Minot v. Winthrop

• Decision Date: 17 October 1894
• Parties: MINOT et al. WILLIAMS WEST v. WINTHROP et al. WILLIAMS WEST v. BOWDITCH. WILLIAMS WEST v. PHILLIPS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

162 Mass. 113

38 N.E. 512

MINOT et al. WILLIAMS WEST v. WINTHROP et al. WILLIAMS WEST v. BOWDITCH. WILLIAMS WEST v. PHILLIPS et al.

Supreme Judicial Court of Massachusetts, Suffolk.

October 17, 1894

COUNSEL

W.G. Russell and J. Fox, for appellants.

H.M Knowlton, Atty. Gen., and G.C. Travis, Asst. Atty. Gen., for the Commonwealth.

OPINION

FIELD C.J.

All these cases involve the constitutionality of St.1891, c. 425. The objections urged against this statute are that the right of succession to property on the death of the owner is a necessary incident of property which is protected by the constitution of Massachusetts; that a tax upon such succession is, in effect, a tax upon the property, and is subject to the limitations put upon a tax upon estates by the constitution; that if such a tax is not a tax upon property but an excise upon the right of succession, this right cannot be considered as "goods, wares, merchandise and commodities," within the meaning of these words in the constitution (part 2, c. 1, § 1, art. 4); and that even if the right can be considered as a commodity, the tax imposed by the statute is unreasonable, because the statute is unequal in its operation, and makes arbitrary distinctions between those persons and estates that are and those that are not subject to its provisions. The attorney general concedes that the tax imposed by the statute is invalid if it is a tax on property or estates. He contends that the tax is an excise; that the succession to property on the death of the owner is a privilege created by law and a commodity within the meaning of the constitution; and that as an excise, the tax is reasonable. St.1891, c. 425, purports to be a statute imposing a tax, and we think it apparent that the legislature, in passing it, intended to act under the authority granted to the general court by the constitution to impose and levy taxes. This authority is found in the constitution (part 2, c. 1, § 1, art. 4), and is full power and authority "to impose and levy proportional and reasonable assessments, rates, and taxes, upon all the inhabitants of, and persons resident and estates lying within, the said commonwealth; and also to impose and levy reasonable duties and excises upon any produce, goods, wares, merchandise, and commodities, whatsoever, brought into, produced, manufactured or being within the same; to be issued and disposed of by warrant, under the hand of the governor of this commonwealth for the time being, with the advice and consent of the council, for the public service, in the necessary defence and support of the government of the said commonwealth, and the protection and preservation of the subjects thereof, according to such acts as are or shall be in force within the same." The constitution also provides as follows: "And while the public charges of government, or any part thereof, shall be assessed on polls and estates, in the manner that has hitherto been practised, in order that such assessments may be made with equality, there shall be a valuation of estates within the commonwealth, taken anew once in every ten years at least, and as much oftener as the general court shall order." In the constitutional convention the committee appointed to prepare a declaration of rights and a frame of a constitution reported a draft of a constitution which gave to the general court in the matter of taxation only the authority "to impose and levy proportional and reasonable assessments, rates and taxes, upon all the inhabitants of, and persons resident, and estates lying, within the said commonwealth, *** and upon all estates within the same, to be issued and disposed of by warrant," etc. This was, in effect, the same as in the province charter. This draft also contained the following provision: "And that public assessments may be made with equality there shall be a valuation of estates within the commonwealth taken once in every ten years at least." Journal of Convention 1779-80, p. 198, c. 2, § 3 of the Draft. In the convention the paragraphs above quoted were referred to committees, who reported them in the form in which they stand in the constitution. Id. pp. 61-63.

Under the province charter, the general court had laid imposts and excises, in addition to taxes and assessments, upon the persons and estates of the inhabitants; but it is evident that the framers of the constitution intended that the authority to do this should be express. But neither in the province nor in England had there been a tax on legacies and inheritances at the time when the constitution was adopted, although it was a form of taxation which had been used on the continent of Europe. See The Inheritance Tax, by Max West, vol. 4, No. 2 of the Studies in History, Economics, and Public Law of Columbia College; Smith, Wealth of Nations, bk. 5, c. 2; Dos Passos, Law Coll.Inher. Taxes; Hanson, Probate, Legacy & Succession Duties.

The descent or devolution of property on the death of the owner in England and in this country has always been regulated by law. We have no occasion in these cases to consider whether the legislature has the power to make the commonwealth the universal legatee or successor of all the property of all its inhabitants when they die, for the purposes, not only of paying the public charges, but also of distributing the property according to its will among the living inhabitants, or for the purpose of abolishing private property altogether. We assume that under the constitution this cannot be done, either directly or indirectly; that the legislature cannot so far restrict the right to transmit property by will or by descent as to amount to an appropriation of property generally; that it cannot impose a tax which shall be equivalent or almost equivalent to the value of the property, and cannot so limit the persons who can take as heirs, devisees, distributees, or legatees that the great mass of all the property of the inhabitants must become vested in the commonwealth by escheat. The state can take property by taxation only for the public service, and we assume that its right to take property, if any exists, by regulating the distribution of it on the death of the owner, is limited in the same manner, and that this right must be exercised in a reasonable way. Under our system of law, the right to make a will or testament, and the right to transmit or take property by descent, are now mainly, if not wholly, regulated by statute. In Mager v. Grima, 8 How. 490-493, the supreme court of the United States say of a statute of Louisiana: "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 terms 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," In Brettun v. Fox, 100 Mass. 234, this court say: "The objection of the respondent that the statute could not constitutionally limit the owner's power of testamentary disposition is equally novel and unfounded. The power to dispose of property by will is neither a natural nor & constitutional right, but depends wholly upon statute, and may be conferred, taken away, or limited and regulated, in whole or in part, by the legislature; and no exercise of legislative authority in this respect is more usual than that which secures to a widow a certain share in the estate of her husband." See Lavery v. Egan, 143 Mass. 389, 9 N.E. 747.

If under the power to regulate the devolution of property on the death of the owner, the legislature cannot take away altogether the inheritable quality of property, yet such regulations as are thought reasonable concerning the persons who can take or transmit real or personal property by will or inheritance have been made in every civilized state. Taxes on legacies and inheritances or on succession in any form to property on the death of the owner have generally been considered, not as taxes upon property, but as excises upon the privilege of taking or transmitting property in this way. The decision in Curry v. Spencer, 61 N.H. 624, that a statute imposing such a tax is in violation of the constitution of New Hampshire, goes on the ground that the tax is not proportional, and so cannot be supported as a tax upon property under the constitution of that state, which, it seems, authorizes only taxes and assessments upon polls and property. See State v. U.S. & C. Exp. Co., 60 N.H. 219. The constitution of the United States, by article 1, § 8, provides as follows: "The congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States." Direct taxes must be apportioned among the several states according to the respective numbers of their inhabitants, to be determined as provided by the second section of the same article. In Scholey v. Rew, 23 Wall. 331, the validity of the succession taxes imposed by the United States statute of June 30, 1864, as amended by the statute of July 13, 1866, was considered. 13 Stat. 287 et seq.; 14 Stat. 140 et seq. There was no room for any contention that the congress of the United States could regulate in the states the transmission of property by will or inheritance, and the question was whether it had authority under the taxing power to impose such taxes. The decision was that such taxes were not direct taxes, but excises or duties, and, as such, within the authority of congress to lay and collect without apportionment among the states. The decisions generally are that such taxes are...