Opinion of the Court.

any section or part thereof. And in the opinion of the Supreme Court, outside of the matters of estoppel and res judicata before referred to, there is nothing to even suggest that it was requested to consider any question of a title, right, privilege or immunity under the Constitution or laws of the United States. Indeed, while this case has evidently been hotly contested, yet the matters which were subjects of controversy and determination were questions of fact concerning the time, extent and effect of the alleged discoveries of mineral, and also alleged wrongs in respect to the jury. To those matters, and to those alone, was the attention of the parties and the courts directed. Counsel for plaintiff in error has filed an elaborate brief of 249 printed pages, which is able and exhaustive, both on questions of mining law and the conduct of the trial. One cannot, however, fail to be impressed, after a perusal thereof, with the fact of a failure to recognize that there is no general right to a writ. of error from this court to the courts of a State; that there is but a special right, a right to bring such cases, and such cases only, as disclose a Federal question distinctly ruled adversely to the plaintiff in error. We fail to see that any title, right, privilege or immunity of a Federal nature was specially set up and claimed. Very likely the construction and the effect of Federal statutes were, in a general way, discussed and considered, but nowhere do we find that special setting up or claiming of a Federal right which justifies us in taking jurisdiction. As we have stated, the validity of no Federal statute was denied in the state courts. Neither did the plaintiff in error, prior to the judgment of affirmance in the Supreme Court, challenge the validity of any state statute on the ground of its repugnance to paramount Federal law.

The writ of error is

Dismissed.

Argument for Plaintiff in Error.

BLACKSTONE v. MILLER.

ERROR TO THE SURROGATE'S COURT OF NEW YORK COUNTY, STATE OF NEW YORK.

No. 423. Argued January 5, 6, 1903.-Decided January 26, 1903.

Where a deposit made by a citizen of Illinois in a Trust Company in the City of New York remains there fourteen months, the property is delayed within the jurisdiction of New York long enough to justify the finding of the state court that it was not in transitu in such a sense as to withdraw it from the power of the State if it were otherwise taxable, even though the depositor intended to withdraw the funds for investment. Under the laws of New York such deposit is subject to the transfer tax, notwithstanding that the whole succession had been taxed in Illinois, including this deposit.

The fact that two States, dealing each with its own law of succession, both of which have to be invoked by the person claiming rights, have taxed the right which they respectively confer, gives no ground for complaint on constitutional grounds.

Power over the person of the debtor confers jurisdiction, and a State has an equal right to impose a succession tax on debts owed by its citizens as upon tangible assets found within the State at the time of the death. Where a state law imposing a tax upon transfer is in force before the funds come within the State the tax does not impair the obligation of any contract, deny full faith or credit to a judgment taxing the inheritance in another State, or deprive the executrix aud legatees of the decedent of any privilege or immunity as citizens of the taxing State, nor is it contrary to the Fourteenth Amendment.

THE case is stated in the opinion of the court.

Mr. Edward W. Sheldon for plaintiff in error.

I. The debts in question have no tangible situs within the State of New York. They were intangible, unidentifiable and incapable of physical situs, and were not subject to levy or sale, or to be replevied; it was not necessary to take out letters of administration in New York to collect them. Toronto General Trust Co. v. C., B. & Q. Railroad Co., 123 N. Y. 37, 47. The relation between bank and depositor is that of debtor and creditor. Shipman v. Bank, 126 N. Y. 318, 327; United States v. Wardell, 172 U. S. 48, 53; Clason v. City, 46 La. Ann. 1, 5;

Argument for Plaintiff in Error.

Bluefield Banana Co. v. Board of Assessors, 49 La. Ann. 43; New Orleans v. Stempel, 175 U. S. 309, 314; Liverpool, L. & G. Ins. Co. v. Board of Assessors, 51 La. Ann. 1028; Compton National D'Escompte de Paris v. Board of Assessors, 52 La. Ann. 1319, 1329. There is a distinction between trust companies and ordinary banks. People v. Binghamton Trust Co., 139 N. Y. 185, 189; United States Trust Co. v. Brady, 20 Barbour, 119; Jenkins v. Neff, 163 N. Y. 320, 330; 186 U. S. 230, 234; Mercantile National Bank v. New York, 121 U. S. 138, 159.

1. The established principles of taxation prohibit the taxation of intangible property owned by non-residents. McCulloch v. Maryland, 4 Wheat. 316, 429; Railroad Co. v. Jackson, 7 Wall. 262, 267, 268; State Tax on Foreign-held Bonds Case, 15 Wall. 300, 319; Savings Society v. Multnomah Co., 169 U. S. 421; New Orleans v. Stempel, 175 U. S. 309; Bristol v. Washington County, 177 U. S. 133; In re Jefferson, 35 Minnesota, 215; City and County of San Francisco v. Mackey, 22 Fed. Rep. 602, 608; Walker v. Jack, 60 U. S. App. 124, 128; De Vignier v. New Orleans, 4 Woods, 206, 207; Yost v. Lake Erie Transportation Co., 112 Fed. Rep. 746; Kirtland v. Пlotchkiss, 42 Connecticut, 426, 438, affirmed 100 U. S. 491; Balk v. Harris, 124 N. C. 467; Scripps v. Board of Review, 183 Illinois, 278; Haywood v. Board of Review, 189 Illinois, 235; Matzenbaugh v. People, 194 Illinois, 108; Street Railroad Co. v. Morrow, 87 Tennessee, 438; Village of Howell v. Gordon, 127 Michigan, 517; Inhabitants of Ellsworth v. Brown, 53 Maine, 519; Catlin v. Hall, 21 Vermont, 152; Flanders v. Cross, 10 Cushing, 510; State v. Ross, 3 Zabriskie (N. J.), 517; Hopkins v. Baker, 78 Maryland, 363, 370; Mayor, etc., of Mobile v. Baldwin, 57 Alabama, 61; City Council of Augusta v. Dunbar, 57 Georgia, 387; Johnson v. De Bary-Baya Merchants Line, 37 Florida, 499, 519; State v. Smith, 68 Mississippi, 79; Insurance Co. v. Board of Commissioners, 51 La. Ann. 1028; Court v. O'Connor, 65 Texas, 334; Prairie Cattle Co. v. Williamson, 5 Oklahoma, 488; Worthington v. Sebastian, 25 Ohio St. 1, 8; Buck v. Miller, 147 Indiana, 586; City of Louisville v. Shirley, 80 Kentucky, 71; Hutchinson v. Board of Commissioners, 67 Iowa, 183; Finch v. York Co., 19 Nebraska, 50; Sanford v. Town of Spencer, 62 Wiscon

Argument for Plaintiff in Error.

sin, 230; In re Jefferson, 35 Minnesota, 215, 220; Commissioners of Arapahoe County v. Cutter, 3 Colorado, 349; Holland v. Commissioners, 15 Montana, 460; Johnson v. Oregon City, 2 Oregon, 327; Walla Walla v. Moore, 16 Washington, 339; Estate of Fair, 128 California, 607; Barnes v. Woodbury, 17 Nevada, 383; Tax Law of New York of 1896, § 2, subd. 5; Cooley on Taxation (2d ed.), pp. 21, 22; Rorer on Interstate Law, p. 281; Judson on Taxation (1903), $ 397, p. 507.

2. These principles have been embodied in the New York statutory scheme. New York Tax Law, ch. 908 of the Laws of 1896, art. I, §§ 1-14, entitled "Taxable Property and Place of Taxation" is applicable to the entire law. Matter of Huntington, 168 N. Y. 399. The phrase, "property within the State," used in § 220 is as old as New York's taxing system and has been frequently construed to exclude intangible property of non-residents. People ex rel. Lemmon v. Feitner, 167 N. Y. 1; Matter of Hellman, Appellate Division, First Department, 1902; Matter of King, 30 Misc. N. Y. 575. A non-resident is entitled to the same exemptions as a resident and the taxation of non-residents is purely in rem. People v. Barker, 154 N. Y. 128; City of New York v. McLean, 170 N. Y. 374, 387; Dewey v. Des Moines, 173 U. S. 193, 203; Bristol v. Washington County, 177 U. S. 133; People v. Equitable Trust Co., 96 N. Y. 387; Matter of Enston, 113 N. Y. 174, and cases therein cited.

3. These principles apply with equal force to transfer or succession taxes; jurisdiction of the person of the decedent or of his property must exist. Kintzing v. Hutchinson, 14 Fed. Cas. 644; Matter of Bronson, 150 N. Y. 1; Matter of Preston, 75 App. Div. 250; Matter of Phipps, 77 Hun, 325, affirmed 143 N. Y. 641; Matter of Chabot, 44 App. Div. 340; 167 N. Y. 280 ; Matter of Abbett, 29 Misc. N. Y. 567; Coleman's Estate, 159 Pa. St. 231; Matter of Sutton, 3 App. Div. 208; Callahan v. Woodbridge, 171 Massachusetts, 595.

4. The few decisions where money in bank has been subjected to a transfer tax are distinguishable from the present case. Matter of Houdayer, 150 N. Y. 37. The authority for the decision of the Court of Appeals in this case cited and distinguished. That was a bank deposit although deposited in a trust

Argument for Plaintiff in Error.

company. In this case the deposit was not virtually money and could not be converted into money on demand. Substitutes for money are not to be deemed money for taxation unless they are exact equivalents. Hubbard v. N. Y. & H. R. R., 14 Abb. Pr. 275; United States v. Wilson, 106 U. S. 620; then citing and distinguishing Matter of Romaine, 127 N. Y. 80; Matter of Morejon, N. Y. Law Journal, July 3, 1891; Matter of Simoni, N. Y. Law Journal, January 20, 1896; Estate of Spears, 6 Ohio Decisions, 598; Matter of Burr, 16 Misc. N. Y. 89; balances held not to be cash in Matter of Bentley, 31 Misc. N. Y. 656; Matter of Horn, N. Y. Law Journal, October 31, 1902.

II. If the indebtedness of the Trust Company was property within the State of New York, it was not taxable because it was only transitorily there, and in the case of property of nonresidents in transitu the requisite jurisdiction to tax does not exist. Hays v. Pacific Mail S. S. Co., 17 How. 596; People, etc., v. Commissioners, 23 N. Y. 242; People ex rel. Hoyt v. Commissioners, 23 N. Y. 224, 240; 24 Am. & Eng. Ency. of Law, 435; 25 Am. & Eng. Ency. of Law, 142; Rorer on Interstate Law, 281; Metropolitan Life Ins. Co. v. Newark, 02 N. J. Law, 74; Ierron v. Keeran, 59 Indiana, 472; Standard Oil Co. v. Bachelor, 89 Indiana, 1; Coe v. Errol, 116 U. S. 517, affirming 62 New Hampshire, 303; Corning v. Township of Masonville, 74 Michigan, 177; State v. Engel, 34 N. J. Law, 425; State v. Carrigan, 39 N. J. Law, 35; Commonwealth v. Am. Dredging Co., 122 Pa. St. 386; Matter of Leopold, 35 Misc. N. Y. 370; State Trust Co. v. Chehalis County, 48 U. S. App. 190. The burden is on the taxing authorities to establish the jurisdictional conditions. Corn v. Cameron, 19 Mo. App. 573; Mc Lean v. Jephson, 123 N. Y. 142, 151.

III. A construction of the statute which permits double taxation should be avoided. 2 Cook on Corp. § 567; Tennessee v. Whitworth, 117 U. S. 129; People ex rel. Savings Bank v. Coleman, 135 N. Y. 231; People ex rel.. Hoyt v. Commissioners 23 N. Y. 224; Matter of Dingham, 66 App. Div. 228; 3 N. Y. Revised Statutes, Birdseye's 3d ed. p. 3526, subd. 5; People ex rel. Darrow v. Coleman, 119 N. Y. 137; Matter of