mus.

Bradley, as the organ of the court, said: "In would inevitably result, and "produce such either case, if the officer plead the authority collision in the administration of public afof an unconstitutional law for the nonper- fairs as to materially impede the proper and formance or violation of his duty, it will not necessary operations of government." "It prevent the issuing of the writ" of manda- was surely never intended that an executive In Huntington v. Worthen, 120 U. S. functionary should nullify a law by neglect97, 30 L. ed. 588, 7 Sup. Ct. Rep. 469, the au- ing or refusing to execute it." The result thority of the board of railroad commission- of this conclusion is that the respondents are ers to raise the question of the unconstitu- without right to urge the unconstitutionaltionality of the law was not mooted or dis- ity of the concurrent resolution which is incussed. The court said: "An unconstitu- volved. tional act is not a law, it binds no one, and 2. With regard to the second question protects no one. Here the conflict between which is presented by the return, whether, the Constitution and the statute was ob- in point of fact, the concurrent resolution of vious, and the board had the advice of the 1894 was not an act of appropriation in dishighest legal officer of the state, and his con- guise, enacted without observance of the struction was sustained by the judgment forms of law, and therefore absolutely void of the supreme court of the state." This and without legal effect, we are of opinion was an exceptional situation. Norton v. that it rests upon a different footing. The Shelby County, 118 U. S. 425, 30 L. ed. 178, auditor is in duty bound to exercise proper 6 Sup. Ct. Rep. 1121, was an ordinary com- watchfulness and care in the performance of mon-law action of debt, and the question of his arduous and responsible duties. In dealthe constitutionality of a law was directly ing with legislative appropriations he must involved as a part of the case. Poindexter necessarily examine the laws making the v. Greenhow, 114 U. S. 270, 29 L. ed. 185, 5 same, and should his judgment suggest that Sup. Ct. Rep. 903, 962, was an action for the any act was wholly irregular, it would be recovery of personal property, and the con- his duty to pause in issuing his warrants stitutionality of the law was properly in is- thereunder until its validity has been judiIn Sessums v. Botts, 34 Tex. 335, it cially ascertained. This is a part of his ofwas held that, from the date of the enact- ficial duty, and this court will assume that ment of a law until it was adjudged uncon- he has acted with due circumspection, and stitutional by that court, it had the force not arbitrarily or captiously. Looking and effect of law, so far as to protect minis-into the facts which we have detailed supra, terial officers in obeying its mandates; and we find that his contention is not well that it is advisable for all good citizens to grounded; for, inter alios, it was admitted obey whatever the lawmaking power shall promulgate as law until it shall be adjudicated by the judicial tribunals not to be law.

sue.

of relators, and the concurrent resolution was the means adopted for that purpose. In Fisher v. Steele, 39 La. Ann. 447, 1 So. 882, it was held that any balance remaining to the credit of one or more of the separate funds created by law, after the satisfaction of all the warrants drawn against the same, is the property of the state, with full power in the legislature to apply the same to any lawful purpose under the Constitution. In our opinion that decision is correct, and it is conclusively against respondents' contention.

by the attorney general that there is money enough in the interest fund of 1889 to cover the amounts. claimed by the relators. Hence the funds under consideration had been alWe have not only gone over all of the fore- ready appropriated, long prior to the pas going cases, and examined them with care, sage of the joint resolution of 1894, and the but we have likewise examined a great many general assembly merely dealt with an existothers. Those not cited were found, in our ing surplus of the money which had been thereopinion, inapplicable to the present contro-tofore dedicated to the interest fund. In this versy, because only private rights were liti- light, the legislative purpose and object were gated between individuals, and the constitu- to make this surplus applicable to the claims tional questions were properly raised and decided. In mandamus proceedings against a public officer, involving the performance of official duty, nothing can be inquired into but the question of duty on the face of the statute and the ministerial character of the duty he is charged to perform. After careful investigation of the authorities, we feel fully confirmed in the correctness of the conclusions we arrived at in State exc rel. Nicholls v. Shakespeare, and other cases, to the effect that executive officers of the state government have no authority to decline the 3. In view of the authorities we have cited performance of purely ministerial duties and the opinion we entertain of the right of which are imposed upon them by a law, on the respondents to raise the question of the the ground that it contravenes the Constitu- constitutionality of the law, it is needless tion. Laws are presumed to be, and must for us to examine the question of the suffibe treated and acted upon by subordinate ciency of the evidence on which the legisla executive functionaries as, constitutional ture acted; for we believe it to be obligatory and legal, until their unconstitutionality or upon us to coerce the respondents to perform illegality has been judicially established; the ministerial function imposed by the confor in a well-regulated government obedience current resolution upon them, respectively, to its laws by executive officers is absolutely and leave the evidence upon which they acted essential and of paramount importance. Were without comment, and the constitutionality it not so, the most inextricable confusion of the law to future determination. In so

far as concerns the question of the unex- relators' claims. Whether the board of pended balance resulting from the general liquidation has any prior or better claim appropriation of 1888, having been dedicated thereto than the relators does not appear to the board of liquidation for the purpose from the evidence. At all events, the board of purchasing outstanding consolidated of liquidation has not been made a party, bonds, and consequently beyond the control and its rights cannot be determined here, and of the general assembly at the time of the they will not, of course, be interfered with passage of the concurrent resolution, it is by our decree. sufficient to say that we must act on the evidence in this record, and it shows, by the respondents' admissions, that there is sufficient money in the interest fund of 1889, ap- | propriated by said resolution, to cover the of counsel for the relators.

The judgment of the court below was in favor of the relators, and it is affirmed.

Miller, J., recuses himself, having been

MINNESOTA SUPREME COURT.

Lincoln DREW, Appt.,

V.

M. C. TIFFT, Probate Judge of McLeod 594; State ex rel. Garth v. Switzler, 143 Mo.

2. Chapter 293, Laws 1897, which attempts to lay an inheritance tax, is unconstitutional for the reasons: (a) It excludes from its operation real property, and lays the tax upon inheritances of personal property alone; (b) it exempts from its operation persons and corporations whose property is exempt by law from taxation; (c) it allows a larger exemption to lineal heirs than to collaterals, and does not lay the tax on the excess of the value of the property received above a uniform exempted sum.

3.

The statute is not unconstitutional

because it taxes collateral heirs and distrib

utees at a higher rate than lineals, for the Constitution expressly authorizes such graduation of the tax.

(February 14, 1900.)

APPEAL, by petitioner from an order of the District Court for McLeod County refusing a writ of mandamus to compel respondent to proceed with the distribution of the estate of George Drew, deceased. Reversed.

The facts are stated in the opinion.

Messrs. Haynes & Chase, for appellant: The burden sought to be imposed by this law is a tax within the meaning of § 1, art. 9, of our state Constitution.

That such a law is one imposing taxes is not open "to question."

Headnotes by START, Ch. J.

NOTE. As to the constitutionality of an inheritance tax, see also State ex rel. Davidson v. Gorman (Minn.) 2 L. R. A. 701; Wallace v. Myers (C. C. S. D. N. Y.) 4 L. R. A. 171, and note; State v. Hamlin (Me.) 25 L. R. A. 632; Minot v. Winthrop (Mass.) 26 L. R. A. 259; State v. Alston (Tenn.) 28 L. R. A. 178; State

Magoun v. Illinois Trust & Sav. Bank, 170 U. S. 301, 42 L. ed. 1045, 18 Sup. Ct. Rep. 315, 40 L. R. A. 280, 45 S. W. 245; St. Louis v. Spiegel, 75 Mo. 145; Cooley, Taxn. p. 573; Stinson v. Smith, 8 Minn. 366, Gil. 331; Sanborn v. Rice County Comrs. 9 Minn. 273, Gil. 260; State ex rel. Davidson v. Gorman, 40 Minn. 235, 2 L. R. A. 701, 41 N. W. 948.

Our Constitution necessarily and clearly embraces all kinds of taxes without distinction or exception.

The term "all taxes" must be interpreted to mean precisely what it expresses and what everybody understands it to mean.

Cases in other states, sustaining inheritance tax statutes, went off on the point that such a tax could not be deemed a property tax, but rather a tax on the right or privilege of succeeding to and receiving the property of a decedent.

Said tax must be equally imposed.

Eyre v. Jacob, 14 Gratt. 436, 73 Am. Dec. L. R. A. 259, 38 N. E. 512; Re Sherwell, 125 367 Minot v. Winthrop, 162 Mass. 116, 26 N. Y. 379, 26 N. E. 464; Noonan v. Stillwater, 33 Minn. 201, 53 Am. Rep. 23, 22 N. W. 444; State ex rel. Merrick v. Hennepin County Dist. Ct. 33 Minn. 245, 22 N. W. 625, 632; State ex rel. Burger v. Ramsey County Dist. Ct. 33 Minn. 306, 23 N. W. 222; Curry v. Spencer, 61 N. H. 630, 60 Am. Rep. 337; State ex rel. Garth v. Switzler, 143 Mo. 331, 40 L. R. A. 280, 45 S. W. 245; State ex rel. Schwartz v. Ferris, 53 Ohio St. 336, 30 L. R. A. 218, 41 N. E. 579; Magoun v. Illinois Trust & Sav. Bank, 170 U. S. 292, 42 L. ed. 1042, 18 Sup. Ct. Rep. 594; St. Louis v. Spiegel, 75 Mo. 146; Nichols v. Walter, 37 Minn. 272, 33 N. W. 800.

Messrs. F. R. Allen and W. B. Douglas, Attorney General, for respondent:

By an unbroken line of adjudications in the courts of last resort of many of the states, as well as in the Supreme Court of the United er rel. Schwartz v. Ferris (Ohio) 30 L. R. A. 218 State ex rel. Gelsthorpe v. Furnell (Mont.) 39 L. R. A. 170; State er rel. Garth v. Switzler (Mo.) 40 L. R. A. 280; Kochersperger v. Drake (I.) 41 L. R. A. 446: Re Cope (Pa.) 45 L. R. A. 316.

whether on property or in the form of excise and impost taxes, must, under this constitutional mandate, be laid as nearly equal as practicable. The case of State ex rel. Davidson v. Gorman has been understood and cited as an authority that the requirement of our Constitution that all taxes to be raised in this state shall be as nearly equal as may be applies to excise and impost taxes, and therefore a statute laying an inheritance tax would be unconstitutional. See Magoun v. Illinois Trust & Sav. Bank, 170 U. S. 283, 42 L. ed. 1037, 18 Sup. Ct. Rep. 594. In the Gorman Case it was held that chapter 103, Gen. Laws 1885, requiring, as a condition precedent to probate proceedings for the settlement of estates in probate court, the payment to the county treasury of specified sums arbitrarily prescribed with reference to the value of the estate, was unconstitutional, because it violated the constitutional requirement of equality of taxation. It is not quite clear whether this decision was based upon the proposition that the tax was one laid upon property or upon the privilege of having estates settled and distributed in the probate court. If the former, which was probably the case.-the decision is not an authority for or against the right of the legislature to levy an inheritance tax under § 1, art. 9, of the Constitution. If the word "taxes," as used in this section as it originally stood, includes excise and impost taxes, it by no means follows that a statute laying an inheritance tax, which aimed at practical equality, would not be valid.

tions of our state Constitution. Such being | directly to the conclusion that all taxes, the case, it necessarily follows that the large number of judicial decisions in other jurisdictions, cited by counsel in this case, although interesting and helpful as illustrating the history of inheritance tax statutes and the general principles upon which they have been sustained, are not directly in point. The here material provisions of our Constitution are these: "All taxes to be raised in this state shall be as nearly equal as may be, and all property on which taxes are to be levied shall have a cash valuation, | and be equalized and uniform throughout the state: provided, that the legislature may, by general law or special act authorize municipal corporations to levy assessments for local improvements and provided further, that there may be by law levied and collected a tax upon all inheritances, devises, bequests, legacies, and gifts of every kind and description above a fixed and specified sum, of any and all natural persons and corporations. Such tax above such exempted sum may be uniform, or it may be graded or progressive, but shall not exceed a maximum tax of five per cent." Minn. Const. art. 9, § 1. This proviso as to an inheritance tax was added in 1894 as an amendment to § 1, art. 9, and is to be construed as a part thereof, precisely as if the original section and the proviso had been adopted at the same time, as a complete statement of the fundamental law upon the subject of taxes, including those upon inheritances. In order to determine intelligently whether the inheritance tax act of 1897 violates any of the provisions of this section, it is first necessary to ascertain its meaning. The power of taxation by the state, except as limited by constitutional provisions, is practically unlimited, hence this section must be construed, not as a grant of the power of taxation, but as a limitation upon the exercise of the power. Cooley, Const. Lim. 105, 593. So construing it, its meaning is obvious, and it stands as a barrier against legislative invasion of the reserved rights of the individual as to the manner of imposing taxes upon him for the support of the state. Its keynote is that "all taxes to be raised in this state shall be as nearly equal as may be." Counsel for re-license law was enacted with a view to revspondent however claims that this limitation, as originally adopted, applies only to taxes on property. If this be so, then the power of the legislature to lay unequal and arbitrary impost and excise taxes was left unrestricted. Such a construction is contrary to the spirit of the Constitution, its clear and direct language, and the trend of all of the decisions of this court on the question. Stinson v. Smith, 8 Minn. 366, Gil. 326; Sanborn v. Rice County Comrs. 9 Minn. 273, Gil. 258; Faribault v. Misener, 20 Minn. 396, Gil. 347; Noonan v. Stillwater, 33 Minn. 198, 53 Am. Rep. 23, 22 N. W. 444; State ex rcl. Davidson v. Gorman, 40 Minn. 232, 2 L. R. A. 701, 41 N. W. 948. It is true that all of these cases involved only questions as to taxes or assessments on property, but the rationale of the opinion in each case leads

Again, the decisions of this court with reference to statutes and ordinances imposing license fees upon auctioneers, draymen, hacknien, peddlers, persons dealing in intoxicating liquors, and others engaged in occupations of a character bringing them within the police power of the state, are based upon the proposition that the constitutional mandate that all taxes to be raised must be as nearly equal as may be includes excise and impost taxes. Such statutes have been sustained only upon the ground that the enactment was a proper exercise of the police power, and in every case where it was apparent that the

enue, and not as a police regulation, it has
been held void, when the constitutional re-
quirement of equality of taxation was disre-
garded. Rochester v. Upman, 19 Minn. 108,
Gil. 78; State v. Cassidy, 22 Minn. 312, 21
Am. Rep. 765: Mankato v. Fowler, 32 Minn.
364, 20 N. W. 361; Duluth v. Marsh, 71
Minn. 24S, 73 N. W. 962; State v. Finch
(Minn.) 46 L. R. A. 437, 80 N. W. 856. If,
however, there is any doubt as to the propo-
sition that under the original provisions of
§ 1, art. 9, of the Constitution, any statute
laying an inheritance tax which ignored the
fundamental principle of equality of taxa-
tion would have been invalid, the doubt is set
at rest by the proviso to the section adopted
as an amendment thereto in 1894.
essary effect of this proviso was to subject
the power of the legislature to lay an inher-

The nec

5 per cent, as the value of the property to be received increases, or as the relationship to the deceased of those who are to receive the property is more remote.

We come now to the question whether the inheritance tax law of 1897 violates any of the provisions of § 1, art. 9, of the Constitution, as we have construed it. The title of the statute is "An Act for a Tax on Gifts, Inheritances, Devises, Bequests, and Legacies in Certain Cases," and its here material provisions are these:

Such

tax shall be at the rate of five (5) per centum upon the clear market value of such property, except as otherwise prescribed in the next section.

itance tax to the original limitation that all | proviso is a distinct departure from the rule taxes to be raised in this state must be as of equality, as near as may be, in the laying nearly equal as may be, for, as already sug- of taxes, for it expressly provides that the gested, the section in question, as it now tax may be graded or progressive. This aureads, must be construed precisely as if the torizes the legislature, in its discretion, to proviso had been a part of the original sec-graduate the tax by increasing the percenttion; hence the mandate of equality quali-age of the tax, within the maximum limit of fies the provisions of the amendment, and applies to the whole section. Noonan v. Still water, 33 Minn. 198, 53 Am. Rep. 23, 22 N. W. 444. We therefore hold that by virtue of 1, art. 9, of our state Constitution, as it now stands, the requirement of equality in taxation applies to inheritance taxes exactly as it does to taxes on property, except as expressly provided in the last proviso thereto. In reaching this conclusion we have not overlooked the fact that it is contrary to the great weight of authority in other states. But our Constitution in this particular is "Sec. 1. A tax shall be, and is hereby imunique, and its mandate so clearly expressed posed upon the transfer of any personal as to leave no doubt as to its meaning; hence property of the value of five thousand (5,the decisions of the courts of other states 000) dollars or over, or of any interest thereare not in point. Now, it is apparent from in or income therefrom in trust or otherwise, the mere reading of the proviso as to an in- to persons or corporations, not exempt by heritance tax in connection with the require- law from taxation, on real or personal propment of equality of taxation that any stat-erty in the following cases: ute providing for an inheritance tax must lay the tax upon "all inheritances, devises, bequests, legacies, and gifts of every kind and description," including those of real property as well as personal. There can be no discrimination in this respect. Therefore any statute laying a tax upon all bequests and gifts of personal property and exempting inheritances, devises, and gifts of real property would be void, for the reason that it would violate the constitutional mandate of equality of taxation, and the limitations of the proviso, which declares, in legal effect, that, if the legislature decides to lay an inheritance tax, it must be upon all bequests, devises, and gifts, without exempting any. It is equally clear, and for the same reason, that such a statute must lay the tax upon all bequests, devises, and gifts to "any and all natural persons and corporations." If any person or corporation is exempted from the burden, the statute is void. It might be otherwise if the tax were one on property, and not on the privilege of receiving the property. Again, the amendment provides that the tax may be laid upon all devises, bequests, and gifts "above a fixed and specified sum," and that "such tax above such exempted sum may be uniform or it may be graded or progressive, but shall not exceed a maximum tax of five per cent." These particular provisions are exceptions to the rule of equality in taxation, and enforced by the general terms of the section. They authorize the exemption of devises, bequests, and gifts, to the extent of a fixed and uniform sum, from the operation of the tax, and the laying of the tax only upon the excess of such devises, bequests, and gifts. The exemption, however, must be uniform, and apply equally to all persons and corporations, for it is only the tax above a fixed and specified sum which may be uniform, graded, or progressive, in the discretion of the legislature. This last

"Sec 2. When the property or any beneficial interest therein passes by any such transfer to or for the use of father, mother, husband, wife, child, brother, sister, wife or widow of a son, or the husband of a daughter, or any children adopted as such, in conformity with the laws of this state, of the decedent, grantor, donor, or vendor, or to any person to whom any such decedent, grantor, donor, or vendor for not less than ten (10) years prior to such transfer, stood in the mutually acknowledged relation of a parent, or to any lineal descendant of such decedent, grantor, donor, or vendor, born in lawful wedlock, such transfer of property shall not be taxable under this act, unless it is personal property of the value of ten thousand (10,000) dollars or more, in which case it shall be taxable under this act at the rate of one (1) per centum upon the clear market value of such property."

It may be conceded, as claimed by counsel for respondent, that the tax attempted to be levied by this statute is not upon the property received by the beneficiary, but upon the privilege of receiving it. The statute, however, wag enacted, by virtue of the legislative power of taxation, solely with a view to revenue, and the burden it seeks to impose is a tax within the meaning of the Constitution. The first objection to the statute to be considered is the claim that, in so far as it attempts to tax lineal heirs (we use the term to designate the class referred to in the statute) and distributees at the rate of 1 per cent of the value of the property and collateral (that is, those not expressly named in the statute) at a higher rate (5 per cent) it is unequal taxation, and therefore unconsti tutional. There is a natural reason for tax