state and those of other states will not be considered where it does not appear by the pleadings to which class the appellant belongs.2

Where the devisee of real estate is an alien, and has received the value of the real estate in partition proceedings, he is estopped to deny liability for the succession tax on the ground that the devise to him as an alien was void.3

1 In re Keeney, 194 N. Y. 281, 286, 87 N. E. 428, affirming 128 N. Y. App. Div. 893.

2 In re Damon, 10 Cal. App. 542, 102 P. 684.

3 Scholey v. Rew, 90 U. S. (23 Wall.) 331, 23 L. R. A. 99.

§ 53. Revenue Legislation to Originate in House of Representatives.

Sec. 45. The State Constitutions.

While most states require equality and uniformity in taxation,1 inheritance taxes are specifically referred to in only five states.2 1As to equality and uniformity, see Chapter XI. For the clauses in the state constitutions bearing on inheritance taxes, see the second part of this book.

2 Alabama, Louisiana, Minnesota, New Hampshire, Oklahoma. See also the proposed constitutions of Arizona and Indiana. See In re Fox, 154 Mich. 5, 117 N. W. 558, 15 Detroit Leg. N. 674. See also Drew v. Tifft, 79 Minn. 175, 81 N. W. 839, 47 L. R. A. 525, 79 Am. St. Rep. 446.

Sec. 45a. Impairment of Contract.

No collateral inheritance tax has yet been held to impair any contract right under any circumstances. The subject was adverted to in the supreme court in a decision holding that where the law imposing a tax on deposits was in force before the deposit was made by a non-resident in the state of New York, it did not impair the obligation of the contract, if a tax otherwise lawful ever can be said to have that effect.1 The New York statute of 1885 did not create any contract right that a person dying while that statute was in force might dispose of his estate without any further tax except as then in existence. Therefore the statute of 1897 could tax powers of appointment which were not taxable under the statute of 1885.2

In an Iowa case the decedent before the passage of any inheritance law entered into an agreement for the disposition of certain

property on his death, which occurred after the law went into effect. The court considered the suggestion that as the contract was made before the passage of the collateral inheritance law this law cannot apply, for the reason that it impairs the obligations of a contract and deprives the collateral heirs of their property without due process of law. The court answers this suggestion showing that until the death of the devisee it was entirely unsettled as to who would get the property at the time of his death, as it depended on the survival of the collateral heirs. The time of possession and enjoyment was postponed until the death of the devisee and the estate of the original testator was still undistributed. It was therefore entirely competent for the legislature to impose a tax upon the right to receive in possession and enjoyment although the right was given by a contract.3

'Blackstone v. Miller, 188 U. S. 189, 23 S. Ct. 277, 47 L. Ed. 439, affirming 171 N. Y. 682, 69 N. Y. App. Div. 127, quoting Pinney v. Nelson, 183 U. S 144, 147.

'In re Vanderbilt, 163 N. Y. 597, 57 N. E. 1127, 50 N. Y. App. Div. 246 63 N. Y. Suppl. 1079.

Lacy v. State Treasurer, (Iowa, 1909,) 121 N. W. 179.

Sec. 46.

Constitutional Limitation in Rate.

The tax may be void as at a rate prohibited by the constitution. State v. Harvey, 90 Minn. 180, 95 N. W. 764.

Sec. 47. Justice to be Free.

Inheritance taxes in the form of heavy probate duties have been found invalid under constitutional provisions that justice must be obtained freely and without purchase.

State v. Gorman, 40 Minn. 232, 41 N. W. 948.

The Wisconsin statute of 1889, c. 176, purports to close the door of the county court against administrators and the estate unless they first advance and pay the amount exacted. This looks very much like purchasing the privilege of going into the county court for the settlement of the estate, but the court finds it unnecessary to determine that question. State v. Mann, 76 Wis. 469, 480, 45 N. W. 526, 46 N. W. 51.

Sec. 48. Poll Tax Prohibited.

An inheritance tax is not void under a constitution providing that "the levying of taxes by poll is grievous and oppressive and ought to be prohibited."

Tyson v. Stite, 28 Md. 577.