son should be taxed only on the beneficial | he received (People ex rel. George v. interest which he receives. It is not a tax Nelms, supra), and the administrator or on the estate, but on the right to receive executor can only retain from any legacy a portion of the estate. Such is the law the inheritance tax due on that legacy. generally. Knowlton v. Moore, 178 U. S. Section 4 of the inheritance tax law of 41, 44 L. ed. 969, 20 Sup. Ct. Rep. 747; this state provides that any trustee "havRe Westurn, 152 N. Y. 93, 46 N. E. 315. ing any charge or trust in legacies or propThe California courts have held that under erty for distribution, subject to the said its probate act the probate court can do no tax, shall deduct the tax therefrom." The more than pay the claims against an estate Northern Trust Company, as trustee, is and distribute the remainder to the heirs charged with the responsibility of paying and devisees, or direct the administrator out of the respective amounts of the Calito do so; that it has no power to appro-fornia personal property that came to its priate the share of an heir or devisee to possession for the various beneficiaries, the the payment of his debts. Re Nerac, 35 Cal. 392, 95 Am. Dec. 111; Dunsmoor v. Furstenfeldt, 88 Cal. 522, 12 L.R.A. 508, 22 Am. St. Rep. 331, 26 Pac. 518; 3 Kerr's Cyclopedic Codes of California Civil Proc. ¶ 1666, p. 2145. True, the California statute provides that the administrator or executor may retain out of the funds in his hands sufficient to pay the inheritance tax imposed by the California statute, but that provision has no reference to an inheritance tax imposed by a foreign jurisdiction against a portion of the estate or against the person entitled thereto. Under the statute and practice of California courts, the Illinois inheritance tax must be held to be a claim or debt against the distributee or a portion of the estate, and not against the estate itself. The conclusion necessarily follows that the judgment of the county court did not deny to the California court proceedings in question the full faith and credit to which they were entitled by the Constitution and laws of the United States.

Illinois inheritance tax on such legacies before paying the legacies, but neither the administrator nor said trustee should be charged with the inheritance taxes on those legacies which did not come to their hands, but were paid out directly by the California administrator. While such payment directly by said California administrator did not make the legacies so paid free from the Illinois inheritance tax, yet the collection of that tax, if possible to be made at all, would be from the individual beneficiaries. There seems to be no dispute that the correct amount of inheritance taxes was imposed in the county court as to trust funds paid over to the Northern Trust Company by the California administrator, if that court had the right to impose any tax as to the California assets. As we understand this record, some of these taxes are due now, and some may fall due hereafter.

Counsel for appellants further insist that the court erred in basing the inheritance tax against Maud Robinson King, the The order of the county court did not widow, on a supposed succession by her to attempt to impose a liability upon the Cali- one half of the entire estate. If the antefornia administrator or his bondsmen, or nuptial agreement was valid and binding create a lien on any property in that state. upon the widow, she would only be entitled Section 5 of the inheritance tax act provides to receive the $100,000 under said contract that executors, administrators, and trustees and an additional $10,000 as a legacy under shall be personally liable for the payment the will, and the inheritance tax on her of taxes and interest. This provision of right to succeed would be fixed on such the statute applies only to property within | amounts. People v. Field, 248 Ill. 147, 33 this state at the date of the testator's death, L.R.A. (N.S.) 230, 93 N. E. 721. If said or to property that thereafter comes into antenuptial agreement was void, then, the possession of the executor, adminis- under the statute, she could renounce her trator, or trustee. The administrator here rights under the will and elect to take, in received none of the California personal lieu of dower and other rights, one half property or its proceeds. A part of it was of the real and personal estate after the paid out in costs of administration in that payment of just debts and claims. In the state and to the legatees and the balance latter event the amount of the inheritance turned over to the trustee under the will, tax would be fixed by the amount that the Northern Trust Company. Under our she was entitled to receive under the law the administrator or executor or trus- statute. Billings v. People, 189 Ill. 472, 59 tee cannot retain out of the property that L.R.A. 807, 59 N. E. 798. comes into his hands as a gross amount the It is contended by counsel for the people entire sum of the inheritance taxes imposed. that the renunciation under the will filed That law intended that a person should in the probate court of Cook county, taken be taxed only on the beneficial interest that in connection with the compromise, canceled

INDIANA SUPREME COURT. PITTSBURGH, CINCINNATI, CHICAGO, & ST. LOUIS RAILWAY COMPANY, Appt.,

V.

STATE OF INDIANA.

(180 Ind. 245, 102 N. E. 25.)

Interstate commerce — form of cars

power of state.

1. A state may, without interfering with the commerce clause of the Federal Constitution, prescrible the length of and form of running gear upon caboose cars used in the state; at least in the absence of any legis lation by Congress or attempted regulation by the Interstate Commerce Commission upon the subject. Evidence to prove unconstitutional

admissibility.

ity of statute 2. Evidence is not admissible to show that a statute requiring caboose cars to be of a certain length and to be mounted on certain running gear is unreasonable because cars corresponding to those specified are not required for safety, and therefore that the statute which places additional taking property without due process of law. expense on railroad companies is void as Same judical notice ity of statute.

and rendered null and void the antenuptial contract, while counsel for the appellants insist that the settlement did not render the contract void, but was simply a compromise to adjust the differences between the contending interests. The estate, under the statute of descent or by the statute of wills, vests in the party entitled to receive it upon the death of the decedent. The inheritance tax accrues at the time the estate vests. If, in order to avoid litigation, the legatees, contestants, and others in interest under a will compromise their claims, the concessions made, while binding upon the parties, take effect under the agreement, and are not a modification of the will or the rights under it, or under the intestate laws of the state. Re Graves, 242 Ill. 212, 89 N. E. 978; Baxter v. The Treasurer, 209 Mass. 459, 95 N. E. 854. To permit the heirs, legatees, and parties interested in an estate to change, by agreement among themselves after the death of the testator or decedent, the proportionate amounts of the property on which the respective beneficiaries should pay an inheritance tax, might in some instances practically deprive the state of all power of collecting any inheritance tax. Without setting out at length the details of the decree of the circuit court confirming the compromise agreement, we deem it sufficient to say that we do not think the decree or the agreement annulled and set aside the antenuptial contract. They constituted an adjustment and compromise of the dispute as t the validity of the antenuptial contract, separable sections whereby the widow received much less than question constitutionality. she would have received under the statute 4. A railroad company prosecuted for if she had renounced the will and the ante- violating the provisions of a statute requir nuptial contract was held void, but much ing it to remodel caboose cars which go into more than she would have received under the shop for repairs cannot question the the antenuptial contract and the will. The validity of sections of the statute attemptwidow received from the estate of the tes-ing to confer powers upon the Railroad Commission, the provisions of which are not tator, as her beneficial interest under the necessary to the determination of the cause, will and the intestate laws of this state, and are separable from the sections under $110,000, and this is the amount upon which which the prosecution is conducted. she should pay an inheritance tax, less the exemption to which she, as widow, is entitled. The county court should have so held.

The judgment of the county court will be reversed and the cause remanded to that court for further proceedings in harmony with the views herein expressed.

constitutional

3. The court does not judicially know that a caboose car 24 feet long with adjustable and oscillating four-wheeled trucks is not more safe than one 18 feet long with two-wheeled rigid ones, so as to declare a statute requiring a change from the one to the other unconstitutional as taking property without due process of law. Statute

(June 3, 1913.)

right to

Note. Consideration of extrinsic evidence to show unconstitutionality of statute.

This note is supplemental to the note to Stevenson v. Colgan, 14 L.R.A. 459.

Cases as to evidence of passage of acts are excluded. On that question, see note Petition for rehearing denied October 3, to Atchison, T. & S. F. R. Co. v. State, 40

1912.

Writ of error dismissed by Supreme Court of United States for want of finality in judgment, April 13, 1914, 234 U. S. 748, 58 L. ed. 1575, 34 Sup. Ct. Rep. 673.

L.R.A. (N.S.) 1.

This note includes only the comparatively will be seen that in most of the cases cited few cases where the subject is discussed. It infra, the court declined to take evidence. On the other hand in the rate cases it is a matter of course to admit without discussion

A

The facts are stated in the opinion. Messrs. Samuel O. Pickens and Owen Pickens, for appellant:

The act of March 1, 1911, is a regulation of interstate commerce, and therefore void, in that it is repugnant to § 8 of article 1 of the Constitution of the United States and the laws of the United States made thereunder and in pursuance thereof.

Western U. Teleg. Co. v. James, 162 U. S. 650, 655, 40 L. ed. 1105, 1106, 16 Sup. Ct. Rep. 934; Hannibal & St. J. R. Co. v. Husen, 95 U. S. 465, 24 L. ed. 527; Hall v. evidence of facts bearing upon the question whether the rate is or is not reasonable.

PPEAL by defendant from a judgment De Cuir, 95 U. S. 485, 490, 497, 24 L. ed. of the Criminal Court for Marion 547, 548, 551; Bowman v. Chicago & N. W. County convicting it of violating the act R. Co. 125 U. S. 465, 31 L. ed. 700, 1 Inters. regulating the size and construction of Com. Rep. 823, 8 Sup. Ct. Rep. 689, 1062; caboose cars. Affirmed. Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 29 L. ed. 158, Inters. Com. Rep. 382, 5 Sup. Ct. Rep. 826; Henderson v. New York (Henderson v. Wickham), 92 U. S. 259, 272, 23 L. ed. 543, 549; Lake Shore & M. S. R. Co. v. Ohio, 173 U. S. 285, 43 L. ed. 702, 19 Sup. Ct. Rep. 465; Southern R. Co. v. United States, 222 U. S. 20, 56 L. ed. 72, 32 Sup. Ct. Rep. 2, 3 N. C. C. A. 822; Northern P. R. Co. v. Washington, 222 U. S. 370, 56 L. ed. 237, 32 Sup. Ct. Rep. 160; 2 Willoughby, Const. § 310; Southern R. Co. v. Reid, 222 U. S. 424, 56 L. ed. 257, 32 Sup. Ct. Rep. 140; against a legislative assault, it does not seem possible at present to go further and point out any general rule declaring in what cases they will take evidence, and in what cases they will limit their inquiry to facts of which they may take judicial notice. In general, the courts will not take evidence, for example, to overthrow health statutes, and if the health cases seem to be governed by a general rule that the courts will not interfere with the decision of the legislature upon a question where there is a controversy as to the facts, how are we to distinguish the rate cases except by the assumption that the salient fact is capable of exact ascertainment in the rate cases, and not in the health cases, that the one is matter of fact and the other matter of opinion, which is hardly satisfactory. That there is no rule of law on the subject is indicated by the remarkable statement in Monongahela Bridge Co. v. United States, 216 U. S. 177, 54 L. ed. 435, 30 Sup. Ct. Rep. 356, where the court, in refusing to review the decision of the Secretary of War under the Federal statute of 1899, that a certain bridge was an unreasonable obstruction to free navigation, said: "Learned counsel for the defendant suggests some extreme cases showing how reckless and arbitrary might be the action of executive officers proceeding under an act of Congress, the enforcement of which affects the enjoyment or value of private property. It will be time enough to deal with such cases as and when they arise. Suffice it to say that the courts have rarely, if ever, felt themselves so restrained by technical rules that they could not find some remedy consistent with the law, for acts, whether done by government or by individual persons, that violated natural justice, or were hostile to the fundamental principles devised for the protection of the essential rights of property."

Whatever the practical result in a particular case, it must be admitted in theory (1) that a constitutional right is entitled to protection; (2) that the courts will protect it against the assault of the legislature, and (3) that if necessary they will take extrinsic evidence for that purpose (as, for example, in the rate cases). There is therefore no general principle of law that the courts, in considering the validity of a statute, are limited to facts of which they may take judicial notice. "If a statute purporting to have been enacted to protect the public health, the public morals, or the public safety has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge." Harlan, J., obiter, in Mugler v. Kansas, 123 U. S. 623, 31 L. ed. 205, 8 Sup. Ct. Rep. 273.

In Chicago, M. & St. P. R. Co. v. Tompkins, 176 U. S. 167, 44 L. ed. 417, 20 Sup. Ct. Rep. 336, Brewer, J., said: "Courts may not inquire whether any given act is wise or unwise, and only when such act trespasses upon vested rights may the courts intervene. A single illustration will make this clear: It is within the competency of the legislature to determine when and what property shall be taken for public uses. That question is one of policy over which the courts have no supervision; but if, after determining that certain property shall be taken for public uses, the legislature proceeds further, and declares that only a certain price shall be paid for it, then the owner may challenge the validity of that part of the act, may contend that his property is taken without due compensation; and the legislative determination of value does not preclude an investigation in the proper judicial tribunals. The same principle applies when vested rights of property are disturbed by a legislative enactment in respect to rates."

Having thus reached the principle that the courts, if necessary, can and will take evidence to protect a constitutional right

Health laws, etc.

It has been held that in matters of the public health the court would not admit the testimony of experts in order to review the action of the legislature. Com. v. Pear,

In State v. Schlenker, 112 Iowa, 642, 51 L.R.A. 347, 84 Am. St. Rep. 360, 84 N. W. Statute commanding railroad to maintain 698, the court sustained a statute prohibiting the adulteration of milk, which provided that "for the purpose of this chapter the In Louisiana & A. R. Co. v. State, 85 Ark. addition of water or any other substance or 12, 106 S. W. 960, it was held upon a prosething, to whole milk, or skimmed milk or cution against a railroad company for failpartly skimmed milk, is hereby declared an ure to locate and maintain a station at a adulteration," and said: "That the con- certain point as commanded by statute, stitutionality of the statute ought not to be that it was error to exclude evidence ofmade to depend on the finding of a jury on fered by the company tending to show that the facts of a case is manifest. If the plain there was no public necessity for a station provisions of the Constitution have been at the place named, the court stating that violated, or if the act cannot be said to be the fact, if proved, that the cost of erecta proper exercise of the police power in ing and maintaining the station would be view of the facts of which judicial notice greatly in excess of and out of proportion may be taken, then the duty of declaring to the revenues to be possibly derived from the act invalid is clear. But, in the ab- the business at that place would be imsence of such finding, the act should stand.portant for the court to consider in de

80 N. E. 153; Anderson v. Manchester Fire commerce, and does not violate § 8 of article Assur. Co. 59 Minn. 182, 28 L.R.A. 609, 50 1 of the Constitution of the United States Am. St. Rep. 400, 60 N. W. 1095, 63 N. W. and the laws of the United States enacted 241; Dowling v. Lancashire Ins. Co. 92 Wis. thereunder and in pursuance thereof. 63, 31 L.R.A. 112, 65 N. W. 738; King v. Concordia F. Ins. Co. 140 Mich. 258, 103 N. W. 616, Ann. Cas. 87; O'Neil v. American F. Ins. Co. 166 Pa. 72, 26 L.R.A. 715, 45 Am. St. Rep. 650, 30 Atl. 943; United States v. Grimaud, 170 Fed. 205; Elkhart v. Murray, 165 Ind. 304, 1 L.R.A. (N.S.) 940, 112 Am. St. Rep. 228, 75 N. E. 593, 6 Ann. Cas. 748; McPherson v. State, 174 Ind. 60, 31 L.R.A.(N.S.) 188, 90 N. E. 610. Mr. Thomas H. Branaman, with Mr. Thomas M. Honan, Attorney General, for appellee:

Pittsburgh, C. C. & St. L. R. Co. v. State, 172 Ind. 162, 87 N. E. 1034; State v. Louisville & N. R. Co. 177 Ind. 553, 96 N. E. 342, Ann. Cas. 1914D, 1284; New York N. H. & H. R. Co. v. New York, 165 U. S. 632, 41 L. ed. 854, 17 Sup. Ct. Rep. 418; Chicago, R. I. & P. R. Co. v. Arkansas, 219 U. S. 465, 55 L. ed. 296, 31 Sup. Ct. Rep. 275; Southern R. Co. v. Reid, 222 U. S. 436, 437, 56 L. ed. 260, 32 Sup. Ct. Rep. 140.

ditions set up in the complaint as existing in different counties shouid, for the purpose of determining the validity of the law, be taken as true. This position is untenable. The law must be tested as to its constitutionality by its language in the light of such matters as the court will take judicial notice of."

The act is not in conflict with § 1 of The act is not a regulation of interstate the 14th Amendment of the Constitution termining whether or not the requirement "Counsel contends that, because facts alwas arbitrary and unreasonable, and wheth-leged are admitted by demurrer, the coner or not there was any corresponding necessity for a station. "How, it may be asked," said the court, "is the question to be presented and determined whether the statute is a proper exercise of legislative power and valid? Is the validity of the statute a question of law or one of fact? We answer that it is a question of law for the determination of the court. The court may, however, and should, call to its aid all the available facts and information concerning the public necessity for the maintenance of a station at that place, the cost of erecting and maintaining it, as well as any other facts tending to show whether there is a necessity for a station, and whether the requirement placed upon the company to build and maintain it is a reasonable one."

Formation of counties.

In Lee v. Tucker, 130 Ga. 48, 60 S. E. 164, it was held that when the journals of the general assembly show nothing to the contrary, the courts cannot inquire whether at the time of a legislative change of a county site, there had been the constitutional requirement of "a two-thirds vote of the qualified voters of the county, voting at an election for that purpose," as there is no authority in the courts to hear evidence on the subject, citing and following Cutcher v. Crawford, 105 Ga. 180, 31 S. E. 139, where it was held that a certified copy of the election return from the office of the secretary of state, which showed that the requisite vote had not been cast for the removal, was not admissible, as the court was bound to presume that the legislature in some way had satisfied itself that the constitutional two-thirds vote had been given for the change.

In Farquharson v. Yeargin, 24 Wash. 549, 64 Pac. 717, it was urged that an act establishing a new county of Ferry was invalid "because it nowhere appears in the records of the lower house or the senate that the territory proposed to be set off as Ferry county had, at the time of presenting the petition to create such a new county, a population of 2,000, as required by § 3 of art. 11 of the Constitution of the state." The court quoted Lusher v. Scites, 4 W. Va. 11, cited in the earlier note, and said: "We do not think that it is necessary that the records of the senate or the house should contain a recital of the facts determined by the legislature relative to population, any more than a final judgment in a court of general jurisdiction should contain a recital of the facts upon which it is based. Courts, in considering such acts, unless contrary facts appear affirmatively in the act under consideration, must assume that legislative discretion has been properly exercised. If evidence was required of a fact, it must be supposed that it was before the legislature when the act was passed; and if any special finding was required to warrant the passage of the particular act, it would seem that the passage of the act itself might be held equivalent to such finding."

Miscellaneous matters.

In Conlin v. San Francisco, 99 Cal. 20, 21 In State ex rel. Scanlan v. Archibold, 146 L.R.A. 476, 37 Am. St. Rep. 17, 33 Pac. Wis. 363, 131 N. W. 895, the court, in sus-753, while the appellate court held void as taining the constitutionality of a statute an unconstitutional gift, an act directing a providing certain matters as to the govern- county to pay a claim against it, which act ment of counties above a certain population, stated that the claimant could not obtain and attacked as lacking the degree of uni- compensation in the statutory mode "by reaformity required by the Constitution, said: son of errors, omissions, and irregularities