the conveyance of estates are unconstitutional, as far as they affect conveyances already made.1

The various and, in this country, universal registration laws, which require a deed to be recorded in the public record books of the county, in which the land lies, are apt illustrations of the power of the State to regulate, while they cannot take away, the right to transfer the title to lands. So far as I know, the power of the State to require registration of a deed of conveyance, in order that it be valid and operative against subsequent purchasers, has never been questioned.

The so-called Torrens registration law has been declared to be unconstitutional by the courts of Illinois and Ohio; the Illinois statute being objectionable because the law provided for the determination by the registrar of the disputed claims of title; and this feature of the law was alone held to be unconstitutional, because it involved an unwarrantable encroachment by an administrative officer upon the power of the judiciary.

When the original Illinois act was declared unconstitutional, for the reason just stated, the act was amended by the legislature so as to provide for initial proceedings in chancery; and left it optional with each county to determine whether it should adopt the new system of registration. Cook County, in which the city of Chicago is situated, adopted it, and the Supreme Court of Illinois declared the act, as amended, to be constitutional. In Ohio, the Torrens system was adopted, making the initial proceeding for settling disputed claims of title an action in personam, without providing for personal service, for which reason the act was declared to be unconstitutional. Massachusetts adopted the

1 Greenough v. Greenough, 11 Pa. St. 489; Reiser v. Tell Association, 89 Pa. St. 137; James v. Rowland, 42 Md. 462.

2 People v. Chase, 165 Ill. 527.

People v. Simon, 176 Ill. 165.

4 State v. Guilbert, 56 Ohio St. 575.

system next; and, to avoid the constitutional requirement of personal service upon all parties claimant, the statute provided for an action in rem before a Court of Registration which was specially created to entertain such suits. The act has been recently sustained in an able opinion by Chief Justice Holmes.1

A Michigan statute requires, as a condition precedent to the registration of a deed, that the party offering it must present along with it a certificate from the auditor-general or county treasurer, declaring that the taxes for the five preceding years have been paid, and setting forth all tax liens and titles which may be held against the land conveyed. The constitutionality of the statute was attacked unsuccessfully.2

§ 137a. The right of testamentary alienation and intestate succession - - Taxation of inheritances. But the vested right of alienation, which the land owner acquires as a natural incident of his property, rests upon the natural power, in the absence of lawful restrictions, to give away or sell what belongs to him. The natural right can only exist as long as his natural dominion over the property lasts, viz. during his life. His natural dominion over his property terminates with his death. He may sell or give away, as he pleases, as long as he does not violate the rights of creditors, up to the last moment of his life, and his right of alienation inter vivos cannot be taken away by statute; but after death he ceases to exercise a natural dominion over his property, and if he has any power of disposition after death, it must rest upon positive law, and must change or disappear with the modification or repeal of the law. It is therefore held that no one has a vested right to dispose of lands by will, in accordance with the laws in force when he acquired them. His right to devise

1 Tyler v. Court of Registration (Mass. 1900), 55 N. E. 812. 2 Van Husen v. Heames, 96 Mich. 504.

depends upon the laws in existence at his death. The new statute may be made to apply to future purchasers of lands, and not to present owners, but it will apply to the latter, if they are not expressly excluded from the operation of the statute.1

It has recently been declared by the Supreme Court of Illinois that there is no constitutional limitation of the power of the State to change the law of descent as to alien heirs, except so far as the rights of such heirs to American inheritances have been safe-guarded by treaty between their home governments and the United States."

If it be an accepted doctrine of American constitutional law that there is no natural and inalienable right in any one, either to dispose of his own property by will, or to take property from another by inheritance, then it matters not how far a legislature may depart from natural instinct in ignoring or restricting the moral claims of near relatives to the inheritance of the property of the deceased owner, the constitution cannot be successfully appealed to for protection. The right of succession to the estate of a dead man, even though he be one's father, is a privilege resting upon positive law, which cannot be demanded as a constitutional right, and which the legislature may regulate or take away altogether in the exercise of its wise or unwise discretion. Of course, unless public opinion

1 "A party who acquires property does not acquire with it the right to devise such property according to the law as it exists at the time he acquires it. Wills and testaments, rights of inheritance and succession, are all of them creatures of the civil or municipal law, and the law relating to or regulating any of them may be changed at the will of the legislature. But no change in the law made after the death of the testator or intestate will affect rights which became vested in the devisee, heir or representative by such death." Sturgis v. Ewing, 18 Ill. 176. See Emmert v. Hays, 89 Ill. 11. Hughes v. Murdock, 45 La. Ann. 935; Vna Aken v. Clark, 82 Iowa, 256. See post, § 165, where the subject is again mentioned in connection with the discussion of the police regulation of personal property.

2 Wunderle v. Wunderle, 144 Ill. 40.

should adopt the principles of communism, which is extremely improbable, there is no likelihood of any fundamental change in the underlying principle of the laws of succession. So far as it is possible for one to see into the future, the total abolition of the right of inheritance will never be seriously proposed to the legislature of a civilized State. There is but one likely method of curtailing or restricting the enjoyment of this privilege; and that is by the heavy increase in the taxation of inheritances.

The effort has been made in a great number of cases to prove the unconstitutionality of these inheritance tax laws, by holding that, being taxation, the tax must be so imposed as to satisfy the constitutional requirement of equality and uniformity. As is well known, all American constitutions contain the requirement that taxation shall be equal and uniform.

Where the taxation of inheritances is based upon a uniform rate per centum of the assessed value of the estate of the decedent; and all estates are taxed at the same rate, whether the estate be large or small, or the beneficiaries be closely or remotely related to the decedent, or not related at all, it does not much matter whether you consider the inheritance or succession tax as a tax in the constitutional sense, which is required to be equal and uniform, or as a regulation of the right or privilege of inheritIn either case the tax is valid and does not conflict with any constitutional principle. For, as Mr. Justice Earl said in In re McPherson, as long as the tax is equal and uniform the State has the undoubted power to tax anything that has value; property of all kinds, franchises of corporations and individuals, businesses and contracts of all kinds, the right of suffrage, and all other rights and privileges, it matters not what their nature may be; the sole restriction being, that there must be equality and uniformity

ance.

1 104 N. Y. 318.

in the imposition of the particular tax upon all who come within that particular classification."

But where the inheritance or succession tax is levied upon estates of a certain value and over, and others of less value are exempted, or where a higher rate per centum is levied upon the same amount of property, when the beneficiaries are collateral heirs or strangers, than when they are direct heirs, it would seem to be an irresistible conclusion that such a tax upon inheritances, if it be properly considered as a tax in the constitutional sense, is unconstitutional, because it does not comply with the constitutional requirement of equality and uniformity, as that constitutional provision is generally construed. And we should not be surprised to learn that such an inheritance tax has been declared to be unconstitutional. With equal or greater force could the constitutional objection be applied to a progressive inheritance tax, the rate per centum varying according to the value of the inheritance. In Curry v. Spencer, the New Hampshire inheritance tax law was declared to be unconstitutional, because the tax was imposed upon collateral relatives and not upon direct heirs. The court said: "It is plainly founded upon pure inequality, and is simply extortion in the name of taxation; and it can, therefore, never be maintained in this jurisdiction so long as equality and justice continue to be the basis of constitutional taxation."

The Ohio statute provided for the exemption of estates under $2,000 and an increase of the per centum of the tax as the value of the estate increased. The act was declared to be in violation of the constitutional requirement of equality, and, therefore, void. Said the court: "This statute fails to protect equally the people who exercise the right and privilege of receiving or succeeding to property. The exemption must be equally for all, and the