erty of the decedent, and must accordingly be so imposed as not to offend the constitutional requirements that taxation must be equal and uniform, and must be levied only for public purposes.1 In the Missouri case the court said: "The controlling question is, upon what did it authorize that tax to be levied-upon the property of the deceased person, or upon the right or privilege of his beneficiaries to receive his estate by inheritance or devise? If upon the latter it is settled by the great weight of authority that it does not fall within the regular ordinary taxation upon property which our constitution requires shall be in proportion to value. When it is clear that the tax is upon the succession, it is computed, not upon the aggregate valuation of the whole estate of the decedent considered as the unit for taxation, but on the value of the separate interests into which it is divided by the will, or by the statute laws of the State, and is a charge against each share or interest according to its value, and against the person entitled thereto." Mr. Justice Finch accentuates the necessity of observing this distinction in the phraseology of the statute, in matter of Hoffman.2

During the past year, Congress, as a part of its war revenue bill, has levied a progressive tax upon inheritances. If a progressive tax upon property in general would offend the constitutional requirement of equality and uniformity, and such would seem to be the invariable ruling of the courts wherever the attempt has been made to impose different rates of taxation upon different kinds of property the Federal inheritance tax law is beyond all doubt unconstitutional. It certainly cannot be sustained as a condition to the acquisition of the title to property by in heritance or by will. For, in the division of governmental powers between the United States and the respective States,

1 State v. Mann, 76 Wis. 469; State v. Switzler, 143 Mo. 287; State v. Rassieur, id.

2 143 N. Y. 327, 329.

the regulation of the titles to property is reserved to the respective State governments, and consequently cannot be interfered with by the United States government. The Federal inheritance tax, unlike the State inheritance tax, cannot be described, as the retention by the Federal government of a part of what that government may appropriate entirely for public use, but which it gives by positive laws to the heirs and legatees of the deceased owner. The Federal inheritance tax is a tax, in the constitutional sense, whether it be in terms imposed upon the property of the deceased owner, or upon the right of succession thereto; and, in the levy of the tax, the ordinary constitutional requirements of taxation must be observed, whatever those requirements are construed to be. It is possible that the United States may tax the transfer of inheritances, as it does the transfers of property inter vivos, by requiring revenue stamps to be attached to bills of sale and deeds of conveyance. But the failure of the individual to affix the stamp, or to pay the tax, does not affect his title to the property.

Another probable constitutional objection to the Federal inheritance tax is that it is a direct tax, which is prohibited by the Constitution of the United States, unless it be apportioned among the States according to population. It is true that a similar tax, which was imposed by the Federal government during the Civil War, was held by the Supreme Court of the United States not to be a direct tax" in the constitutional sense.1 But the same court, about the same time, held also that a Federal income tax was not a direct tax. In the light of the recent decisions in the Income Tax cases, it is quite reasonable to expect the Supreme Court of the United States to pronounce the present Fed

3

1 Scholey v. Rew, 23 Wall. 331.

2 Springer v. United States, 102 U. S. 587.

Pollock v. Farmers' Loan & Trust Co., 157 U. S. 427; s. c. 158 U. S.

608.

eral inheritance tax to be unconstitutional, because it is a direct tax; unless the patriotic motive of the tax may unconsciously control the minds of the court and reveal to them a good ground for distinguishing between an income tax and a tax upon inheritances in their classification of direct and indirect taxes.

While this book is going through the press, the Supreme Court of the United States has sustained the constitutionality of the national inheritance tax law. The two points, which were made against the validity of the law in the preceding paragraph, were met and disposed of in the following manner: The court held that a tax upon inheritances was not a direct tax in the constitutional sense, sustaining the prior decision in Scholey v. Rew (supra), and ignoring the analogies to be drawn from their recent decision in the income tax cases. Indeed, the fact that Mr. Justice White, who delivers the opinion in the case, had filed a strong dissenting opinion in the income tax case, might justify the inference that the decision in the inheritance tax case shows some changes of judicial opinion as to what are properly held to be direct taxes.

as was

The more important part of the opinion is that in which the justice declares that, although the tax upon inheritances is a tax in the constitutional sense, contended in the preceding paragraph to be necessarily the case when such a law was enacted by Congress, it need not be equal in rate as to all, to secure uniformity, as the requirement of uniformity in the national constitution had reference only to geographical uniformity; the clause of the constitution declaring that all duties, imposts and excises shall be "uniform throughout the United States."

1 See Knowlton and Buffum, Executors v. Moore, Internal Revenue Collector (1900).

"Considering the text," he continued, "it is apparent that if the word uniform' means equal and uniform' in the sense now asserted by the opponents of the tax, the words throughout the United States' are deprived of all real significance, and sustaining the contention must hence lead to a disregard of the elementary canon of construction, which requires that effect be given to each word of the constitution.

"One of the most satisfactory answers to the argument that the uniformity required by the constitution is the same as the equal and uniform clause which has since been embodied in so many of the State constitutions, results from a review of the practice under the constitution from the beginning. From the very first Congress down to the present date, in laying duties, imposts, and excises, the rule of inherent uniformity, or, in other words, intrinsically equal and uniform taxes, has been disregarded, and the principle of geographical uniformity consistently enforced."

On another point of uniformity he said: "It is yet further asserted that the tax does not fulfill the requirements of geographical uniformity for the following reason: As the primary rate of taxation depends upon the degree of relationship or want of relationship to a deceased person, it is argued that it cannot operate with geographical uniformity, inasmuch as testamentary and intestacy laws may differ in every State.

"It is certain that the same degree of relationship or want of relationship to the deceased, wherever existing, is levied on at the same rate throughout the United States. The tax is hence uniform throughout the United States, despite the fact that different conditions among the States may obtain as to the objects upon which the tax is levied." On the general effect of holding that a progressive tax is not unconstitutional, the justice said:

"As the whole amount of such personal property, as

aforesaid, relates to the sum of each legacy or distributive share considered separately, it follows that all legacies below $10,000 are not taxed and that those above that amount are taxed primarily by the degree of relationship or absence thereof specified in the five classifications contained in the statute and that the rate of tax is progressively increased by the amount of each separate legacy or distributive share. This being the correct interpretation of the statute, it follows that the court below erroneously maintained a contrary construction, and, therefore, the tax assessed and collected was for a larger amount than the sum actually due by law.

"The review which we have made exhibits the fact that taxes imposed with reference to the ability of the person upon whom the burden is placed to bear the same have been levied from the foundation of the government. So also some authoritative thinkers and a number of economic writers contend that a progressive tax is more just and equal than a proportional one. In the absence of constitutional limitation the question whether it is or is not is legislative and not judicial.

"The grave consequences which it is asserted must arise in the future if the right to levy a progressive tax be recognized involves in its ultimate aspect the mere assertion that free and representative government is a failure, and that the grossest abuses of power are foreshadowed unless the courts usurp a purely legislative function. If a case should ever arise where an arbitrary and confiscatory exaction is imposed bearing the guise of a progressive or any other form of tax, it will be time enough to consider whether the judicial power can afford a remedy by applying inherent and fundamental principles for the protection of the individual, even though there be no express authority in the constitution to do so. That the law which we have construed affords no ground for the contention that the tax imposed is arbitrary and confiscatory is obvious."