ment thereof which it sees fit, such as a tax. Carried to its ultimate conclusion this reasoning would permit the legislature to confiscate the estates of decedents, by the imposition of an excessive tax, and some of the courts have thus unequivocally declared. But the soundness of such a theory may well be deemed doubtful.168

16

There is no doubt that the right of testamentary gift is subject to such reasonable regulations and restrictions in respect to the form and substance of the testamentary instrument, the manner of its execution and revocation, the competency of the maker to give and the eligibility of the beneficiaries to receive, as the legislature deems expedient to adopt; but to suppose that a right so long and universally recognized as it has been rests entirely upon legislative enactment, and can be absolutely denied at the pleasure of the legis

16 Pullen v. Wake County, 66 N. C. 361; Eyre v. Jacob, 14 Gratt. 422, 73 Am. Dec. 367.

16a "The descent or devolution of property," says Justice Field, "on the death of the owner in England and in this country has always been regulated by law. We have no occasion in these cases to consider whether the legislature has the power to make the commonwealth the universal legatee or successor of all the property of all its inhabitants when they die, for the purposes, not only of paying the public charges, but also of distributing the property according to its will among the living inhabitants, or for the purpose of abolishing private property altogether. We assume that under the constitution this cannot be done, either directly or indirectly; that the legislature cannot so far restrict the right to transmit property by will or by descent as to amount to an appropriation of property generally; that it cannot impose a tax which shall be equivalent or almost equivalent to the value of the property, and cannot so limit the persons who can take as heirs, devisees, distributees, or legatees that the great mass of all the property of the inhabitants must become vested in the commonwealth by escheat. The state can take property by taxation only for the public service, and we assume that its right to take property, if any exists, by regulating the distribution of it on the death of the owner, is limited in the same manner, and that this right must be exercised in a reasonable way"; Minot v. Winthrop, 162 Mass, 113, 26 L. R. A. 259, 28 N. E. 512..

lature, is to misinterpret the law and ignore one of the most cherished of property rights."

19

While the legislature is undoubtedly competent to change the rule of inheritance, or provide that heirs shall take subject to such burdens as the payment of debts, or make the deprivation of the right to inherit a portion of the penalty imposed for the commission of a crime, or attach to the privilege the condition that a part of the property shall be contributed to the state in the form of an inheritance tax,18 it certainly is not so free from doubt as the unanimity of the decisions would seem to indicate that the state may appropriate all of the estate of deceased persons by abolishing laws of inheritance and devise. Said Justice Winslow in the case of Nunnemacher v. State: " "But, while we utterly reject the doctrine of Eyre v. Jacob,20 and hold that the right to demand that property pass by inheritance or will is an inherent right subject only to reasonable regulation by the legislature, we are not thereby brought to the conclusion that inheritance or succession taxes cannot be levied. They do not depend upon the right to confiscate. We agree entirely with the ideas expressed by the supreme court of Massachusetts in Minot v. Winthrop," where it is said: 'We assume that, under the constitution, this (i. e., the taking of all property by the state on the death of the owner) cannot be done either directly or indirectly; that the legislature cannot so far restrict the right to transmit property by will or by descent as to amount to an appropriation of property generally; that it can

17 1 Ross on Probate Law and Practice, 14; Nunnemacher v. State, 129 Wis. 190, 9 Ann. Cas. 711, 9 L. R. A., N. S., 121, 108 N. W. 627.

18 1 Ross on Probate Law and Practice, 122; Estate of Wilmerding, 117 Cal 281, 49 Pac. 181; Estate of Tuohy, 35 Mont. 431, 90 Pac. 170. 19 Nunnemacher v. State, 129 Wis. 190, 9 Ann. Cas. 711, 9 L. R. A., N. S., 121, 108 N. W. 627.

20 Eyre v. Jacob, 14 Gratt. 422, 73 Am. Dec. 367.

21 Minot v. Winthrop, 162 Mass. 113, 26 L. R. A. 259, 38 N. E. 512.

not impose a tax which shall be equivalent, or almost equivalent, to the value of the property, and cannot so limit the persons who can take as heirs, devisees, distributees, or legatees that the great mass of all the property of the inhabitants must become vested in the commonwealth by escheat. The state can take property by taxation only for the public service, and we assume that its right to take property, if any exists, by regulating the distribution of it on the death of the owner is limited in the same manner, and that this right must be exercised in a reasonable way.' No one doubts for a moment that a government may levy a tax upon transfers of land or upon business transactions; it is done by the federal government in this country whenever additional and extraordinary revenues are needed, in the form of stamp duties. These taxes are not based upon the power to interdict or prohibit such transactions, but upon the power to reasonably regulate and tax them. Succession or inheritance taxes may well be sustained upon the same principle; not upon the power to prohibit, but upon the power to reasonably regulate and tax."

And Justice Marshall, referring to the doctrine that the right to transmit or receive property by will or descent may be abolished at the pleasure of the legislature, observed: "True, it has been affirmed over and over again by judges and courts of the highest respectability. Eminent jurists whose names are written high in the temple of judicial fame have stood sponsors for it. But the greatest errors of the past have had the most distinguished supporters. If it were true that error could be sanctified by mere weight of the number or ability of its advocates, and be given the character of infallible truth by the mere force of repetition, then the error that the constitutional guaranties do not reach the subject we are considering would have long ago taken such deep root that the most courageous

could not have hoped to dislodge it. But such, as experience shows, is not the case. Error, though often repeated, is error still, and, because it is error, it is mortal, and must be swallowed up by immortality.

22

§ 8. Basis of Right of Congress to Impose Tax.If an inheritance tax is regarded as a charge on the transmission and not on the property itself, and the authority to impose it is based on the power to regulate the transmission of property of deceased persons, the question arises whether Congress, which has no authority over the devolution of property in the several states, is competent to impose an inheritance tax. This question, when argued before the supreme court of the United States, in Knowlton v. Moore,23 was answered in this language: "Can the Congress of the United States levy a tax of that character? The proposition that it cannot rests upon the assumption that, since the transmission of property by death is exclusively subject to the regulating authority of the several states, therefore the levy by Congress of a tax on inheritances or legacies, in any form, is beyond the power of Congress, and is an interference by the national government with a matter which falls alone within the reach of state legislation. . . . . The fallacy which underlies the proposition contended for is the assumption that the tax on the transmission or receipt of property occasioned by death is imposed on the exclusive power of the state to regulate the devolution of property upon death. The thing forming the universal subject of taxation upon which inheritance and legacy taxes rest is the transmission or receipt, and not the right existing to regulate. In legal effect,

22 Nunnemacher v. State, 129 Wis. 190, 9 Ann. Cas. 711, 9 L. R. A., N. S., 121, 108 N. W. 627.

23 Knowlton v. Moore, 178 U. S. 41, 44 L. Ed. 969, 20 Sup. Ct. Rep.

then, the proposition upon which the argument rests is that wherever a right is subject to exclusive regulation, by either the government of the United States, on the one hand, or the several states on the other, the exercise of such rights as regulated can alone be taxed by the government having the mission to regulate. But when it is accurately stated, the proposition denies the authority of the states to tax objects which are confessedly within the reach of their taxing power, and also excludes the national government from almost every subject of direct and many acknowledged objects of indirect taxation. . . . . It cannot be doubted that the argument, when reduced to its essence, demonstrates its own unsoundness, since it leads to the necessary conclusion that both the national and state governments are devested of those powers of taxation which from the foundation of the government admittedly have belonged to them. Certainly, a tax placed upon an inheritance or legacy diminishes, to the extent of the tax, the value of the right to inherit or receive, but this is a burden cast upon the recipient and not upon the power of the state to regulate.

Under our constitution system both the national and the state governments, moving in their respective orbits, have a common authority to tax many and diverse objects, but this does not cause the exercise of its lawful attributes by one to be a curtailment of the powers of government of the other, for if it did there would practically be an end of the dual system of government which the constitution established."

This case of Knowlton v. Moore may be regarded as definitely establishing the doctrine in the federal courts that the power to impose inheritance taxes does not arise solely from the power to regulate the devolution of the property, but rather "from the general authority to impose taxes upon all property within the jurisdiction of the taxing power. It has usually happened