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Pennsylvania.-" Conceding for argument's sake merely that the legislature has power under our constitution to so change the law of descent and succession as to give the commonwealth a certain portion of every decedent's estate, or otherwise to regulate the transmission or devolution of such estates, it does not by any means follow that the direct inheritance tax law under consideration is such an act."

Cope's Estate, 191 Pa. St. 1, 23; 43 A. 79.

South Dakota.-" Treating it as the taxation of the privilege or right or even more correctly the taxation of the transmission of property, it is readily seen that it becomes absolutely immaterial whether we consider the transmission of or succeeding to property an inherent right or a statutory privilege. A corporation acquires its right to do business by the charter received. A natural person has an inherent right to do such business. If the state determines to tax the exercise of such right, it does so as to both the persons and the corporation, utterly disregarding the nature or source of the right.

"This charge imposed upon transmission of property is clearly a tax and has nothing to do with and is not at all dependent for its validity upon the right to regulate the succession of property."

McKennan's Estate, 25 S. D. 369, 377; 126 N. W. 611.

Tennessee." It is a retention by the state of a part of a deceased person's property which the state may take to meet its necessities, and which in certain cases it may take in toto as in case of escheated property."

State v. Alston, 94 Tenn. 674; 30 S. W. 750.

Utah.-"When, as here, the tax is not one which is controlled by our constitution it is for the legislature to say to what extent and upon what property it shall become operative."

Matter of Bullen, 151 Pac. 533.

Vermont.-"All agree that this is a tax upon the right to succeed to estates left vacant by death and is imposed by the sovereignty regulating that right in virtue of its authority to enforce contribution from those who become invested with property by grace of its power."

In re Joslyn, 76 Vt. 88; 56 A. 281.

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Virginia." The objection that the tax is not levied upon the heir or legatee but is to be paid out of the estate of the decedent and, therefore, that it cannot be considered a tax upon the privilege of succeeding to the property is, I think, more specious than real. Whether the tax is paid by the personal representative before he turns over the estate to the party entitled or by the latter after he receives it, the effect is the same. It is in either case a premium paid for the right enjoyed and the value of the estate is exactly diminished by the amount of the premium."'

Eyre v. Jacob, 14 Gratt. 422, 429.

Washington." The act imposes a tax on the right of succession."

White v. Tax Commissioners, 42 Wash. 360; 84 Pac. 831.

Wisconsin.-"It is not a tax upon property or upon property rights in any sense, but purely an excise levied upon the transfer or transaction and merely measured in amount by the amount of the property transferred.”

Beals v. State, 139 Wis. 544; 121 N. W. 347.

United States." Thus the tax is not upon the property in the ordinary sense of the word but upon the right to dispose of it, and it is not until it has yielded its contribution to the state that it becomes the property of the legatee."

United States v. Perkins, 163 U. S. 625; 16 S. Ct. Rep. 1073.

To the same effect are:

Matter of Sherwell, 125 N. Y. 376; 26 N. E. 464.

Magoun v. Ill. Trust and Sav. Bk., 170 U. S. 283; 18 S. Ct. Rep. 594.

Plummer v. Coler, 178 U. S. 115; 20 S. Ct. Rep. 829.

Re Magnes, 32 Colo. 52; 77 Pac. 853.

Re Macky, 45 Colo. 316; 101 Pac. 334.

Wieting v. Morrow, 151 Ia. 590; 132 N. W. 193.

Leavell v. Arnold, 131 Ky. 426; 115 S. W. 232.

Schoolfield v. Lynchburg, 78 Va. 366.

Pullen v. Commissioners, 66 N. C. 361.

Humphreys v. State, 70 Ohio St. 67; 70 N. E. 957.
Thompson v. Kidder, 74 N. H. 89; 65 A. 392.

Tyson v. State, 28 Md. 577.

Drew v. Tifft, 79 Minn. 175; 81 N. W. 839.

But if the act is construed as a property tax it is void:

Cope's Estate, 191 Pa. St. 1; 43 A. 79.

Chambe v. Durfee, 100 Mich. 112; 58 N. W. 661.

Re Fox, 154 Mich. 5; 117 N. W. 558.

The legislature has inherent power to impose inheritance taxes:

Snyder v. Bettman, 190 U. S. 249; 23 S. Ct. Rep. 803.

Curry v. Spencer, 61 N. H. 624.

State v. Lancaster, 4 Neb. 537.

Re Nettleton, 76 Conn. 235; 56 A. 565.

Re Joslyn, 76 Vt. 88; 56 A. 281.

Re Inheritance Tax, 23 Colo. 492; 48 Pac. 535.

State v. Clark, 30 Wash. 439; 71 Pac. 20.

2. The Privilege Taxed.

It is obvious that the authorities are unanimous in declaring that an inheritance tax is not and cannot be a tax on property without violating the constitutional principles of uniformity and equality. They also agree that such a tax is an excise or impost upon the right or privilege of transmitting property from the dead to the living.

It is equally apparent that there is some confusion or inaccuracy as to whether the inheritance tax imposed by

a particular statute is on the right to transmit, the right to receive, or both. It is described as a succession tax on the right to receive by the courts of Colorado, Connecticut, Michigan, Minnesota, Montana, Nebraska, New Hampshire, New Jersey, North Carolina, Ohio, Vermont, Virginia and Washington.

It is referred to as a bonus, premium or excise on the right to control the disposition of property after death by the courts of Louisiana, Tennessee and Wisconsin; but the statutes under construction were distinctly succession taxes on the share of each beneficiary.

It is described as a tax on both the right to devise and the right to inherit by the leading cases in California, Illinois, Maine, Massachusetts, New York, South Dakota, and the United States Supreme Court.

In truth the rights can scarcely be separable, for, if there is a transfer, and the tax is on that transfer, there must be a transferrer and a transferee. No court adopting one theory denies that the other is equally tenable. Clearly if the legislature has power to tax the privilege of transmitting it must also have the power to tax the privilege of receiving and vice versa.

When it comes to the imposition of the tax the wide divergence between the two theories becomes apparent. If the tax is on the right to transfer it is on the entire estate without reference to the beneficiaries. This is practicable as long as it is a "flat rate," such as is imposed on the whole estate by the statutes of Rhode Island and was formerly imposed in New York

The difficulty arises when graded rates are imposed on the right to transmit, viz., upon the entire estate, without reference to the beneficiaries. If the estate is $1,000,000 and there are legacies of $100,000 to three heirs of different degrees of relationship and a residuary of $700,000, and the tax is on the whole estate $50,000, at one rate, $100,000

at another rate, and so on up to the million, and no provision is made for adjustment among the beneficiaries, we have the confusion worse confounded" produced by the federal tax of 1916.

The right to transmit, being a single right, should be uniformly taxed, without rates graded in proportion to the amount of the transfer. Graded rates have thus far only been sustained when the tax is on the succession and is apportioned among the beneficiaries. Whether they are constitutional when imposed on the right to transfer without reference to the transferee remains to be determined. State v. Ferris, 53 Ohio St. 314; 41 N. E. 579..

Knowlton v. Moore, 178 U. S. 41, 76; 20 S. Ct. Rep. 747.

3. Statutes Held Invalid.

In 1897 Pennsylvania enacted a direct inheritance tax which was declared unconstitutional as a tax on property, though it was substantially copied from statutes sustained in other states on the theory of a tax on privilege; but the court is careful not to say that a statute might not be sustained on the privilege theory if so worded as to be clearly an excise.

Cope's Estate, 191 Pa. St. 1; 43 A. 79.

In view of the overwhelming authority upholding such statutes it is not improbable that the Pennsylvania courts would now uphold a carefully drawn direct inheritance tax. The original collateral inheritance tax was enacted in that state in 1826, prior to the present constitution. Inheritance tax statutes have also been held invalid for a lack of uniformity and equality in Missouri, Minnesota, New Hampshire, Ohio, and Wisconsin.

Minnesota, New Hampshire and Wisconsin have amended their constitutions and the subsequent inheritance tax laws are now upheld in those states. Missouri has

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