State v. District Court of Second Judicial Dist. of Montana in and for Silver Bow County
| Decision Date | 19 April 1924 |
| Docket Number | 5494. |
| Parties | STATE EX REL. RANKIN, ATTY. GEN., v. DISTRICT COURT OF SECOND JUDICIAL DIST. OF MONTANA IN AND FOR SILVER BOW COUNTY ET AL. |
| Court | Montana Supreme Court |
Petition by the State of Montana, on the relation of Wellington D Rankin, Attorney General, against the District Court of the Second Judicial District of the State of Montana in and for the County of Silver Bow, and Honorable Joseph R. Jackson, a judge thereof, to determine the amount of inheritance tax payable from the estate of James A. Murray, deceased. The district court entered an order denying the petition, and relator applied for writ of supervisory control. Writ granted, with directions.
W. D Rankin, Atty. Gen., in pro. per.
Kremer Sanders & Kremer, of Butte, and Henry C. Smith, of Helena, for respondents.
This is an original application for a writ of supervisory control. Upon the filing of the petition an order to show cause was regularly issued, and the matter presented for decision pursuant to such order.
It appears that by the Seventeenth Legislative Assembly, in Extraordinary Session, an act was regularly passed and approved, providing for the imposition of "a tax on direct and collateral inheritances, bequests and devises." Chapter 14, Laws Extr. Session 1921; sections 10377-10400, Rev. Codes 1921. That act was approved March 26, 1921, and by its terms it was to become effective from and after the 1st day of April, 1921. By it a tax on direct and collateral inheritances, bequests, and devises was imposed upon every transfer of property, except a transfer to the state or one of its subdivisions or to an organization devoted exclusively to religious, charitable, or educational purposes. An enumeration of the transfers effected is set forth, including a transfer by will, laws of succession, or by a deed or gift made in contemplation of death; the rates and exemptions being prescribed.
On May 11, 1921, one James A. Murray died in the county of Monterey, state of California, and "left estate and property in the state of Montana, consisting of real property, tangible and intangible personal property, stocks and bonds, choses in action and other property" alleged to "have a value of upwards of one million dollars." In April, 1923, Mary H. Murray, the widow of the deceased, tendered to the state treasurer the sum of $150, contending that under the act she was not required to pay more than the primary rate on $15,000, since by the act she, as widow of the deceased, was given an exemption to the full extent of $10,000 of the value of the estate passing to her, and that she was not required to pay a tax on any amount to be distributed to her under the terms of the will of the deceased in excess of the sum of $25,000. The state treasurer refused to accept the tax tendered by her, and thereupon she applied to this court for a writ of mandamus to compel the state treasurer to accept the amount of the tax tendered by her. After hearing had, pursuant to an alternative writ issued, her contention was sustained and the writ made peremptory. State ex rel. Murray v. Walker, State Treas., 64 Mont. 215, 210 P. 90. Subsequently, and as a direct consequence of that decision, the Legislature in 1923 reenacted the Inheritance Tax Law (chapter 65 of the Laws of 1923), and provided therein for the payment of a tax by lineal heirs on the value of all property descending to them in excess of certain stated amounts; the exemption allowed to a widow of a decedent being fixed at $17,500. Subsequent to this later enactment, on the 14th of March, 1923, the relator herein, as Attorney General for Montana, filed in the district court of Silver Bow county a petition for the appointment of a special appraiser of the value of the estate of James A. Murray, deceased, to determine the amount of inheritance tax required to be paid the state of Montana therefrom. Objections were regularly made by W. S. K. Brown as executor of the last will and testament of James A. Murray, deceased, to the application, and thereafter the matter was regularly brought on for hearing and heard in department No. 1 of the district court, before Hon. Joseph R. Jackson, judge thereof. After having been presented, argued, and submitted, an order was by the court entered on February 16, 1924, denying the petition and sustaining the objections made thereto. Thereupon, on February 28, 1924, the relator duly filed and presented his petition herein to this court.
As to the propriety of the issuance of the writ, it is urged that there is an adequate remedy provided by appeal. Suffice it to say, we are of the opinion that sufficient showing is made for the invocation of the extraordinary supervisory power of this court by the allegations of the petition. An order refusing to appoint a special appraiser of the amount of the inheritance tax chargeable against an estate is not among the appealable orders specially enumerated in the statute. However, whether such an appeal may be included within the general language employed in the first subdivision of section 9731, Rev. Codes 1921, is not here necessary for decision. The remedy by appeal, if it exists at all, is neither plain, speedy, nor adequate. In re Tuohy's Estate, 23 Mont. 305, 58 P. 722; State ex rel. Rubin v. District Court, 62 Mont. 60, 203 P. 860; State ex rel. Duggan v. District Court, 65 Mont. 197, 210 P. 1062.
The question presented for our decision in this proceeding is whether the retroactive provisions of the act of 1923 are constitutional.
By that act it is provided, in part:
"A tax shall be and is hereby imposed upon any transfer of property, real, personal or mixed, or any interest therein, or income therefrom in trust or otherwise, to any person, association or corporation * * * in the following cases: * * * (4) When imposed: Such tax shall be imposed when any such person or corporation becomes beneficially entitled, in possession or expectancy, to any property or the income thereof, by any such transfer whether made before or after the passage of this act; provided that the provisions of this act shall apply to all estates of all decedents who have died since the first day of April, 1921, and which estates remain undistributed on the date when this act takes effect, to the same extent and in the same manner as though this act had been in full force and effect at the dates of death of such decedents, and if any tax shall have been paid by any executor, administrator, heir, legatee or devisee of any such decedent before the date when this act takes effect, the amount of such tax so paid shall be allowed as a credit on the total amount of tax required to be paid by such executor, administrator, heir, legatee, or devisee under the provisions of this act." Section 1.
It will be noted that attempt is thus made to have the statute apply to all estates of decedents who died since April 1, 1921, "which estates remain undistributed on the date when this act takes effect," March 5, 1923.
We approach a consideration of the constitutionality of the act in question, indulging the presumption that it is constitutional, it being our duty to uphold it unless it unconstitutionality is apparent beyond a reasonable doubt. State ex rel. Bonner v. Dixon, 59 Mont. 58, 195 P. 841; Gas Products Co. v. Rankin, 63 Mont. 372, 207 P. 993, 24 A. L. R. 294.
It is urged by counsel for the respondents "that subdivision 4 of section 1" of the 1923 act, being the retroactive clause thereof, "is unconstitutional and void" because in "violation of the constitutional guaranties requiring equal protection of the law, due process of law," and because attempt is thereby made to fix "an arbitrary, artificial, and abortive classification among decedents."
The retroactive feature of the act is made the basis of the attack, it being argued that it violates the prohibition of the Constitution against special or class legislation (section 26, art. 5), or the due process of law clause (section 27, art. 3). Counsel's contention is that the fourth section of the act subjects the beneficiaries of the estates of decedents who died since April 1, 1921, where the estates remained undistributed on March 5, 1923, to an unfair and arbitrary discrimination; that by that section a particular class of persons are singled out and burdens imposed upon them not general in application; and that it authorizes the taking of property without due process of law. Many cases are cited bearing generally on the requirement of equal protection of the laws and due process of law, but in our opinion they are without application. There is no express provision of our state Constitution requiring equal protection of the laws. However, the state is bound to observe the. requirement of equal protection of the laws to citizens of the United States within its jurisdiction, as commanded by the federal Constitution. Section 1, art. 14. We can see no merit in the respondent's position, for by the act it applies generally and equally to all estates remaining undistributed where the decedents have died since April 1, 1921. Had no date been definitely established by the act, no one would be heard to contend reasonably that it is not within the right of the sovereign to impose a tax on all estates of decedents remaining undistributed. The fixing of a definite date does not change the situation, as the act is of equal application to all estates of deceased persons who died since April 1, 1921, whose estates remain undistributed.
The act itself makes a distinction between primary and secondary beneficiaries, thus classifying them, and imposing different burdens; as to this, no objection is urged, and were such contention made, it would be dismissed as wholly lacking merit. If the...
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