the same has not been sold, the appraisement thereof in the inventory shall be considered as the value thereof. Every executor, curator, tutor or administrator having the charge or administration of succession property belonging, in whole or in part, to a person residing out of this state, and not being a citizen of any other state or territory, shall be bound to retain in his hands the amount of the tax imposed by this act, and to pay over the same to the state treasurer, if the succession be opened in the parish of Orleans or Jefferson, or to the sheriff if the succession be opened in any other parish, in default whereof every such executor, curator, tutor or administrator, and his securities, shall be liable for the amount thereof, It shall be the special duty of the judges of the courts of probate to see that the tax imposed by virtue of this section be collected and paid over, and each of said judges shall be bound to furnish to the treasurer, once a year, a statement or list of the successions opened in his parish whereof persons who are neither residents of this state or citizens of any other state or territory in the union are heirs, legatees or donees, in whole or in part, and of the amount accruing to such persons; and any judge failing to furnish such statement shall be subject to a fine not exceeding five hundred dollars for each and every such omission; and that he be responsible to the state for the amount due; and that the sheriffs of the different parishes throughout the state, except those of the parishes of Orleans and Jefferson, shall pay over the taxes thus received from successions in the same manner, and be subject to the same penalties as in the payment of other taxes; and that the taxes thus received be taken in view in the execution of the sheriff's bond.

Not Retroactive.

This statute does not apply to successions opened before its enactment. Succession of Deyraud, 9 Rob. (La.) 357, relying on Succession of Oyon, 6 Rob. (La.) 504. The court remarks that the legislature might impose a tax on all sums to be paid over to the aliens without reference to the opening of the succession from which they may be entitled to receive such sums, but unless that intention is clearly and unequivocally expressed we are bound to suppose that according to the ordinary rules of legislation they intended to provide for the future and not to affect in any way the rights previously acquired. Succession of Oyon, 6 Rob. (La.) 504. Validity.

"Now the law in question is nothing more than an exercise of the power which every state and sovereignty possesses, of regulating the manner and terms upon which property real or personal within its dominion may be transmitted by last will and testament, or by inheritance; and of prescribing who shall and who shall not be capable of taking it. Every state or nation may unquestionably refuse to allow an alien to take either real or personal property, situated within its limits, either as heir or legatee, and may, if it thinks proper, direct that property so descending or bequeathed shall belong to the state. In many of the states of this union at this day, real property devised to an alien is liable to escheat. And if a state may deny the privilege altogether, it follows that, when it grants it, it may annex to the grant any conditions which it supposes to be required by its

interests or policy. This has been done by Louisiana. The right to take is given to the alien, subject to a deduction of ten per cent for the use of the state.

"In some of the states, laws have been passed at different times, imposing a tax similar to the one now in question, upon its own citizens as well as foreigners; and the constitutionality of these laws has never been questioned. And if a state may impose t upon its own citizens, it will hardly be contended that aliens are entitled to exemption; and that their property in our own country is not liable to the same burdens that may lawfully be imposed upon that of our own citizens.

"We can see no objection to such a tax, whether imposed on citizens and aliens alike, or upon the latter exclusively. It certainly has no concern with commerce, or with mports or exports. It has been suggested, indeed in the argument, that as the legatee resided abroad, it would be necessary to transmit to her the proceeds of the portion of the estate to which she was entitled, and that the law was therefore a tax on exports. But if that argument was sound, no property would be liable to be taxed in a state, when the owner intended to convert it into money and send it abroad." Per Taney, C. J., in Mager v. Grima, 8 How. 490.

The court holds that the Louisiana inheritance tax on nonresidents and aliens is not obnoxious to the constitution of 1845. To be uniform, taxation need not be universal. Certain objects may be made its subject and others may be exempted from its operation, certain occupations may be taxed and others not; so some occupations may be taxed for a greater amount and others for a less, but as between the subjects of taxation in the same class, there must be an equality. The object subjected to taxation in the present case is a succession within the state falling to alien heirs who are non-residents. By the terms of the act, the tax is equal and uniform, the rate of the tax and the description of property subject to it being the same throughout the state. State v. Poydras, 9 La. Ann. 165, 167.

The Louisiana inheritance law on non-residents has been upheld since 1845 in the following cases: State v. Martin, 2 La. Ann. 667; Succession of George, 4 La. Ann. 223; Succession of Pehan, 5 La. Ann. 304.

To whom Applicable.

It was contended that the act of 1842 must be construed according to its own terms, and that the discrepancy between its language excepting those who are not citizens of any state in the union and the La. St. 1850 which excepts only those who are not citizens of any other state or territory means that heirs who are citizens of the United States and heirs who are domiciled in Louisiana are exempt from taxes. The court, however, by reference to the French version of the statute and the original exemplification finds that the word "other" has been inadvertently omitted in the English

text and from this view of the statute the court concludes that the tax attaches not only to property falling to alien heirs who are non-residents but also to property falling to citizens of Louisiana residing abroad. The only exceptions to non-resident heirs are citizens of any other state or territory of the United States than the state of Louisiana. This exemption was probably intended to satisfy the second section of the fourth article of the constitution of the United States. The object of the law was not only to increase the revenues of the state but to discourage absenteeism. State v. Poydras, 9 La. Ann. 165.

Effect of Federal Treaties.

This act was abrogated by a treaty between the United States and France dated February 23, 1853, as to French citizens taking under successions in Louisiana. Succession of Dufour, 10 La. Ann. 391.

The treaty of 1853 between England and France stipulated that it should remain in force for the space of ten years from the day of the exchange of the ratifications. The court holds that therefore it did not go into effect until the ratifications were exchanged, which occurred August 11, 1853, and therefore the succession of a testator who died July 22, 1853, was not affected by it. Succession of Schaffer, 13 La. Ann. 113.

The validity of an inheritance tax levied under the laws of Louisiana upon the estate of one who died in 1848 is not affected by a treaty between the United States and France ratified in 1853, providing that Frenchmen shall in no case be subject to taxes on transfers or inheritances different from those paid by the citizens of the United States. The court holds that the tax vested in the state at the death of testator and that the property vested in the petitioner at that time as heir, and that therefore the treaty had no effect upon it. Prevost v. Greneaux, 19 How. 1, affirming Succession of Prevost, 12 La. Ann. 577.

Where the heirs of the decedent are subjects of Bavaria the court holds that the treaty between the United States and Bavaria of 1845 (U.S. Sts. at Large, Vol. 9, p. 26), prevents the subjects of Bavaria from being liable to an inheritance tax. Succession of Crusius, 19 La. Ann. 369.

The court follows the Dufour case, 10 La.Ann. 391, and Succession of Prevost, 12 La. Ann. 577, and holds that the French treaty of 1853 prevents the imposition of the Louisiana alien tax. State v. Circe, Man. Unreported Cases (La.) 412.

A treaty between the United States and the King of Wurtemberg, dated April 10, 1844, provided that citizens of each country should have a right to take as heirs, paying such duties only as the inhabitants of the country where the property lies. The court holds that the Louisiana statute does not make any discrimination between citizens of the state and aliens in the same circumstances as a citizen of Louisiana domiciled abroad is subject to the tax. Furthermore, the case of a citizen or subject of the respective countries residing at home and disposing of property there in favor of a citizen or subject of the other was not in contemplation of the treaty. So the tax should be collected on the estate of a citizen of Louisiana leaving property to a citizen of Wurtemberg. Frederickson v. State, 23 How. (U. S.) 445.

The Statute of 1850.

La. St. 1850, No. 194, p. 146, imposes the duty on executors or administrators having charge of succession property belonging in whole or in part to a person residing out of this state and not being a citizen of any other state to retain in his hands the amount of the tax imposed by law and pay over the same to the state treasurer, in default whereof every such executor shall be liable for the amount of the tax.

The Statute of 1855.

La. St. 1855, c. 315, s. 7, p. 399. Approved March 15, 1855.

Be it further enacted, etc., that each and every person not being domiciliated in this state and not being a citizen of any state or territory in the union, who shall be entitled, whether as heir, legatee or donee, to the whole or any part of the succession of a person deceased, whether such person shall have died in this state or elsewhere, shall pay a tax of ten per cent on all sums or on the value of all property which he may have actually received from said succession, or so much thereof as is situated in this state after deducting all debts due by said succession; when the inheritance, donation or legacy consists of specific property and the same has not been sold, the appraisement thereof in the inventory shall be considered as the value thereof. Every executor, curator, tutor or administrator having the charge or administration of succession property belonging in whole or in part to a person residing out of this state, and being a citizen of any other state or territory, shall be bound to retain in his hands the amount of the tax imposed, and to pay over the same to the state treasurer, or to the officer appointed by him; in default whereof every such executor, curator, tutor or administrator, and his securities shall be liable for the amount thereof.

This tax is not a debt of the succession, it is simply a debt of the heir who happens to be domiciled in a foreign country, and therefore

a suit to recover this tax should be brought directly against the heirs who under the statute owe it to the state, and the court does not decide the effect of the French treaty on this statute. Succession of Pargoud, 13 La. Ann. 367.

Repeal of the Alien Tax Act.

La. St. 1877, c. 47, approved March 10, 1877, amended Louisiana Revised Statutes 1870, section 313, to read as follows:

"Whenever any person, permanently residing without the state, shall die, being the owner of any bank stock, railroad stock, insurance or other stock, in any bank or incorporated companies of this state, or in any national banking association, located in this state, except the property banks, no state tax prescribed in cases of succession shall be applicable to such stock."

La. St. 1877, c. 86 (extra session), p. 125, approved April 20, 1877, repealed Louisiana Revised Civil Code, articles 1221, 1222 and 1223, and the Louisiana Revised Statutes of 1870, sections 2683, 2684, "provided that the repeal of said articles of the civil code and sections of the Revised Statutes shall not affect the right of the state to collect said tax in successions already opened."

La. St. 1888, c. 109, p. 173, approved July 12, 1888, amended La. St. 1877, c. 47, of the regular session by omitting any reference to succession taxes.

The Invalid Alien Statute of 1894.

La. St. 1894, c. 130, approved July 11, 1894, amends and re-enacts Louisiana Civil Code, articles 1221, 1222, 1223, imposing a tax on foreign heirs, legatees and donees. The articles as re-enacted are as follows:

A. 1221. Each and every person, not being domiciliated in this state, and not being a citizen of any state or territory in the union, who shall be entitled, whether as heir, legatee, or donee, to the whole or any part of the succession of a person deceased, whether such person shall have died in this state, or elsewhere, shall pay a tax for the benefit of the Charity Hospital in New Orleans of ten per cent on all sums on the value of all property which he may have actually received from said succession, or so much thereof as is situated in this state, after deducting all debts due by said succession; when the inheritance, donation or legacy consists of specific property and the same has not been sold, the appraisement thereof in the inventory shall be considered the value thereof.

A. 1222. Every executor, curator, tutor or administrator having the charge or administration of succession property belonging in whole or in part to a person residing out of the state, and not being a citizen of any other state or territory, shall be bound to retain in his hands the amount of the tax imposed, and to pay