Dissenting Opinion: Brewer, J.

words, the actual tax to be paid does not increase simply as the legacy increases, which would be the rule of equality, but the rate of taxation is also increased as the amount of the legacy passes from one sum to another. Upon a legacy over fifty thousand dollars it is six per cent, while upon one under ten thousand dollars it is only three per cent.

It seems to be conceded that if this were a tax upon property such increase in the rate of taxation could not be sustained, but being a tax upon the succession it is held that a different rule prevails. The argument is that because the State may regulate inheritances and the extent of testamentary disposition it may impose thereon any burdens, including therein taxes, and impose them in any manner it chooses. There are doubtless some matters over which the State has purely arbitrary power. For instance, it is under no obligations to grant any charters, and the legislature may undoubtedly in giving a charter to one set of persons impose one series of burdens, and in granting a similar charter to another set may impose entirely different burdens. But these are cases of mere gratuities, mere favors and privileges, and any donor of such may add to them the burdens he pleases. But I do not understand that legacies and inheritances stand upon the same footing. True, the State may regulate, but it has no arbitrary power in the matter. The property of a decedent does not at his death become the property of the State, nor subject to its disposal according to any mere whim or fancy. And yet if it is a purely arbitrary power I do not see what constitutional objection could be raised to any disposition which a legislature might make of the property of any decedent. Take the illustration made by counsel for appellant Could the legislature of Illinois, which passed this statute, constitutionally enact that the estate of every person dying within the limits of the State should be given to the members of that legislature? Or, if the matter of personal benefit be interposed as against the validity of such legislation, could it enact that the property of A, on his death, should pass to the State; the property of B to some religious or charitable institution; and the property of C be divided

Opinion of the Court.

among his children? Can there be a doubt that such inequality of legislation would vitiate it? But whatever may be the power of the legislature, Illinois had regulated the matter of descents and distributions and had granted the right of testamentary disposition. And now by this statute upon property passing in accordance with its statutes a tax is imposed; a tax unequal because not proportioned to the amount of the estate; unequal because based upon a classification purely arbitrary, to wit, that of wealth- a tax directly and intentionally made unequal. I think the Constitution of the United States forbids such inequality.

DRAKE V. KOCHERSPERGER.

State of Illinois. No. 425.

Error to the Supreme Court of the

MR. JUSTICE MCKENNA: The judgment of the Supreme Court of the State was not final, and the writ of error must be

Dismissed.

SAWYER v. KocherspergeR. Error to the Circuit Court of the United States for the District of Illinois. No. 463.

MR. JUSTICE MCKENNA: This was a petition by Kochersperger, as county treasurer and collector of Cook County, Illinois, filed in the County Court of that county, against Elizabeth E. Sawyer and others seeking the collection of certain taxes. The case was removed into the Circuit Court of the United States, but improvidently, as it falls within the rule laid down in Tennessee v. Banks, 152 U. S. 454, notwithstanding the petition stated that defendants declined to pay on the ground that the law imposing the taxes was in violation of the Constitution of the United States.

Decree reversed, and cause remanded to the Circuit Court with a direction to remand the case to the County Court of Cook County, the costs of this court and of the Circuit Court to be paid by plaintiffs in error.

These two cases were argued with No. 464.

Statement of the Case.

WILLIAMS, TREASURER, v. EGGLESTON.1

ERROR TO THE SUPREME COURT OF ERRORS OF THE STATE OF CONNECTICUT.

No. 210. Argued April 19, 20, 1898. Decided May 2, 1898.

The legislation of the State of Connecticut whereby the franchise and property of a company which had constructed and was maintaining a toll bridge across the Connecticut at Hartford were condemned for public use, and the cost was apportioned between the State and the town of Glastonbury and four other municipal corporations in proportions determined by the statutes, and the proceedings had under this and subsequent legislation set forth in the statement of the case and the opinion of the court, did not violate any provisions of the Federal Constitution.

FOR three quarters of a century prior to 1887 the Hartford Bridge Company had under a charter from the State, (Priv. Laws Conn. vol. 1, p. 254, Resolve of October, 1808), maintained a toll bridge over the Connecticut River at the city of Hartford. It also maintained on the east side of the bridge and connected therewith a causeway across the lowlands adjacent to the river.

On May 19, 1887, the legislature of the State passed an act making said bridge and causeway a free public highway, and providing for the condemnation of the franchise and other property of the bridge company. (Pub. Acts Conn. 1887, chap. 126, p. 746.) Proceedings were directed to be instituted in the Superior Court of the county of Hartford for ascertaining the value of the property, determining the towns benefited by the establishment of the public highways, and apportioning the assessed damages. In this proceeding the damages assessed to the bridge company were $210,000, and apportioned between five towns, as follows: To the town of Hartford, ninety-five two hundred and tenths; East Hartford, sixty-six two hundred and tenths; Glastonbury, twenty-five two hundred and tenths, and the towns of South Windsor and Manchester each twelve two hundred and tenths.

1 This case, as reported in the Connecticut Reports, was entitled Morgan G. Bulkeley et al. v. Samuel H. Williams, Treasurer.

Statement of the Case.

The State, however, appropriated out of its treasury 40 per cent of the entire amount, to wit, $84,000, leaving the balance to be paid by these several towns, and such sums were paid. The act also provided that this public highway should thereafter be maintained by the towns assessed in proportion to their assessments, and that the first selectman of each of said towns should become ex officio member of a board, constituted a body politic and corporate, and charged with this duty of care and maintenance.

On June 29, 1893, the legislature passed an act providing that said bridge and causeway should thereafter "be maintained by the State of Connecticut at its expense;" and that the Governor, with the consent of the senate, should appoint three commissioners, who should constitute "a board for the care, maintenance and control" of such bridge and highway. (Pub. Acts Conn. 1893, ch. 239, p. 395.) The bridge was a covered wooden bridge, which had been in existence for many years. On November 13, 1894, that board, acting through a majority of its members, made a contract with the Berlin Iron Bridge Company for the construction of a new bridge to cost $275,900. Some work had been done and some material furnished by the company, when on May 17, 1895, the old wooden bridge was entirely destroyed by fire. A week thereafter, and on May 24, 1895, the legislature passed an act (Pub. Acts Conn. 1895, ch. 168, p. 530) repealing the act of June 29, 1893, and directing that thereafter the five towns which had been assessed for the benefits accruing from the establishment of the public highway should maintain that highway, each of them bearing the share of the expense thereof fixed in the assessment proceedings. By the same act a commission was appointed to hear and determine all legal claims and demands (that of the Berlin Iron Bridge Company being specially named) arising under or by virtue of any contract made and executed by the board appointed under the act of 1893. The act provided that if the award of such commission was less than $40,000 the comptroller should draw his warrant on the treasurer for the amount thereof, to be paid upon the delivery of proper receipts, releases and discharges. It also

VOL. CLXX-20

Statement of the Case.

provided that if any party, particularly the Berlin Iron Bridge Company, should not be satisfied with the decision of said commission it might within three years commence and prosecute a suit against the State in the Superior Court of Hartford County for any legal claim, debt or demand arising under or by virtue of any valid contract made and executed by said board, and that in any event such Berlin Iron Bridge Company should be entitled to recover for all material furnished and all expenses of every kind actually incurred under said contract, including therein all legal and personal expenses; that on final judgment being rendered in such suit the comptroller should draw his order on the treasurer for the amount of the judgment; and further, if the contract which had been entered into should be declared valid and binding, the comptroller should carry out and complete the contract according to its provisions and draw his orders on the state treasurer for the cost thereof. Under this act the Berlin Iron Company presented its claim to the commission, which, on December 7, 1895, awarded to it the sum of $27,526. On December 13, 1895, the directors of the Berlin Iron Bridge Company voted to accept this award, and on the same day the company received the money and executed its release in the following words:

"$27,526.

HARTFORD, CONN., December 13, 1895. "Received of the State of Connecticut the sum of twentyseven thousand five hundred and twenty-six dollars in full of award made on the 7th day of December, 1805, by Hon. Dwight Loomis, Hon. Benj. P. Meade, comptroller, and Hon. George W. Hodge, treasurer of the State of Connecticut, acting as a commission constituted by chapter 168 of the Public Acts of 1895, and all other claims presented by this company to said commission are hereby withdrawn, and this payment is received in full satisfaction and discharge of all claims and demands of every nature which this company has or ought to have, arising under or by virtue of any contract made and executed by the commission appointed under chapter 239 of the Public Acts of 1893 with this company, and the within contract is hereby surrendered to the State of Connecticut.".