the State, during this period of administration and control by its tribunals and their appointees, thinks fit to impose a tax upon the property, there is no obstacle in the Constitution and laws of the United States to prevent it." Thus there is nothing to prevent the State from taxing estates undistributed, even if the act is passed subsequently to date of death. This is the English rule."

In a recent case in Pennsylvania, however, the court seemed inclined to doubt whether, if the Collateral Act of 1887-consolidating the law of that State-assumed to tax any other or different estates than those provided for in previous statutes, it would be constitutional; but the objection seems only to have referred to a requirement of the Constitution that the title of the act should clearly indicate the subject-matter of the bill.

§ 15. Not a tax upon exports or commerce: These statutes have also been before the Federal Supreme Court, upon the claim that a statute of Louisiana taxing foreign legatees violated the rights of aliens under treaty between the Federal Government and foreign powers, and conflicted with the Constitution, but it was held that the power of

1 Citing Ennis v. Smith, 14 How. 400; In re Ewing, 1 C. & J. 151; Atty.-Genl. v. Napier, 6 Ex. Ch. 217; Lawrence v. Kitteredge, 21 Conn. 577; 1 Barb. Ch. 180.

2 See cases supra, and Atty.-Genl. v. Middleton, 3 H. & N. 125; Cooley on Taxation, 2d ed. 376; Chapter I, p. 9.

3 Com's. App. (Cooper's Est.), 127 Pa. St. 441; affg. 5 Penn. C. R. 271; Com's. App. (Billinger's Est.), 1889, 129 Pa. St. 338: 18 Atl. 132. See Sec. 5, supra.

the State to impose such a tax upon foreign legatees was similar to that which the State exercised in taxing its own citizens: that the State, in allowing aliens to inherit, conferred a privilege which it could tax or withdraw totally, and that aliens were not entitled to exemption under the Constitution 1 being a tax upon commerce or exports.*

1

§ 16. Conflicting with treaties and alien rights.— The Louisiana statute also came before the Supreme Court in 1856, when it was contended that it conflicted with the treaty of France made in 1853, which stipulated against the imposition of inheritance taxes, but as the decedent died in 1848 the court held that the treaty could not divest rights accruing before it went into effect, and it was doubted, under the express terms of the treaty, whether the Federal Government could control the succession laws of the State in the absence of an act of the State repealing the law and accepting the provisions of the treaty."

Where the State law conflicts with a treaty between the Federal Government and a foreign power, it is held that such law becomes pro tanto inoperative as against citizens of such foreign power, and the treaty being the supreme law of the land, and retro-active as well as prospective, the fact that the law existed

2

1 Sections 8-10 of Article I.

Mager v. Grima, 1850, 8 Howard, 490; affg. 12 R. (La.) 584. See Arnaud v. Holland, 3 La. 337-560, and Dallinger v. Rapello, 14 Fed. Rep. 33.

3 Prevost v. Greneaux, 19 Howard, 1; affg. 12 A. (La.) 577. 4 See, also, Fredarickson v. Louisiana, 1859, 23 How. 445; Succession of Schaffer, 13 A. (La.) 113.

before the treaty went into effect would make no difference.1

§ 17. Government bonds and State securities.Perhaps one of the best illustrations of the exact nature of this tax as being one that is imposed upon the privilege of succeeding to property and not upon the property per se, which is merely used as a medium for ascertaining the value so as to fix the amount of the tax, is that of government bonds and State stocks or securities declared by general laws to be exempt from all taxation. These securities have been, nevertheless, subjected to the collateral inheritance tax.3

One of the earliest cases upon this subject is that of Strode v. Com., where the State sought to collect a collateral tax upon an estate a part of which was composed of government bonds devised to collaterals, and the right of the State to collect the tax upon the value of these bonds was upheld upon the familiar grounds stated above and within the ruling of the

1

Succession of Dufour, 10 A. (La.) 391; Succession of Amat,

18 A. (La.) 403; Succession of Crassius, 19 Id. 369; Hanenstein

v. Lynham,

100 U. S. 483; Cooley on Taxation, 2d ed. 100.

2 Wallace

v. Myers, 38 Fed. Rep. 184.

"The statute of West Virginia, L. 1887, ch. 31, p. 111, expressly taxes all public securities for money of every kind; also that of Maryland; Appendix, sec. 1. The United States Supreme Court has frequently held that a State statute imposing a tax upon bank capital invested in United States bonds is unconstitutional, but it seems these were cases of a property tax purely, and have no application to a tax of this character. Bank of Commerce v. Comm's. 2 Black. 620; Bank Tax Cases, 2 Wall. 200; Banks v. The Mayor, 7 Wall.

16.

4

Federal Courts.1 Chapman, P. J., said, "But the view entertained by the court is, that no Act of Congress impinges upon the collateral inheritance law. This law contemplates the imposition of no tax such as Congress intended to prohibit. It is called a tax or duty, but has little or no analogy to a tax in the usual acceptation of the term. It cannot be regarded as a penalty exactly, but it approximates that as nearly as it does an ordinary tax." Woodward, C. J., in giving the opinion of the Supreme Court, said: "Neither the prohibitory clause of the Act of Congress of 1862, nor any of the principles of decision against State authority to tax that which Federal authority has exempted from taxation, have any application here. The Federal Government has not prohibited the State from prescribing rules of inheritance and succession to estates of decedents, and it would be a grievous mistake of legislative and judicial authority to apply it with such effect."

Upon the same principle, the tax was held rightfully imposed upon a collateral who was a devisee of certificates issued by the State of Pennsylvania for a State loan which were declared by the law under which they were issued to be exempt from State, municipal or local taxation;5 and in a recent case in New York the law of that State was upheld by the

3 It is not a penalty or forfeiture. Arnaud v. Holland, 3 La. 337; Matter of Vanderbilt, N. Y. Law Jour. April 22, 1890.

4 Page 189.

5 Com. v. Herman, 1885, 16 Wkly. N. C. 210.

United States Circuit Court, where the State sought to assess taxes upon government bonds passing to collaterals under a decedent's will.1

In the Wallace case (supra) it was contended that the fact that the tax was assessed upon the value of the bonds showed that it was a property tax and that it was therefore void. The Circuit Court said: "The circumstances that incidentally under such a statute such bonds may have to be valued in order to ascertain the amount of the tax does not affect its essential nature as one upon the privilege and not upon the bonds. Such a tax is no more upon the bonds than an income tax is one upon the property out of which the income is derived or an excise tax is one upon the articles manufactured or sold. The bonds are the subject of the appraisal, but the privi lege is the subject of the tax." 8

18. Legatee's or owner's domicile as to personal property and its situs.-Under this, one of the most important branches of the collateral tax law, questions that are beset with difficulty constantly arise. As the majority of these questions do not, however, strictly involve constitutional or jurisdictional points, their discussion and treatment, with one or two exceptions, has been deemed more appropriate under

1 Wallace v. Myers, 1889, 38 Fed. Rep. 184; citing Mager v. Grima, 8 How. 490; Carpenter v. Penn. 17 Id. 456. See, also, Matter of Howard, 1887, 5 Dem. 483.

2 See Pullen v. Commissioners, 1872, 66 N. C. 363, where a like objection was overruled.

3

Citing Society for Savings v. Coits, 6 Wall. 594; Hamilton Co. v. Mass. 6 Id. 632; People v. Insurance Company, 92 N. Y. 328, aff'd 119 U. S. 129.