Tyson v. State

• Decision Date: 30 April 1868
• Citation: 28 Md. 577
• Parties: JOHN S. TYSON, and others, v. THE STATE OF MARYLAND.
• Court: Maryland Court of Appeals

28 Md. 577

JOHN S. TYSON, and others, v. THE STATE OF MARYLAND.

Court of Appeals of Maryland

April 30, 1868

APPEAL from the Orphans' Court of Howard County.

Annie M. Hopkins, by her last will and testament, which was filed and admitted to probate in the Orphans' Court of Howard county, on the 19th of April, 1864, appointed John Snowden and R. P. Snowden, trustees and executors, and to them devised and bequeathed all her property in trust for the sole and separate use of her sister, Mrs. Rachel Tyson, for life, (except one hundred dollars annually of the income, to each of the children of Mrs. Tyson,) and after her decease, to the child or children of Mrs. Tyson, in fee, in equal portions, share and share alike. Provision was also made for the emancipation of certain slaves, at designated periods. On the 19th of June, 1866, the Orphans' Court of Howard county, passed an order to cite Rachel Tyson Cornelia, Annie M. and John S. Tyson, to appear on the 3d of July, 1866, "to show cause why they should not pay the collateral tax;" and citation issued accordingly for the above named and Ida Tyson. On the 10th of July, 1866, the said parties appeared, describing themselves as "collateral devisees of the estate of Annie M. Hopkins deceased," and asked leave "to except to any order of the Court requiring them or either of them to pay, for the use of the State of Maryland, the tax or any part of the tax of one and one-half per cent. on the value of said estate mentioned in the 81st Art. of the Code of Pub. Gen'l Laws, under the title of 'tax on collateral inheritances distributive shares and legacies,' " because:

1. The imposition of said tax is in violation of the 15th Article of the Declaration of Rights, of the Constitution of the State of Maryland.

2. The tax is over and above, and in addition to the proportion of public taxes for which said estate, the holder or holders thereof is, or are liable, and is not imposed or laid with a political view for the good government and benefit of the community.

3. The exaction of said tax would be the taking of private property for public use, without just compensation as agreed upon by the parties or awarded by a jury, being first paid or tendered to the owners of said property.

4. If the Court pass any order for the payment of said tax, said order must require a portion of said tax to be paid by each of the devisees, and the three devisees, Cornelia, Annie M. and Ida Tyson, are not, nor is either of them, assessed to the value of fifty dollars or more.

5. Cornelia, Annie M., John S. and Ida Tyson, are only entitled to a remainder in fee-simple after the termination of a life estate, and are therefore not liable for the payment of taxes on the property devised, until the death of the " cestui que vie."

6. Part of the estate devised, appraised at the value of $4324.94, is a public loan created by the United States, and exempt from taxation by the state of Maryland.

On the 18th of June, 1867, the Orphans' Court passed an order overruling the exceptions, save in so far as they applied to the bonds of the United States, which were exempted from the tax, and requiring that on the balance of the estate, the tax amounting in the whole to $899.93, be apportioned among and paid by the collateral devisees, as follows:

By Rachel Tyson, ....	$108 01
By Cornelia Tyson, ...	197 98
By Annie M. Tyson, ...	197 98
By Jno. S. Tyson, ....	197 98
By Ida Tyson, ........	197 98
	-------
	$899 93

And "that the defendants pay the costs of this cause." From this order, the defendants on the same day appealed.

A motion was made to dismiss the appeal, which was argued at the same time with the case on its merits.

The cause was argued before NELSON, STEWART, MILLER, ALVEY and ROBINSON, J.

John S. Tyson, for the appellants:

The exceptions filed in the Orphans' Court are in the nature of a plea to the jurisdiction, or authority of that Court. They alleged that the Legislature cannot confer upon that Court, authority to order payment of the tax. The motion to dismiss this appeal upon the ground that the order of the Orphans' Court is final, is therefore a petitio principii, since it assumes that that Court had authority to pass the order. Moreover the Code professes only to make the decision of the Orphans' Court final as to the proportion to be paid by each party--a matter not at all involved in this appeal. The appellants rely on the 15th Article of the Declaration of Rights of 1864. This is the same as the 13th Article of 1851, except that in the former the words " on persons or property" are omitted. The principle of liability for taxes, in proportion to actual worth in real and personal property, declared by the 13th Article of the Declaration of Rights, is a bar to double taxation. State vs. Stirling, 20 Md. Rep., 516, 520; Moale vs. Mayor, &c., of Baltimore, 5 Md. Rep., 320; Mayor, &c., of Baltimore vs. Balt. and Ohio R. R. Co., 6 Gill, 291; Williams' Case, 3 Bland, 253-256.

This tax is additional to the proportion of public taxes to which this property is liable under the regular State and county assessment. Therefore it is barred by the Declaration of Rights. Nor is it sufficient, to sustain the validity of this tax, that it is borne proportionally by all property collaterally devised. "The Legislature can impose no tax upon it, which is not equally borne by every other species of property within the State, in proportion to its value." Mayor, &c., of Baltimore, vs. Balto. and Ohio R. R. Co., 6 Gill, 291. The fact that the same property may be designated by two names or descriptions, will not make it liable to taxation under both names or descriptions. Exemption of the stock is exemption of the franchise and property of the company. Gordon, Ex'r, vs. Mayor, &c., of Baltimore, 5 Gill, 236. A tax on stock is, in effect, a tax on deposits invested in such stock. If an extra tax can be put on all property collaterally devised, why not on all property devised in any way? Why not on all property descended in any way? Why not on any property that the Legislature may choose to put it upon? To this untenable ground must they be driven, who would defend this unjust and illegal imposition.

Why are United States bonds exempt? They are exempt by law from all taxation. But the Declaration of Rights exempts the balance of the estate, not from all taxation, but from all extra taxation. If the State can levy this tax, it can, with equal right, levy a tax of one hundred per centum, and thus deprive the appellants altogether of their property. If the tax can be levied once, it can be levied every year. The only defense against this injustice, is the great principle of equality of taxation. In the Declaration of Rights another principle is involved, besides that of equality, viz: that only the holder of property is liable for taxes on it. It follows that the trustee and not the cestui que trust, is to pay taxes. Latrobe, Trustee, vs. Mayor, &c., of Baltimore, 19 Md. Rep., 21. And so the Act of 1864, ch. 200, declares that the person to whom an estate may be devised, whether " in trust or otherwise," is to pay this tax. It follows also that the reversioner is not liable for taxes during the tenancy for life. A reversioner may be a pauper, or not assessed to the value of $50. Code of Pub. Gen'l Laws, Art. 81, sec. 5. It is so averred in this case, and the onus probandi is upon the State to show the contrary.

The constitutionality of this tax has always been discedited, even by the Legislatures which imposed it, as shown by the stringent provisions enacted to prevent the validity of the law from being contested. 1844, ch. 237, sec. 6; 1845, ch. 202, sec. 3; 1846, ch. 344, sec. 3; Code of Pub. Gen'l Laws, Art. 93, sec. 50.

These provisions destroy what little respect the lapse of time might otherwise have obtained for this law.

The appellee claims that "the tax in question belongs to the same class as licenses, stamp duties," &c. On the contrary, it differs from these altogether, in being a direct tax on property; and if the principle of equality has any application at all, it is applicable to a direct tax, not laid with a political view, but solely as a revenue measure. A stamp tax, so-called, is not a tax in the ordinary sense, either on property, or on the paper, or parchment. It can only be justified, if at all, upon the theory, that the State may prescribe as a part of the form of contracts, &c., that they shall be written on stamped paper. And there is some appearance of reason in saying, that this imposition is a tax on the property " in passing," since the stamp is put upon the instrument by which the property passes. But if the State, by such subterfuges as these, can violate the spirit and evade the letter of the great principal of equality of taxation, that is no reason why the State, not having used any subterfuge, but placed a direct tax on property, should be allowed openly to violate both the letter and the spirit of the fundamental law.

George W. Sands, for the appellee:

On the motion to dismiss the appeal the appellee relies on the 137th sec. of Art. 81, of the Code of Pub. Gen'l Laws, which provides that in a case like the one at bar, "the Orphans' Court of the county or city in which administration is granted, shall determine in its discretion and at such time as it shall think proper, what proportion each party who may be thus interested in said estate or property, shall pay of said tax; and the judgment of the said Court shall be final and conclusive;" therefore, no appeal will lie from the order in question. But assuming that the Court may entertain the appeal, the appellee insists that the tax in question was...