The State ex rel. Garth v. Switzler

• Decision Date: 15 March 1898
• Citation: 45 S.W. 245,143 Mo. 287
• Parties: The State ex rel. Garth et al., Executors of Conley's Will, v. Switzler, Judge of Probate
• Court: Missouri Supreme Court

45 S.W. 245

143 Mo. 287

The State ex rel. Garth et al., Executors of Conley's Will, v. Switzler, Judge of Probate

Supreme Court of Missouri

March 15, 1898

Proceedings quashed.

Turner & Hinton, C. B. Sebastian and W. M. Williams for relators.

(1) John C. Conley died prior to the passage of the amendatory acts of March 16 and 17, 1897. If, therefore, the act of April 1, 1895, is in conflict with the Constitution, there was no law in force at the time of his death imposing a collateral succession tax. Const. art. II., sec. 15; In re Langdon, 41 N.E. 401; In re Embury, 45 N.Y.S. 621; Estate of Roosevelt, 25 L. R. A. 695. (2) The act of April 1, 1895, is in conflict with section 28 of article IV of the Constitution of this State. Witzman v Railroad, 131 Mo. 612; State ex rel. v. Baker, 129 Mo. 482; State ex rel. v. Heege, 135 Mo. 112; Henderson v. Ins. Co., 34 N.E. 565; Moses v. The Mayor, 51 Ala. 198. (a) The act contains more than one subject, and for that reason is a violation of the constitutional provision. (b) The title is insufficient and misleading. (c) The legislature seems to have recogonized the insufficiency and misleading character of the title of the original act and changed it in the act of 1897 so as to show some of the various kinds of taxes created. This is a clear indication that the legislative department of the State deemed the title of the act of 1895 too narrow to give such fair notice of its contents, to those interested, as should be given. (3) (a) The text provided for by this act is not levied for a public purpose, within the meaning of section 3 of article X, of the Constitution. Deal v. Mississippi Co., 107 Mo. 464; Loan Ass'n v. Topeka, 20 Wall. 655; Cole v. LaGrange, 113 U.S. 1; Lowell v. Boston, 111 Mass. 463; State ex rel. v. Osawkee Township, 14 Kan. 418; Kingman v. Brocton, 11 L. R. A. 123; Allen v. Inhabitants, Etc., 60 Me 124; Feldman v. Charleston, 23 S.C. 57; Mead v Acton, 1 N.E. 413. (b) The General Assembly has no power to make a grant of public money or thing of value to any individual, or asssociation of individuals, nor to authorize any county of the State so to do. Sections 46 and 47, article IV of the Constitution. It is not denied that the support of the State university is a public purpose for which a tax may be legitimately levied. But it is quite another thing to furnish money from such sources to students, to enable them to buy food and clothing for their own use while pursuing their studies. (c) This money is not even required to be used for the support and maintenance of the holder of the scholarship. It is paid for that purpose, but when given to him, it becomes his property, and no account is demanded of its disposition. (d) The bounty created by the act is to be paid to a favored class, who are in nowise a public charge, and are not treated as such. It is, in effect, the exaction of money from one class of persons for the benefit of another class. Cooley on Tax. [2 Ed.], p. 221; Burroughs on Taxation, pp. 18-21; Sewickley School Dist. v. Osborne School Dist., 6 Pa. Dist. Rep. 211; Philadelphia Ass'n v. Wood, 39 Pa. St. 73; State v. Osawkee Township, 14 Kan. 418; Mead v. Acton, 1 N.E. 413; Henderson v. Insurance Co., 34 N.E. 565; Hitchcock v. St. Louis, 49 Mo. 484. (e) The purpose of this tax being to raise a bounty for a privileged class of students at the university, it can not be said that one part of the act may be valid although another part is in violation of the Constitution. The various provisions of the act are wholly inseparable, so far as the general object is concerned. The case comes within the principle laid down in Webb v. Lafayette Co., 67 Mo. 363; Chambe v. Durfee, 58 N.W. 661; Cooley on Const. Lim., sec. 178. (4) The tax created by the first section of the act of April 1, 1895, is not "uniform upon the same class of subjects within the territorial limits of the authority levying the tax." It charges a higher rate when the amount of the property exceeds $ 10,000, than when its value is less than that sum, and is in violation of section 3, article X, of the Constitution of this State; and also, of the fourteenth amendment of the Constitution of the United States, and, if regarded as a tax upon the property of the estate, as the language used would indicate, it is not levied in proportion to value, and can not be upheld under section 4, article X, of the Constitution. State ex rel. v. Ferris, 30 L. R. A. 218; State ex rel. v. Gorman, 41 N.W. 948; Curry v. Spencer, 60 Am. Rep. 337; State ex rel. v. Mann, 45 N.W. 526; State v. Hamlin, 25 L. R. A. 632; State v. Speigle, 75 Mo. 145; State v. Julow, 129 Mo. 163. (a) The language of the act requires the tax to be levied upon the appraised value of the estate left by the deceased, and it becomes a charge upon said estate, which the personal representative is to pay out of the assets in his hands. It is perfectly apparent, therefore, that in the manner in which this tax was levied, its operation and effect upon the estate is precisely the same as if it was a tax upon the property itself. In re Westburn Estate, 46 N.E. 315. Regarded as a tax on property, it is too plain for argument that it violates the constitutional provision requiring taxes upon property to be levied in proportion to value. (b) If, upon the other hand it can be construed as establishing a succession tax, then the constitutional mandate that taxes must be "uniform upon the same class of subjects," is applicable. It is a mere arbitrary division to set off classes of successions, according to valuation, and impose a different rate per cent, as the value of the property is greater or less. If this can be done, there is no limit to the number of classes into which successions by those standing in the same relation to the deceased, may be divided for taxation. County v. Railroad, 13 F. 722. (5) A succession tax should be paid by the legatee or distributee, or be taken out of his particular share. State ex rel. v. Mann, 45 N.W. 526; Moore v. Sargent, 104 U.S. 689. (a) The act of March 16, 1897, requires the estate to be valued and the tax assessed immediately after the return of the inventory and appraisement. It is impossible at that time to determine what debts will be established against the estate, or whether there will be anything for legatee or distributee. The tax must be paid, too, before the expiration of the time for proving debts. In re Westburn Estate, 46 N.E. 315. (b) The act makes no provision for notice to the parties interested, and gives them no opportunity to be heard upon the assessment. Such notice, as well as an apportunity to be heard, is a constitutional right. (c) If the act, as it came from the lislature, is unconstitutional, because it fails to provide for notice and a hearing it can not subsequently be validated by the appearance of the parties interested before the probate judge. Stuart v. Palmer, 74 N.Y. 183; Dos Passos on Inher. Tax Laws [2 Ed.], sec., 22; Evans v. Fall River Co., 68 N.W. 195; Bieswarger v. Warner, 5 Mo.App. 582. (6) Where an act, or portion of an act, is amended "so as to read" in a prescribed way, it has been said that the section amended is entirely repealed and obliterated thereby. Endlich on Interp. of Stat., sec. 196, p. 265; State ex rel. v. Railroad, 9 Mo.App. 532; Knox v. Baldwin, 80 N.Y. 610; Nash v. Bank, 45 N.Y. 243.

Silas B. Jones also for relators.

(1) The legislature may lawfully interfere with private property only in the following instances: (a) It may authorize it to be forfeited for crime, or sold for the owner's debts, in pursuance of judicial proceedings. (b) It may take it under the power of eminent domain for public use. (c) It may condemn it under the police power, when its use or situation is such as to endanger public safety. (d) It may take it by virtue of the taxing power. Except on these grounds, private property is inviolable, is beyond the reach of the legislature. Hanson v. Vernon, 27 Iowa 28. (2) The succession tax, whether it be regarded as imposed upon the property or upon the succession or devolution of property by will or intestacy, is in either case a special tax. In re McPherson, 104 N.Y. 306; Curry v. Spencer, 61 N.H. 624. (3) The succession tax is a tax on the right of succession under a will, or by devolution in case of intestacy. In re Hoffman, 143 N.Y. 327; In re Est. of Swift, 137 N.Y. 77; State v. Dalrymple, 70 Md. 294; Schoolfield v. Lynchburg, 78 Va. 370; Dos Passos Inher. Tax Law [2 Ed.], sec. 8, p. 31. It is not a tax upon property, but upon the right to receive property. State v. Ferris, 41 N.E. 579; State v Alston, 30 S.W. 750; U. S. v. Perkins, 163 U.S. 625; State v. Hamlin, 83 Me. 495; Minot v. Winthrop, 162 Mass. 113; Cooley on Taxation [2 Ed.], p. 584. (4) Every burden imposed by the State with a view to revenue is done by virtue of the taxing power, whether imposed under the name of a tax or some other designation. Glasgow v. Rowse, 43 Mo. 490; St. Louis v. I. & T. Co., 47 Mo. 150; St. Louis v. Spiegel, 90 Mo. 587; St. Louis v. Bowler, 94 Mo. 630; St. Louis v. Green, 70 Mo. 562; St. Joseph v. Ernst, 95 Mo. 360. (5) Taxes may be levied and collected for public purposes only. Constitution, art. X, sec. 3; Deal v. Mississippi Co., 107 Mo. 464; Egyptian Leevee Co. v. Hardin, 27 Mo. 498; Glasgow v. Rowse, 43 Mo. 479; Railroad v. Maguire, 49 Mo. 490; Sheehan v. Hospital, 50 Mo. 155. (6) A law which specifically appropriates the property of the citizen and takes it from one person and transfers it to another, would not be an exercise of the taxing power, no matter by what name it is called. Railroad v. Maguire, 49 Mo. 490; State ex rel. v. Leffingwell, 54 Mo. 475; Deal v. Mississippi Co., 107 Mo. 464. (7) The legislative branch of the government is without lawful...