104 N.Y. 306, In re McPherson

Citation:104 N.Y. 306
Party Name:In the Matter of the Application to compel payment by the Executors and Legatees of and under the last Will and Testament of MARY MCPHERSON, deceased, of the tax imposed by Chapter 483, Laws of 1885.
Case Date:February 01, 1887
Court:New York Court of Appeals

Page 306

104 N.Y. 306

In the Matter of the Application to compel payment by the Executors and Legatees of and under the last Will and Testament of MARY MCPHERSON, deceased, of the tax imposed by Chapter 483, Laws of 1885.

New York Court of Appeal

February 1, 1887

Argued January 17, 1887.

Page 307


John F. Montignani and Robert G. Scherer for appellants. As a special or specific tax, imposed upon the passing of property, the act is invalid. (Gordon v. Cornes, 47 N.Y. 611; Wynehamer v. People, 3 Kern. 404; 1 Desty on Tax. 4, § 18, p. 53; People v. Comm. 76 N.Y. 71; Cooley on Const. Lim. [ [5th ed.] 613; Stuart v. Palmer, 74 N.Y. 189, 190; Pleuber v. State, 10 N.W. 485; People v. Fire Asso., 92 N.Y. 323; In re Mayor, etc., 11 Johns. 77; Sharp v. Speir, 4 Hill, 82.) The right of bequest or testamentary disposition is a purely natural and essential right, indispensable to the common ordinary right of private property, 'the guarantee to individuals of the fruits of their own labor and abstinence.' (Mill's Prin. of Pol. Econ., chap. 2, Property, 278, § 1; id. 281, § 4; Essays on Prop. & L. part 3, p. 78; Remsen v. Brinkerhoff, 26 Wend. 332; Windham v. Chetwynd, 1 Bur. 414; Stewart's Ex'r v. Lispenard, 26 Wend. 296; Lewis v. Jones, 50 Barb. 672.) The right of inheritance is a natural, absolute right, and as such not specially taxable. (1 T. D. Woolsey [Pol. Science], § 48.) Chapter 483, as imposing a special tax on the devolution of property, is void, and that it must be considered as a general tax. (2 Locke on Civ. Gov., 124, 134, 135.) The whole act is therefore unconstitutional. (People v. Sup'rs. of Westchester, 4 Barb. 64, 70; White v. White, 5 id. 484, 485; Taylor v. Porter, 4 Hill 144, 145; Sweet v. Hulbert, 51 Barb. 312; Clark v. City of Rochester, 13 How. Pr. 206; Colde v. Bruce,

Page 308

3 Dallas, 386; Wynehamer v. People, 3 Kern. 404; Rockwell v. Nearing, 35 N.Y. 302; Stewart v. Palmer, 74 id. 188.)The act is invalid as a general law, imposing, an arbitrary tax, not equal or uniform, and which unjustly discriminates between citizens. (Cooley on Const. Lim., 169, 170, 393, 479; Lexington v. McMillan's Heirs, 9 Dan. 513-516; Youngblood v. Sexton, 32 Mich. 406; People v. Supr's, 20 Barb. 81-88; S. C., 16 N.Y. 424, 439; People v. Com'rs, 76 id. 71; Stuart v. Palmer, 74 id. 190; Flatbush Lands, 60 id. 406, 407; U.S. Const. Am. 14; In re Van Antwerp, 56 N.Y. 265; Cooley on Tax'n [2d. ed.], 47; Hervill v. Buffalo, 37 N.Y. 270; People v. Mayor, etc., 4 id. 419.) The constitutional validity of the law is to be tested, not by what has been done under it, but by what may, under its authority be done. (Stuart v. Palmer, 74 N.Y. 188.) As to the purpose of a tax, the power of the legislature is limited and can be reviewed. (Weismer v. Village of Douglas, 64 N.Y. 97.) The method providing for assessing and collecting the tax may also be examined into, and if not found just, the law be declared void. (Stuart v. Palmer, 74 N.Y. 183; People v. Eq. T. Co., 96 id. 395-396.) The probable effect of a tax law may be considered by the courts, and if deemed arbitrary and oppressive on an individual, citizen or class of citizens, the law be pronounced invalid. (In re Flatbush, 60 N.Y. 407; Gordon v. Cornes, 47 id. 611, 612; People ex rel. M. F. I. Co v. Com'rs, 76 id. 71.) There are exempt from the legislative power of special taxation (1.) rights expressly protected by the Constitution; (2.) rights by necessary implication so protected; (3.) such natural rights as are reserved to the people themselves and not by the Constitution intrusted as subjects of legislation to the legislature. (Cooley's Const. Lim. 207 [175*]; Wilkinson v. Leland, 2 Pet. 627-657; Taylor v. Porter, 4 Hill, 144, 145; Calder v. Bruce, 3 Dall. 386.) Uniformity and equality are essential to a valid tax. (In re McMahon v. Palmer, 102 N.Y. 188, 189.) Considered as a tax on property the law is invalid as not providing for a legal apportionment. (Laws of 1885, chap. 483, §§ 6, 9, 23;

Page 309

Stuart v. Palmer, 74 N.Y. 183; People v. Eq. T. Co., 96 id. 396.) Chapter 483, Laws of 1885, is void as being a law which imposes a tax and does not distinctly state the object to which that tax is to be applied. (Const. N.Y. art. 3, § 20; Sun Mut. Ins. Co. v. Mayor, etc., 8 N.Y. 241; People v. Sup'rs of O., 27 Barb. 575; 17 N.Y. 235; Bl'k R. B'k. v. Sup'rs Jeff'n, 27 Barb. 583, n.; Const. of 1847, art. 7, § 3; 27 Barb. 584, n.; People v. Sup'rs Kings, 52 N.Y. 556, 557, 559; People v. Home Ins. Co., 92 id. 329; People v. F. Ins. Co. Phil., id. 327; Cooley's Const. Lim. 116; Weismer v. Village of Douglas, 64 N.Y. 98.) The law is unconstitutional in that it confers upon the surrogate powers and duties not authorized by, but contrary to, the Constitution. (Const. art. 6§ § 15, 16, 25, 27; Const. art. 14, § § 8, 12; Landers v. Stat. Isl. R. R. Co., 53 N.Y. 450; People v. Porter, 90 id. 71; People v. Gardner, 45 id. 812; People v. Green, 58 id. 303; Delany v. Brett, 51 id. 78; Wilkins v. Earl, 46 id. 358; People ex rel. Lent v. Carr, 100 id. 236, 242; Cooley Const. Lim. 177 [5th ed.], p. 211.)

Leonard G Hun and Eugene Burlingame for appellants. The constitutional validity of a law is to be tested, not by what has been done under it, but by what may, by its authority, be done. (Stuart v. Palmer, 74 N.Y. 183.) Where parts only of an act are found to be unconstitutional, but such parts are essential to the existence of the constitutional parts, or are so related to them as to make it evident that the legislature intended them to constitute one whole, so that if all could not be carried into effect no parts thereof would have been enacted by it, the whole act should be declared void. (Bishop on Stat. Cr. [2d ed.] § 34; Cooley on Const. Lim. [ 5th ed.] 213.) The act of 1885 (Chap. 483), fails to pre scribe with that certainty and precision which is essential to the validity of all laws imposing taxes, rules for apportioning determining and collecting the taxes to be imposed upon the various estates and interests specified therein. (Cooley on Tax'n.

Page 310

[ 2d ed.] 237, 243, 244; People v. Brooklyn, 4 N.Y. 419, 426, 427; State v. Com'rs, 73 Ala. 65, 70; Williams on Ex'rs. [6 Am. ed.], 1696.) Where a future estate or interest in the property of a decedent is given by his will to any person, not absolutely, but only in case he shall be living at a certain time, or at the expiration of a prior estate, or upon the happening of some other uncertain event, the occurrence or non-occurrence of which is dependent upon the will of another person, the estate or interest so acquired by him is not, prior to the happening of the event, upon the occurrence of which the vesting of his title to the estate or interest is dependent, 'property' having a 'market value; ' nor can the legislature impose upon it a tax to be collected from other property of such person not forming part of the decedent's estate, under a judgment to be entered against such person in proceedings instituted to recover the amount of this tax. (Weismer v. Village of Douglas, 64 N.Y. 91; Bertholf v. O'Reilly, 74 id. 509-515; In re Deansville Cemet'y, 66 id. 569-572; In re Townsend, 39 id. 71-174; In re Jacobs, 98 id. 110, 111; Duell v. Alvord, 41 Hun, 196; Potter v. Com'rs, 10 Exch. 146-155; Linimer Asphalte v. Com'rs, 7 id 211; Hopkins v. Folger, 60 Me. 266, 269; Sedg. on Dam. [ 7th ed.] 134, note a.; Suth. on Dam. 126; 3 id. 154, 155; Mayne on Dam. [ Wood's ed.] 87; Hoey v. Telton, 11 C. B. [ N. S.] 142; Taylor v. Bradley, 4 Abb. Ct. App. Dec., 366; Wakemay v. W. & W. Mf'g Co., 101 N.Y. 205.) The rule established by the act for determining the value for the purposes of taxation of future and contingent estates, whether arising by way of remainder, limitation or appointment, is unjust, oppressive and unconstitutional. (Cooley on Const. Lim. [ 5th ed.] 612, 613, 622; Cooley on Tax. [ 2d ed.] 237, 352, 493-513; People v. Salem, 20 Mich. 452-472; State ex rel. v. Rondout, 36 N. J. L. 66-70; Lexington v. McQuillin's Heirs, 9 Dana [Ky.], 513, 517; Woodbridge v. Detroit, 8 Mich. 274, 301; Stuart v. Palmer, 74 N.Y. 188, 189, 190; People v. Dry Dock Co., 11 Abb. [ N. C.] 40; S. C., 92 N.Y. 487; Gordon v. Cornes, 47 N.Y. 608, 612; People v. Eq. T. Co., 96 id. 387;

Page 311

In re Jacobs, 98 id. 98, 111, 256, 257; Portland Bank v. Apthorp, 12 Mass. 252; Com'rs. v. People's Sav. Bk., 5 Allen, 428, 431; Com'rs. v. Ham. Mf'g. Co., 12 id. 298, 301; Bank v. Hines, 3 O. St. 1, 15; Att'y Gen. v. Winn. Lake Co., 11 Wis. 35.) The legislature intended by this act to impose a tax on 'property, ' the amount of which tax is to be determined by the 'clear market value' of such property. (Eyre v. Jacob, 14 Gratt. 422, 428, 429, 436; Tyson v. State, 28 Md. 577; Strode v. Com'rs, 52 Penn. 183; U.S. v. Allen, 9 Ben. 154; People v. Eq. T. Co., 96 N.Y. 387; Cooley on Tax. [ 2d ed.] 430.) The act violates the provisions of section 6 of article 1 of the Constitution, providing that no man shall be deprived of life, liberty or property without due process of law, in that it does not require that notice shall be given to the persons upon whom the taxes are to be imposed of the appraisement of their property, or the fixing and determining of the value of their estates or interests therein, or afford them a reasonable opportunity to be heard. (Cooley on Const. Lim. [ 5th ed.] 496, note 2; Cooley on Tax. [ 2d ed.] 51, 361, 366; Stuart v. Palmer, 74 N.Y. 183, 188; Ireland v. Rochester, 51 Barb. 414, 430, 431; Blazier v. Miller, 10 Hun, 437; Railroad Tax Case v. Sawyer, 8 Sawyer, 238; Davidson v. N. Orleans, 96 U.S. 97; Hagar...

To continue reading