Hagerty, Judge, v. The State ex rel.
Taxation — Collateral inheritance tax — Validity of act of April SO, 1894 — Constitutional law.
1. The act of April 20, 1894 (Ohio Laws, 91, p. 169), amending “An act imposing a collateral inheritance tax,” is not repugnant to any provision of the constitution, because of- its discriminations among collateral kindred,
2. The property ‘which shall pass by sale”' within the meaning of the act is such only as passes in transactions which are in fact gifts, though m form saies, and the act does not restrict the right to dispose of property by sale for a valuably consideration, which the parties, in good faith, deem adequate.
(Decided January 26, 1897.)
Error to the Circuit Court of Franklin county.
The prosecuting attorney filed a petition in the circuit court for a peremtory writ of mandamus, commanding the probate judge to appoint three disinterested persons to view and appraise the personal and real property left by Elizabeth *614Noble, deceased, for the purpose of assessing thereon the tax provided for by the act entitled “An act imposing a collateral inheritance tax,” passed January 20, 1893, as amended April 20, 1894, said judge refusing to make such appointment because he believed said acts to be unconstitutional and void. A demurrer to the petition . was overruled, and peremptory writ allowed as prayed for.
A reversal of that judgment is sought here.
Ha/rrison, Olds & Henderson, for plaintiff in error.
The tax upon successious is defended upon the broad ground that the state may appropriate to public uses the estates of decedents. Does a power so sweeping exist in this state? The question is, whether, under our constitution, the general assembly may at any moment declare the state to be the universal successor of property upon the death of the present holders, and that thereupon, within the period of a generation, private ownership shall cease.
Is not the right of private property as opposed to the power of the state to nationalize all property, secure by these provisions? Constitution Art..l, section I; Art. I, section 19.
Blackstone draws a distinction between the natural and the civil right of property, holding’ that the natural right arising from occupancy or possession ends with death; and that right to control and dispose of property after death originates solely in political establishments. 2 Blackstone’s Com., 11, 12, 13, Christian’s Ed.; Strode v. Commonwealth, 52 Pa. St., 181; Dos Passos on Collateral Successions, Chap. 1, section 2; Lee v. Rail*615road Co., L. R., 6 Com. Pl., 576; 1 Hare’s Amer. Const. Law, 167; 1 Blackstone, 160.
There are necessarily and equally involved in the idea of an absolute interest in property the right’ of inheritance and the right of alienation.
The right of inheritance, whatever its origin, is as old as the common law itself. 2 Blackstone’s Com., 11; Maine’s Ancient Law, 183, 190, 259; Genesis ii., 7, xv., 3, 4; 2 Kent’s Com., 320, 327.
A man cannot attach to a grant or transfer of property, otherwise absolute, the condition that it shall not be alienated, such condition being repugnant to the nature of the estate granted, contrary to public policy, and void. Anderson v. Gary, 36 Ohio St., 506.
If the act in question is constitutional, then the constitution secures to the people the right of acquiring, possessing and protecting only a life estate in property and violates the right to alien-: ate during the lifetime of the owner, the estate in fee in remainder. It is therefore, unconstitutional and void.
It is the general doctrine that when a deed, absolute on its face, is delivered to a third party, to be by him delivered to the grantee after the death of the grantor, the delivery is absolute; the grantor retains no control or dominion over the deed in the hands of the depositary; the effect of the conveyance is to vest the estate in the grantee, subject to a life estate in the grantor; the depositary becomes a trustee of the deed for the grantee ; and the delivery of the deed by him, in pursuance of the grantor’s instruction, is to all intents and purposes, as valid as if made by the grantor during his life. Crooks v. Crooks, 34 Ohio St., 610; Ball v. Foreman, 37 Ohio St., 132; Williams v. Schatz, *61642 Ohio St., 47, 51; Wallace v. Harris, 32 Mich., 380; Alsop v. Eckles, 81 Ill., 424; Tooley v. Dibble, 2 Hill, 641; Geisinger’s Est., 11 Pa. C. C. R., 168; Bury v. Young et al., 3 Pac. Rep., 338; Sneathen v. Sneathen, 104 Mo., 201; Duer v. James, 42 Md., 492; Bovee v. Hinde, 135 Ill., 137; 25 Minn., 520; Johnson v. Hines, 31 Ga., 720; Owen v. Williams, 114 Ind., 1791; Shirley v. Ayers, 14 Ohio, 307; Price v. R. R. Co., 34 Ill., 13.
The validity of ah act which makes such discriminations as are made by the act in question, involves the question of the power of the legislature to make such discriminations when prohibited from so . doing by the second section of the bill of rights; and the question is, therefore, one for final determination by the courts. State v. Ferris, 53 Ohio St., 314.
A collateral succession tax, exempting direct succession, has been pronounced unconstitutional. Curry v. Spencer, 61 N. H., 624; Knowlton v. Supervisors of Brock Co., 9 Wis., 410; Portland Bank v. Apthorp, 12 Mass., 252; State v. Gorman, 40 Minn., 232; Mr. Cooley on Taxation, 128; 1 Hamilton Works, Ed. 1885, 270.
Invidious discrimination is not classification.
That the exemption and supposed classification made in the act under examination is condemned by the Supreme Court, is proved by the principles laid down in the following cases: Costelo v. Wyoming, 49 Ohio St., 202; Bronson v. Oberlin, 41 Ohio St., 481; Commissioners v. Rosch eBros., 50 Ohio St., 103; City of Fenton v. State ex rel. 52 Ohio St., 59.
The rule prescribed by section'2 of Art. XII, of the constitution, by implication furnishes the governing principle as to equality and uniformity *617of taxation. City of Zanesville v. Auditor, 5 Ohio St., 592.
Irrespective of constitutional limitation, taxes must be uniform or equal on .the same class of property or privileges. Loan Assoc. v. Topeka, 20 Wall., 655; Parkersburg v. Brown, 106 U. S., 487; Cole v. Le Orange, 113 U. S., 1.
Consequently, it is submitted, the grant in article I, section 1, of the legislative authority of this state to the general assembly, including the power to tax, contains the implied limitation that all tax laws should apply equally, impartially, and uniformly to all similarly situated.
The inherent and fundamental nature and character of a tax is a contribution to the support of the government, levied upon the principle of equal and uniform apportionment among the 'persons taxed. Any other exaction does not come within the legal definition of a tax. Cooley’s Const. Lim., 6th ed., 598, 607, 608, 615; Dillon on Municipal Corp., section 736; Desty on Taxation, section 10; Cooly on Taxation, 2d ed., p. 54; People v. Salem, 20 Mich., 452; Albany Bank v. Maher, 9 Fed. Rep., 884.
It' has been said that no comprehensive statement of what constitutes a valid classification is to be found in any one reported case, though they all agree that it must not be arbitrary. But an effort has been made to embody such statement in five rules, all of which are supported by judicial decisions, though some authorities rely more exclusively upon one ground, and others upon' another. These rules are as follows:
1. All classification must be based upon substantial distinctions, which make one class really different from another. •
*6182. The classification adopted in any law must be germane to the purpose of the law.
3. Classification must not be based upon existing circumstances only, or those of limited duration, except where the object of the law is itself a temporary one.
4. To whatever class a law may apply, it must apply equally to each member thereof.
5. If the classification be valid, the number of members in a class is wholly immaterial. State v. Hammer, 42 N. J. L., 436; Commissioners of Hamilton Co. v. Rosche Bros., 50 Ohio St., 103; State v. Cal. Min. Co., 15 Nev., 234; State v. Judges, 21 Ohio St., 1; State v. Covington, 29 Ohio St., 102; McGill v. State, 34 Ohio St., 228; State v. Shearer, 47 Ohio St., 275; Brooks v. Hyde, 37 Cal., 366; McCormick v. Busch, 15 Iowa, 127; Randolph v. Wood, 49 N. J. L., 85; Dundee Mortgage Co. v. School District, 10 Sawy., 52; People Cent. Pac. Ry. Co., 83 Cal., 393.
All authorities agree that the class to which the general laws' are applicable must be real and substantial, and the following description of a general law as contra-distinguished from a special or local law, has been deduced from the authorities:
1. ' A g’eneral law is one which applies to and operates uniformly upon all members of any class of persons, .places or things, requiring legislation peculiar to itself'in the matter covered by the law.
2. A special law is one which relates either to particular persons, places or things, or to persons, places or thing’s which, though not particularized, are separated, by any method of selection, from the whole class to which the law might, but for such limitation, be applicable.
*6193. A local law is one whose operation is confined within territorial limits other than those of the whole state or any properly constituted class of localities therein.
It does not make an act the less local or special that its operation is general as far as it goes, nor because it applies to many persons or things. If the persons or things be regarded by the law as individuals, be they few or many, this stamps it as special. Topeka v. Gillett, 32 Kan., 431; Miller v. People, 100 Mo., 439; Nichols v. Walter, 37 Minn., 264; Home Ins. Co. v. People of New York State, 134 U. S., 594.
Uniformity in taxation requires uniformity in the mode of assessment, as well as in the rate of percentage charged. County of Santa Clara v. Southern Pac. R. Co., 18 Fed. Rep., 385; 13 Fed. Rep., 722; Northern Pac. R. Co. v. Walker, 47 Fed. Rep., 681; Strode v. Com., 52 Pa. S., 181; Mixter’s Estate, 10 Pa. Co. Ct. Rep., 409.
But, if it be held that the distinction may be made between collateral kindred on the one hand, and kindred in the direct line on the other, in reference to the assessment of such a tax, by exempting the kindred in the direct line, upon the ground that such a distinction has a sanction in reason, on the theory that the moral claim of collaterals is less than that of kindred in the direct line, and the privilege therefore greater, as held, in Minot v. Winthrop, 162 Mass., 116, the exemption or discrimination ceases when the reason of the distinction ceases; and, therefore, a succession tax upon collateral kindred must include all collateral kindred. If any of such kindred can be exémpted, then all of them except those of a single particular degree of relationship may be *620exempted. Exemption of persons of a class taxed, produces inequality. Cooley on Taxation, 128.
It is peculiarly a province of the court to determine that such unreasonable exemptions cannot stand. Ry. Co. v. Minnesota, 134 U. S., 418; Reagan v. Trust Co.. 154 U. S., 362.
Under this constitutional provision, a law which applies to an individual, or to a number of individuals selected out of a class to which they belong, is a special law. State v. California Min. Co.. 15 Nev.. 234; Brooks v. Hyde. 37 Cal., 366; People v. Judges. 17 Cal., 547; Ewing v. Hoblitzell, 85 Mo., 64; Wheeler v. Philadelphia, 777 Pa., 338; Phillips v. Railway Co., 86 Mo., 540; McAunich v. Railroad Co.. 20 Iowa, 338; State v. Mitchell, 31 Ohio St., 592; State v. Wilcox, 45 Mo., 458.
If the exemptions are invalid, the whole act must fail. Virginia Coupon Cases, 114 U. S., 270; Baldwin v. Franks. 120 U. S., 678; California v. Pacific R. R. Co., 127 U. S., 1; Spraigue v. Thompson, 118 U. S., 90: Livingstone v. Maducah, 80 Ky., 656: St. Louis v. Speigel, 75 Mo., 145; In re Washington Ave., 69 Pa. St., 352; Agens v. The Mayor, 37 N. J. L., 415; Bank v. Hines, 3 Ohio St., 1; Veazie Bank v. Fenno, 8 Wall., 533; Ward v. Maryland, 12 Wall., 418: United States v. Singer, 15 Wall., 111; Township v. Talcott, 19 Wall., 666.
Moreover, the act authorizes a tax to be collected on the estate of a decedent situated in several counties, for the use and benefit of only the county in which the estate is probated. This question was not decided in the Ferris case. The burden of a tax must be made to rest upon the state at large, or upon any particular district of the state, according as the purpose for which it is levied is of general concern to the whole state, or, on the *621other hand, pertains only to the particular district. Cooley on Taxation, 105. It is therefore, a general tax for state purposes, and not at all a local tax for local objects. State ex rel. v. Auditor, 15 Ohio St., 482; Revised Statutes, sections, 236, 2820, 3951, 10116, 181a, 2834, 2822, 2823, 2824, 2826, 2827.
Joseph H. Dyer., Prosecuting Attorney and Henry A. Williams, First Assistant Pros. Atty., for defendant in'error.
First — By a comparison of the language used in the law passed taxing direct inheritances in this state (91 O. L., 166), and the law in question in this case, taxing collateral inheritances, it will be found that the exact language is used in both, with the exception that in the law under discussion, the features are absent, which were declared as being obnoxious to the constitutional provisions by this court in the case of State ex rel v. Ferris (53 O. S., 314).
This court in the Ferris ease reached the conclusion that the direct inheritance act was intended by the legislature to be a tax upon the right or privilege to receive property and not a tax upon the property itself, and as a result of that conclusion held to be constitutional all the provisions of the law sought to be assailed upon the ground that it was a tax on property..
Second — It was next urged that this law was unconstitutional for the reason that it. was an attempt to impose a tax upon the right or privilege to receive property, for general revenue purposes • only, and that therefore it was in conflict with section 2 of article 12 of the constitution.
*622It was urged in that case, as in this, that the law was unconstitutional, for the reason that it was in conflict with section 26 of article 2 of the constitution. The court does not discuss this question at length, .but simply cites the case of The State v. Nelson (52 O. S., p. 88): and this, for the reason that through a long line of decisions, whenever this section of the constitution has been questioned, this court has uniformly held that a law was of a general nature when the subject matter of the law was general jn application, and that its operation was uniform when all persons in all parts of the state affected by it, were not exempt from its operation. This is substantially the definition given in the case of Heck v. The State, 44 Ohio St., 536; Adler v. Whitbeck, 44 Ohio St., 539; Driggs v. State, 52 Ohio St., 37.
We thereto re conclude that this feature of the case is perfectly secure under the former decisions of this court from the objection made as to its being unconstitutional on account of being in conflict with section 26 of article 2.
Third — The only remaining question to consider is the one upon which this court declared the direct inheritance tax law unconstitutional, and that was for the reason that section 1 of that act was in conflict with section 2 of the bill of rights which provides that “All political power is inherent in the people. Government is instituted for their equal protection and benefit.” (53 Ohio St., 314, 336.) The graduated scale of assessing taxes and also the exemption of the first twenty thousand dollars was held to be not for the equal protection and benefit of all the people upon whom this law operated, and therefore the law was not upheld. These two particular features are absent *623from the act under discussion, and in place of the graduated scale, the legislature substituted a tax of five per centum of the value of said estate, and substituted in place of the exemption of the first twenty thousand dollars, the exemption of the first two hundred dollars, which is the constitutional exemption allowed to all persons in the state. (Article 12, section 2.) It is only the property that passes to such collateral heirs, or to a stranger that is taxed, that this property, is to be divided only after administration on the estate. State v. Hamlin, Exr., 86 Me., 496; Scholey v. Rew, 23 Wall., 331; State v. Telegraph Co.; Brewer Brick Co. v. Brewer, 62 Me., 74; 2 Blackstone, Com., 10, 11, 12, 13, 515; Edwards v. Freeman, 2 P. Wms., 442; Eyre v. Jacob„ Sheriff, 14 Grat., 422; Matter of McPherson, 104 N. Y., 306.
Taxes upon legacies and inheritances have been approved generally by writers upon political economy and systems of taxation, and no tax can oe less burdensome and interfere less with the productive and industrial agences of society. (Williams’ Case, 3 Bland’s Ch’y R., 186, 259. Carpenter v. Comm. of Penn., 17 How., 456; Clapp v. Sampson, 94 U. S., 589; Wright v. Blakeslee, 101 Id., 174; Mason v. Sargent, 104 Id., 689; In re Short’s Estate, 16 Pa., 63; Stinger v. Comm., 26 Id., 422; Comm. v. Freedley, 21 Id., 33; Strode v. Comm., 52 Id., 181; Miller v. Comm., 27 Gratt., 110; Tyson v. State, 8 Md., 578; State v. Dorsey, 6 Gill., 388; Williams’ Case, Bland’s Ch. R., 186.
The position for which we contend is also upheld in Minot v. Winthrop, 162 Mass., 113; Tyson v. State, 28 Md., 577; State v. Dalrymple and Lemmon, Administrators, 70 Md., 294; Pullen *624v. Commissioners of Wayne County, 66 N. C., 361.
The only court of last resort wherein legislation of -this kind has not been upheld, so far as we have been able to find, is in the case of Curry v. Spencer, 61 N. H., 624.
The decision of the court in that case rests entireLy upon a strained construction of the constitutional provisions of New Hampshire with respect to taxation, and of article 12 of their bill of rights, and upon the authority of the case of State v. Express Cos., (61 N. H., 219.)
Fourth — It is urged by counsel in argument that this legislation is invalid because the tax which it levies is for a general purpose, but the act provides that 25 per centum of the tax collected under it shall be placed to . the credit of the county expense fund of the county in which the tax is levied and 75 per centum thereof shall be paid into the state treasury to the credit of the general revenue fund. This contention, we think, is settled by the decision 6f this court in the Ferris case.