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as to the classes upon which they operate must be observed. Subject to this restriction the legislature may lay taxes upon the right of one class of persons and corporations to succeed to property of deceased persons, and exempt the right of other classes of persons or corporations from such taxation."2

1 Nunnemacher v. State, 129 Wis. 190, 221, 108 N. W. 627, 9 L. R. A. N. S. 121. The constitutionality of inheritance taxes 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." Magoun v. Illinois Trust & Savings Bank, 170 U. S. 283, 287, 18 Sup. Ct. 594, 42 L. Ed. 1037. "Equality" as applied to the progressive tax,

see post, s. 64.

2 Per Boggs, J., In re Speed, 216 Ill. 23, 27, 74 N. E. 809, 108 Am. St. Rep. 189, affirmed 203 U. S. 553, 27 S. Ct. 171, 51 L. Ed. 314

Sec. 58. Proportional Tax Required.

The requirement of proportional taxation is not intended to apply to inheritance taxes.

Tyson v. State, 28 Md. 577. Eyre v. Jacob, 14 Gratt. (Va.) 422, 433, 73 Am. Dec. 357.

A requirement in the Maryland constitution that every person shall contribute proportionally for the support of the government did not forbid an inheritance tax. While this article provided for a uniform mode of taxation on property it was not the purpose of the friends of the constitution to prohibit any other species of taxation but to leave the legislature power to impose such other taxes as the necessities of the government might require. Tyson v. State, 28 Md. 577.

The Vermont constitution provides that every member of society is bound to contribute "his proportion" towards the expense of the protection which the state affords him, and it is claimed that this excludes all methods of taxation that are not uniform, equal and proportionate. And it was claimed that the collateral inheritance tax lacked uniformity. The court holds, however, that the question is what constitutes equality of apportionment within the meaning of this provision, and in doing this the basis of the act in question must be considered, that the statute is not a tax upon property but a tax upon the transmission of property, which is not a natural right, but a privilege accorded by the state. And the court decides that the constitutional requirement of proportional contributions was not intended to restrict the state to methods of taxation that operate equally upon all its inhabitants, regardless of the variety and measure of the advantages derived from its protection and regulation. A member of the body politic has from the state not only the protection of his property, but the privilege of taking property by descent and by will. It seems

clear that privileges of this character as well as property are to be considered in determining the just proportion of the individual. In re Hickok, 78 Vt. 259, 62 A. 724.

The opposite view was expressed in a discredited New Hampshire case. "Immunity from disproportional taxation being expressly reserved in our bill of rights, and the power of proportional taxation only being granted the legislature by the constitution, we are unaware of any ground upon which the statute under consideration [Gen. Laws, c. 64] can be upheld; for if it is to be regarded 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. See State v. United States & Can. Express Co., 60 N. H. 219." Per Blodgett, J., in Curry v. Spencer, 61 N. H. 624, 631, 60 Am. St. Rep. 337. Curry v. Spencer, 61 N. H. 624, is explained in Minot v. Winthrop, 162 Mass. 113, 118, as going on the ground that the tax in that case is not proportional and so cannot be supported as a tax on property under the constitution of that state which authorizes only taxes and assessments on polls and property." In Missouri the act of 1895 was found void as a property tax not levied in proportion to the value of the property as the constitution required. State v. Switzler, 143 Mo. 287, 330, 45 S. W. 245, 40 L. R. A. 280, 65 Am. St. Rep. 653.

Sec. 59. Geographical Uniformity.

Constitutional requirements of uniformity mean merely that general tax laws shall be in full force throughout the taxing district.

State v. Ferris, 53 Ohio St. 314, 41 N. E. 579, 30 L. R. A. 218. Knowlton v. Moore, 178 U. S. 41, 108, 20 S. Ct. 747, 44 L. Ed. 969. (U. S. Const., art. 1, s. 8.)

"An excise tax which operates uniformly throughout the state and bears equally upon all persons standing in the same category does not deprive any of equal protection of the laws." Per Spear, C. J., in State v. Guilbert, 70 Ohio St. 229, 255, 71 N. E. 636.

The Wisconsin tax was declared unconstitutional primarily because it applied only to one county, in State v. Mann, 76 Wis. 469, 45 N. W. 526.

"I do not perceive wherein the inequality and want of uniformity complained of can be said to consist. . . . The tax is equal and uniform throughout the state as far as it is susceptible of the application of the rule. It is the same everywhere upon the succession to estates of equal value of whatever subjects they may consist." Per Lee, J., in Eyre v. Jacob, 1858, 14 Gratt. 422.

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Exempting domestic and not foreign corporations from tax is a valid classification.

An exemption of foreign charitable corporations is not obnoxious to the provisions of the fourteenth amendment to the federal constitution, s. 1, “that no state shall deny to any person within its jurisdiction the equal protection of the laws," as it is settled that a corporation is not a citizen within the meaning of this clause of the federal constitution. Furthermore, the legislature has the right in laying taxes to classify corporations as has been done in this state in recent years, and can classify resident corporations in one class and foreign corporations in another. Humphreys v. State, 70 Ohio St. 67, 87, 101 Am. St. 888, 70 N. E. 907, 65 L. R. A. 776, affirming 13 Low. D. 168, 1 C. C. N. S. 1, 14 Cir. D. 238.

The Illinois inheritance statute of 1895 as amended in 1901 exempted from the inheritance tax certain charitable corporations organized under the law of Illinois and did not exempt similar corporations organized under the laws of other states. The court holds that this distinction is not contrary to the fourteenth amendment to the federal constitution; that if a state exempt property bequeathed for charitable and educational purposes from taxation it is not unreasonable or arbitrary to require the charity to be exercised or education to be bestowed within her borders and for her people whether exercised through persons or corporations. Board of Education v. Illinois, 203 U. S. 553, 563, 27 S. Ct. 171, 51 L. Ed. 314.

To the effect that exemptions apply only to domestic charitable corporations, see post, s. 257.

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State statutes discriminating against alien beneficiaries have been often held void as in conflict with particular United States treaties,1 and they are also ineffective so far as they attempt to extend to residents of the state privileges not accorded to residents of other states, but otherwise they are valid. A lucid explanation of the doctrine was given by our supreme court in an early case upholding the validity of the Louisiana statute, which levied a tax

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on legacies when the legatee was neither a citizen of the United States, nor domiciled in the state, the court saying: —

"Now the law in question is nothing more than an exercise of the power which every state and sovereignty possesses, of regulating the manner and term upon which property real or personal within its dominion may be transmitted by last will and testament, or by inheritance; and of prescribing who shall and who shall not be capable of taking it. Every state or nation may unquestionably refuse to allow an alien to take either real or personal property, situated within its limits, either as heir or legatee, and may, if it thinks proper, direct that property so descending or bequeathed shall belong to the state. In many of the states of this union at this day, real property devised to an alien is liable to escheat. And if a state may deny the privilege altogether, it follows that, when it grants it, it may annex to the grant any conditions which it supposes to be required by its interests or policy. This has been done by Louisiana. The right to take is given to the alien, subject to a deduction of ten per cent for the use of the state.

"In some of the states laws have been passed at different times imposing a tax, similar to the one now in question, upon its own citizens as well as foreigners; and the constitutionality of these laws has never been questioned. And if a state may impose it upon its own citizens, it will hardly be contended that aliens are entitled to exemption; and that their property in our own country is not liable to the same burdens that may lawfully be imposed upon that of our own citizens..

"We can see no objection to such a tax, whether imposed on citizens and aliens alike, or upon the latter exclusively. It certainly has no concern with commerce, or with imports or exports. It has been suggested, indeed, in the argument, that as the legatee resided abroad, it would be necessary to transmit to her the proceeds of the portion of the estate to which she was entitled, and that the law was therefore a tax on exports. But if that argument was sound, no property would be liable to be taxed in a state, when the owner intended to convert it into money and send it abroad."4 The tax on an estate of one who died before a treaty became effective cannot be affected by it."

1Adams v. Akerlund, 168 Ill. 632, 48 N. E. 454. (Swedish treaty of 1783.) Succession of Dufour, 10 La. Ann. 391. (French treaty of 1853.) Succession of Crusius, 19 La. Ann. 369. (Bavarian treaty of 1845.) Succession of Rixner, 48 La. Ann. 552, 19 S. 597, 32 L. R. A. 177. (Italian treaty of 1871.) Succes

(French treaty of 1853.) (French treaty of 1853.) (Treaty of 1827 with Norway and

sion of Rabasse, 49 La. Ann. 1405, 22 So. 767, 772.
State v. Circe, Man. Unreported Cases (La.) 412.
In re Stixrud, 58 Wash. 339, 109 P. 343, 348.
Sweden.) See post, s. 305.

"Goods and effects" include real estate. The treaty between Norway and Sweden and the United States of 1827, uses the words "goods and effects" to designate the property the treaty is applicable to, but the court holds that these words include real estate, following Adams v. Akerlund, 168 Ill. 632, 48 N. E. 454, and University v. Miller, 14 N. C. 207. In re Stixrud, 58 Wash. 339, 109 P. 343, 349.

Heirs. The treaty of 1827, between the United States and Norway and Sweden, provided for the succession by "heirs," and the court notes that this word has a technical common law meaning restricting it to those who take by inheritance only; while by the civil law it applies to all persons who are called to the succession whether by act of the party or by operation of law. As the word is used in this treaty by countries in one of which the common law prevails and the other of which the civil law prevails, there does not appear to be any reason for here attributing to it the technical meaning of either of these systems of law in preference to the other, and hence the word "heirs" includes those who receive by will as well as those who receive by operation of law. In re Stixrud, 58 Wash. 339, 109 P. 343, 349.

The New York statute of 1887 is not a "detraction tax," but a succession tax, and is therefore not included within the terms of the treaty of 1844 between the Kingdom of Wurtemberg and the United States. In re Stroebel, 5 N. Y. App. Div. 621, 39 N. Y. Suppl. 169.

2 In re Stanford's Estate (Cal. 1898), 54 Pac. 259, reversed on another point in 126 Cal. 112, 58 P. 462, 45 L. R. A. 788. State v. Hamlin, 86 Me. 495, 507, 30 A. 76, 41 Am. St. Rep. 569, 25 L. R. A. 632 semble.

The California statute as amended by the statute of 1897 exempting nephews and nieces when resident of the state is not void under the United States constitution. On the contrary the effect of the United States constitution, section 2, article 4, is to extend the exemption there given to citizens of other states, as the effect of the federal constitution is to measure the exemption by the exemption given to citizens of California. In re Johnson, 139 Cal. 532, 537. The court notes the case of In re Mahoney, 133 Cal. 180, 65 P. 389, 85 Am. St. Rep. 155, and says that the question was raised there by aliens and that therefore no constitutional question was involved and the decision in the Mahoney case was a dictum which the court refuses to follow.

State v. Poydras, 9 La. Ann. 165, 167. Succession of Schaffer, 13 La. Ann. 113. State v. Martin, 2 La. Ann. 667. Succession of George, 4 La. Ann. 223. Succession of Pehan, 5 La. Ann. 304. See In re Strixrud, 58 Wash. 339, 109 P. 343, where the question is not decided. See Iowa St. 1911, post, p. 458 et seq. The Louisiana statute provided that every person not domiciled in the state and not being a citizen of the United States shall pay an inheritance tax of ten per cent. A treaty between the United States and the King of Wurtemberg, dated April 10, 1844, provided that citizens of each country should have a right to take as heirs, paying such duties only as the inhabitants of the country where the property lies. The court holds that this statute does not make any discrimination between citizens of the state and aliens in the same circumstances

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