Davidson v. New Orleans, 96 U. S. 97, 24 L. ed. 616; Wurts v. Hoagland, 114 U. S. 606, 29 L. ed. 229, 5 Sup. Ct. Rep. 1086; Kentucky R. Tax Cases, 115 U. S. 321, sub nom. Cincinnati, N. O. & T. P. R. Co. v. Kentucky, 29 L. The right of succession does not attach un- ed. 414, 6 Sup. Ct. Rep. 57; Hagar v. Reciatil the condition has been complied with.mation Dist. No. 108, 111 U. S. 701, 28 L. ed. One accepting the property takes it with the burden, or upon the terms, which the law imposes.

warranted invasion of the province of the ju- | the manner of estimating the tax to be dicial department.

1 Black, Judgm. ed. 1891, § 298.

paid on the property. Section 3 of that act provides, in substance, that the real estate of the deceased subject to the tax shall be appraised within thirty days next after the ap

The legislative action cannot be made to retroact upon past controversies, and to reverse decisions which the courts, in the ex-pointment of the executor, and that the tax ercise of their undoubted authority, have made.

Cooley, Const. Lim. 5th ed. p. 113, and cases cited. 2 Hare, Am. Const. Law, ed. 1889, 847; People ex rel. Butler v. Saginaw County Supers. 26 Mich. 21; Hart v. Henderson, 17 Mich. 218; Ratcliffe v. Anderson, 31 Gratt. 105, 31 Am. Rep. 716; Re Handley, 15 Utah, 212, 49 Pac. 829.

thereon, calculated on the appraised value, shall be paid within fifteen months after the approval of the appraisement. The appraisement made of the personal property by the regularly appointed appraisers seems to be made the basis for levy of the tax on that kind of property. No notice to the heirs, legatees, or devisees is provided for or required. For this reason it is said that the act is unconstitutional, because it results in a deprivation of property without due proc

When litigation has proceeded to a judgment which determines the controversy on the merits it is beyond the power of legisla-ess of law. What is due process of law tion to alter or control.

Martin v. South Salem Land Co. 94 Va. 28, 26 S. E. 591; Skinner v. Holt, 9 S. D. 427, 69 N. W. 595.

The statute of 1896 was wholly void from the date of its enactment, and has ever since continued to be. It could not be revived by an allusion to it in an alleged amendatory act passed by a later general assembly.

An amendatory act, to be valid as such, must relate to an existing statute, and not to one which is nonexistent, or has been repealed or declared unconstitutional. 23 Am. & Eng. Enc. Law,

p. 277.

Deemer, J., delivered the opinion of the

court:

a

within the meaning of Federal and state Constitutions is not clearly defined. As said by Justice Miller in Davidson v. New Orleans, 96 U. S. 97, 24 L. ed. 616: "If, therefore, it were possible to define what it is for a state to deprive a person of life, liberty, or property without due process of law in terms which would cover every exercise of power thus forbidden to the state, and exclude those which are not, no more useful construction could be furnished by this or any other court to any part of the fundamental law. But, apart from the imminent risk of a failure to give any definition which would be at once perspicuous, comprehensive, and satisfactory, there is wisdom, we think, in the ascertaining of the intent and application of such an imThe 1st section of the act in question reads portant phrase in the Federal Constitution as follows: "All property within the juris- by the gradual process of judicial inclusion diction of this state, and any interest therein, and exclusion, as the cases presented for dewhether belonging to the inhabitants of this cision shall require, with the reasoning on state or not, and whether tangible or intan- which such decisions may be founded." Mr. gible, which shall pass by will or by the stat- Webster's definition in the Dartmouth Colutes of inheritance of this or any other state, lege Case [4 Wheat. 518, 4 L. ed. 629], has or by deed, grant, sale or gift, made or in- been more generally followed than any other. tended to take effect in possession or in en- Among other things, he said: “It was joyment after the death of the grantor or law which hears before it condemns; which donor, to any person in trust or otherwise, proceeds upon inquiry, and renders judgment other than to or for the use of the father, only after trial. The meaning is that every mother, husband, wife, lineal descendant, citizen shall hold his life, liberty, property. adopted child, the lineal descendant of an and immunities under the protection of the adopted child of a decedent, or to or for char- general rules which govern society. Everyitable, educational, or religious societies or thing which may pass under the form of an institutions within this state, shall be sub-enactment is not, therefore, to be considered ject to a tax of five per centum of its value, above the sum of one thousand dollars, after the payment of all debts, for the use of the state; and all administrators, executors, and trustees, and any such grantee under a conveyance, and any such donee under a gift, made during the grantor's or donor's life, shall be respectively liable for all such taxes to be paid by them, respectively, except as herein otherwise provided, with lawful interest, as hereinafter set forth, until the same shall have been paid. The tax aforesaid shall be and remain a lien on such estate from the death of the decedent until paid." Acts 26th Gen. Assem. chap. 28. This is followed by provisions requiring the executor to make and file a separate inventory of the real estate subject to the tax, an appraisement of said real estate by appraisers approved by the clerk, the filing of the appraisement, and

the law of the land." As a general rule, confiscation of property without a judicial hearing after due notice is not due process of law. There are, of course, exceptions,-as, for instance, where it becomes necessary to destroy private property to prevent the spread of fire or pestilence in a city, or the advance of an army,-but these exceptions are due to overruling necessity. In Gatch V. Des Moines, 63 Iowa, 718, 18 N. W. 310, these questions were very fully considered, and it was there held that the legislature could no more impose an assessment for which property may be taken and sold than it can render a judgment against a person without hearing; that notice of proceedings in such cases, and an opportunity for a hearing of some description were matters of constitutional right, and that a special assessment for the cost of improving streets could not lawfully

and all administrators, executors," etc., shall be liable for all such taxes to be paid by them, and the tax aforesaid shall be and remain a lien on such estate from the death of the decedent until paid." Section 3 of the act provides that all real estate subject to the tax shall be appraised within thirty days after the appointment of the executor, and the tax calculated thereon upon the appraised value shali be paid by the person entitled to said estate, and in default thereof the court shall order the same, or so much thereof as may be necessary to pay the tax, to be sold. It will thus be seen that the right of testamentary disposition or of inheritance as it had theretofore existed is recognized by this statute. The property passes to the heir, devisee, or legatee just as it did prior to the enactment of this law; but a lien is imposed upon it under certain conditions, in virtue of the right of the state to tax successions, and the amount of the lien or tax is to be determined by an appraisement of the property. If the statute provided that thereafter certain persons should not be permitted to take by will under the statute, except on condition that they pay a tax fixed by an appraisement of the property, there would be more reason for saying that such a tax, being strictly upon the right of succession, and not upon property in which the heir or legatee had an interest, might be levied and collected without notice to the parties in interest. But such is not the case. The property, whether disposed of by will or descending under the statutes of the state, became the property of the devisee, legatee, or heir immediately upon the death of the testator or ancestor; and the measure of liability for the tax is fixed by an appraisement of the property, made after the testator's death. Sustaining the proposition that an heir has a vested interest in the property of his ancestor upon the death of such ancestor, see Weaver v. State (filed at the present term) 81 N. W. 603, and Moore v. Gordon, 24 Iowa, 158. The collateral-inheritance statute imposes a burden upon this interest

be imposed upon abutting property without notice to the owner, and an opportunity to be heard in opposition thereto. In that case certain exceptions were noted as follows: "It is true that there are some species of taxes to which the rule is not applicable. They embrace a poll tax, license tax, a tax upon occupations, and the like, where the tax is specific, and operates upon all alike. Taxes of these and like kinds are plainly exceptions to the rule, because a hearing would be of no possible avail. In such cases the law fixes the amount, and there is nothing left to inquire into and determine." The attorney general frankly concedes that, if the tax in question is a property tax, the demurrer was properly sustained, because of the fact that neither the statute nor the rules of court at that time provided for notice. But he insists that the tax is upon the right of succession; is a succession tax; in fact, that the state has the right to impose such taxes as a condition upon the privilege of inheritance, and that no notice of the appraisement is required. Such taxes as are imposed by the act under consideration have been almost universally denominated succession taxes, and they have been upheld on the theory that the right to succeed to property upon the death of the owner is the creation of law, and that the state, which creates this right, may regulate it; that is, it may say how and to what extent the succession may go, may impose conditions and burdens thereon, and may, to a certain extent, fix the situs of property for the purpose of taxation. See Clymer v. Com. 52 Pa. 187; Strode v. Com. 52 Pa. 181; Re Swift, 137 N. Y. 77, 18 L. R. A. 709, 32 N. E. 1096; Miller v. Com. 27 Gratt. 117; Magoun v. Illinois Trust & Sav. Bank, 170 U. S. 283, 42 L. ed. 1037, 18 Sup. Ct. Rep. 594. The history of such taxes is a most interesting study, but is entirely too long to be considered in this opinion. See, as bearing on the question, State v. Alston, 94 Tenn. 674, 28 L. R. A. 178, 30 S. W. 750; Dowell, Hist. Tax'n Eng. 148; Review of Reviews, Feb., 1893. Wills, and therefore testaments, and rights of inheritance and succession, are, as Black-which is fixed and determined by an appraisestone says, "all of them creatures of the civil or municipal law, and accordingly are in all respects regulated by them." This is fundamental doctrine, and it is no doubt true that there is nothing in our fundamental law to prevent the legislature from taking away or limiting the right of testamentary disposition or of inheritance, or imposing such condition on its exercise as it may deem best for the public good. See United States v. Perkins, 163 U. S. 625, 41 L. ed. 287, 16 Sup. Ct. Rep. 1073; United States v. Fox, 94 U. S. 315, 24 L. ed. 192; Mager v. Grima, 8 How. 490, 12 L. ed. 1168; Eyre v. Jacob, 14 Gratt. 427, 73 Am. Dec. 367.

tax

ment of the property, and no provision for notice to the heir or devisce, or for opportunity to be heard, is made. Call this tax what you will, it is evident that it deprives or may deprive a citizen of his property without notice and opportunity to be heard. Doubtless it is not a property tax in the strict sense of that term, but the amount is not fixed and certain, as it is where a specific license or occupation tax is imposed. In such cases, as said in the Gatch Case, there is nothing left to inquire into and determine. Special assessments for improvements are not, strictly speaking, taxes, but it is held that notice of proceedings in such cases, and opportunity for a hearing of some description, are matters of constitutional right. As said by Judge Cooley in his work on Taxation, at pages 255, 256: "It is not to be presumed that constitutional provisions carefully framed for the protection of property were intended or could be construed to sanction for the use of the state, 'legislation under which officers might strictly

These well-settled propositions do not, as we view it, settle the question raised by the demurrer. The statute says that "all the property within the jurisdiction of the state which shall pass by will or by the statutes of inheritance of this or any other state shall be subject to a tax of five per centum of its value

We are abindingly convinced that the acts of the 26th general assembly are, for the reason stated, contrary to the provisions of both the Federal and state Constitutions.

assess one for any amount in their discre- | manner cures the constitutional objection. tion without giving an opportunity to contest the justice of the assessment. When the assessment is based upon value or benefit, whether it be a tax on property or succession tax, and that value is to be ascertained by ap- 2. The 27th general assembly passed an act praisement, assessors, or other tribunal known as 'chapter 37, Amendatory Act,' prowhich involves inquiry, notice and an oppor-viding for notice to all parties interested of tunity for hearing are essential to the valid- the appraisement of the property. It is arity of the proceedings." Hagar v. Reclama-gued by the attorney general that this cured tion Dist. No. 108, 111 U. S. 701, 28 L. ed. the defect in the law, and that, as the case 569, 4 Sup. Ct. Rep. 663, 28 L. ed. 569; Stu- is triable de novo in this court, we have art v. Palmer, 74 N. Y. 183, 30 Am. Rep. 289. power to modify the decree entered by the The succession tax of the state of New York district court, and hold the property subject provides for notice to parties interested, and to the tax. By § 2 of that act the law was in Re McPherson, 104 Ñ. Y. 321, 58 Am. Rep. made retroactive, and it is claimed that the 502, 10 N. E. 685, the Supreme Court of that decree should be reversed in view of this state said: "This tax is imposed according subsequent legislation. A succession tax to the value of the legacy and collateral in- may be imposed on property not yet distribheritance liable to be taxed, and hence there uted. Carpenter v. Pennsylvania, 17 How. must be some method of ascertaining that 456, 15 L. ed. 127; Cooley, Taxn. 2d ed. 376. value; and for that purpose judicial action is And, if the original act was cured by the requisite at some stage of the proceeding be- amendatory act, we see no reason why it fore the liability of the taxpayer becomes should not be made to apply to estates undisfinally fixed. He must have some kind of no-tributed at the time the amendatory act went tice of the proceedings against him, and a into effect. The original act imposed a tax hearing, or an opportunity to be heard, in upon the property of the testator, and dereference to the value of his property and clared that it should be a lien on the estate the amount of the tax which is thus to be im- from the death of the decedent until paid. posed. Unless he has these, his constitution- The rate per cent is also fixed, and appraiseal right to due process of law has been in- ment was necessary simply to fix the value vaded,"-citing cases heretofore referred to. of the property in order that the tax might The attorney general contends, however, be computed. There is no valid objection to that the tax is simply a claim against the es- the levy of such a tax; that is to say, it is tate, and that no notice of the filing or hear- not an illegal or unauthorized tax. It is ining of such claims is required to be given to valid simply because the legislature did not the heirs or legatees. The difficulty with this provide for notice of the proceedings by proposition is that the claim is not against which the amount of the tax was to be asthe estate; surely not against the estate certained. That the legislature may cure alone. Indeed, it may never pass through such defects is fundamental. See Iowa R. the hands of an administrator, for, as a rule, Land Co. v. Soper, 39 Iowa, 112; Iowa Sav. the administrator has nothing to do with the & L. Asso. v. Heidt, 107 Iowa, 297, 43 L. R. real estate. A large part of the Stewart es- A. 689, 77 N. W. 1050; Huff v. Cook, 44 Iowa, tate was real estate situated in Pottawatta- 639; Richman v. Muscatine County Supers. mie county. The tax was made a lien on this 77 Iowa, 513, 4 L. R. A. 445, 42 N. W. 422: real estate, and under the provisions of the Tuttle v. Polk, 84 Iowa, 12, 50 N. W. 38: act in question the devisee was authorized to Clinton v. Walliker, 98 Iowa, 655, 68 N. W. pay the tax directly to the state treasurer, 431. Appellees' counsel say, however, that and the treasurer was authorized to collect the estate vested on the death of the testator. the same by suit. Again, it is said that by and that any charge made thereon by the legthe provisions of § 15 of the act the district islature after his death is unconstitutional court has jurisdiction to hear and determine and void. As to real estate this is true, perall questions relating to said tax that may haps, although it is best that we do not dearise affecting any devise, legacy, or inherit- cide the point on the arguments before us. ance, subject to appeal, as in other cases, etc., As to the personal estate the rule seems to and that this affords such hearing as avoids be different, however. While the distributive the constitutional objection. We do not share is a vested interest,-that is, vests in think this is true. The proceedings referred point of right at the time of the death of the to in this section are such as may arise upon intestate, yet the persons who take and the appearance of the parties. The tax is fixed amount to be received must be ascertained by the appraisement, of which no notice is re- and determined by the probate court. So quired; and the section itself does not con- long as the estate remains unsettled, the legtemplate notice. It merely gives the court islature may cure any defects in the law crejurisdiction to hear certain contests that may ating a lien thereon, and the act may be made arise relating to the tax, and affecting any retroactive. The cases heretofore cited so devise, legacy, or inheritance. Without this firmly settle this principle that we need do provision it is no doubt true that the district no more than refer to them. A re-enactment court would have jurisdiction to determine of the whole statute was unnecessary. The any question relating to the tax that was amendatory act simply removed an impediproperly brought before it, and the statute ment to the enforcement of the tax, and, simply gives that court, acting as a court of when that impediment was removed, the orprobate, jurisdiction of the matter. It in no'iginal act was effectual, and capable of en

to marry a woman for the purpose of es-
caping a prosecution for seduction, and after-
wards to desert her without just cause, is
not in violation of Const. art. 1, § 6, requir-
ing all laws of a general nature to have a
uniform operation, as it simply imposes a
liability for the doing of specific acts, and
every man so doing comes within its opera-
tion.
(April 8, 1899.)

tion than the obligations of a mutual agree- A statute making it a crime for a man ment. A judgment is not of itself a contract in a constitutional sense. If it be based on contract, the obligation thereof cannot be impaired by subsequent legislation, but if upon tort or other cause of action not entitled to protection as a contract, then the judgment may be imposed without violating the constitutional inhibition. Sprott v. Reid, 3 G. Greene, 489; Garrison v. New York, 21 Wall. 196, 22 L. ed. 612; Freeland v. Williams, 131 U. S. 405, 33 L. ed. 193, 9

Sup. Ct. Rep. 763; Louisiana ex rel. Folsom v. New Orleans, 109 U. S. 285, 27 L. ed. 936, 3 Sup. Ct. Rep. 211.

A the District Court for Polk County discharging plaintiff from the custody of de

PPEAL by defendant from a judgment of

fendant to which he had been committed while under indictment for violation of a statute prohibiting desertion of their wives by persons who marry under compulsion. Reversed.

Statement by Granger, J.:

Moreover, while the judgment in this case was conclusive and binding between the parties from the time it was rendered, if not superseded as provided by law, yet, in view of the appeal, it was subject to modification or reversal so long as this court had jurisdiction of the case. Surely, this court is not The plaintiff was arrested on preliminary estopped by any constitutional provision from rendering any judgment it may see fit information, and at the examination he was on appeal, and we may, in so doing, especial-held for appearance to answer the action of ly in equity cases, consider the law as it exists at the time we are called upon to act. This is elementary law, sustained by some of the authorities already cited. While it is true that the original act was unconstitutional because it did not provide for notice, that defect has now been cured, and we must decide the case on appeal in the light of the

was

law as it now exists. That the case
heard in the trial court on demurrer, and
was presented to us on assignment of error,
does not qualify this rule. The facts are ad-
mitted, and it is simply a question of law to
be determined by this court on the agreed state-
ment of the facts. The Iowa Land Company
Case was tried on demurrer, and yet the deci-
sion was rendered under the law as it existed
at the time the case was heard in this court.
No new fact is introduced. We are
strained to hold that, in view of the subse-
quent legislation, the judgment of the trial
court should be reversed, and the cause re-

con

manded for further proceedings in harmony with this opinion. But it should not be understood from this holding that any of the property is subject to the tax. That question

must be determined from the facts as shown upon a trial on the merits. It may be that{ no tax can be collected from the real estate. On that point we express no opinion. And it may further appear that the personal estate was distributed, in whole or in part, at the time the amendatory act was passed, and that no tax should be imposed on the personal property. That question is left open for further consideration. The parties will each pay one half the costs of this appeal. Reversed.

Granger, Ch. J., not sitting.

the grand jury on a charge of violating the provisions of section 4764 of the Code. A warrant of commitment issued to the defendant sheriff, commanding him to detain the plaintiff in the jail of the county until legally discharged by due course of law. The plaintiff presented his petition to the district court, reciting facts and charging the restraint as illegal, and, in accord with the prayer, a writ of habeas corpus issued; and the defendant made return thereto, showing the facts under which plaintiff was held in custody, and presented a demurrer to the petition, which the court overruled, sustaining the writ and discharging the plaintiff. The defendant appealed.

Messrs. Milton Remley, Attorney General, and James Nugent, for appellant:

A law is not objectionable where it applies with equal force to all the persons who may fall within its operation.

McAunich v. Mississippi & M. R. Co. 20
Iowa R. Land Co. v. Soper, 39 Iowa, 112;
Iowa, 338; Cooley, Const. Lim. pp. 480 et
seq

Messrs. Bowen & Brockett, for appel

] lee:

The designation of persons who shall be affected by a statute must be a reasonable and natural classification.

Cooley, Const. Lim. pp. 481 et seq.; Sutherland, Stat. Constr. § 127, p. 162.

Is it reasonable and natural that the lawmaking branch of the government should select from deserting husbands those who married partly or wholly from the motive of es

NOTE. As to marriage to escape prosecution for seduction, see State v. Otis (Ind.) 21 L. R. A. 733; and Henneger v. Lomas (Ind.) 32 L. R. A. 848.