38 F. 184 (S.D.N.Y. 1889), Wallace v. Myers

Citation:38 F. 184
Party Name:WALLACE et al. v. MYERS, Comptroller.
Case Date:March 28, 1889
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 184

38 F. 184 (S.D.N.Y. 1889)

WALLACE et al.


MYERS, Comptroller.

United States Circuit Court, S.D. New York.

March 28, 1889

Cornelius Fiske, for complainants.

Charles F. Tabor, Atty. Gen., for defendant.


This is a suit to restrain the defendant, as comptroller of the city of New York, from collecting certain taxes assessed under the provisions of the act of the legislature of the state of New York of 1885, entitled 'An act to tax gifts, legacies, and collateral inheritances in certain cases,' as amended by chapter 713 of the Laws of 1887. These laws impose a tax of 5 per centum upon the value of the property passing to any person not within certain degrees of consanguinity to the decedent by will or the intestate laws of the state, from any person who may die seised or possessed of the same while being a resident of the state, or which is within the state at the time of his death. The bill of complaint shows that in the present case there was included in the property of the decedent, upon which the tax was assessed, $28,000 of

Page 185

United States government bonds. The defendant has demurred to the bill. The contention for the complainants is that the legislation is unconstitutional, and, if valid, that as to the government bonds the tax is void. The decision in Re McPherson, 104 N.Y. 306, 10 N.E. 685, disposes of the objections to the legislation which rests upon the ground that it is in conflict with the constitution of the state; and the cases of Mager v. Grima, 8 How. 490, and Carpenter v. Pennsylvania, 17 How. 456, meet most of those which assert that it is in contravention of the constitution of the United States. Inasmuch as the law operates alike on all property and persons similarly situated, and the assessment is made by a judicial officer after notice and opportunity to be heard by the persons interested, it does not conflict with the provisions of the fourteenth amendment of the constitution of the United States. Railroad Co. v. Richmond, 96 U.S. 521; Barbier v. Connolly, 113 U.S. 27, 5 S.Ct. 357; Wurts v. Hoagland, 114 U.S. 606, 5 S.Ct. 1086; Railroad Tax Cases, 115 U.S. 321, 6 S.Ct. 57.

The serious question in the case is whether the tax is void to the extent that the assessment was based upon the value of the United States bonds which were included in the property of the decedent. This question is fairly a debatable one, but seems...

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