Thе plaintiffs, the duly qualified executors under the will of Lena McMullen, late of Norwalk, filed with the tax commissioner of Connecticut an affidavit in accordance with Chapter 50 of the Public Acts of 1919, and thereafter the tax commissioner filed with the State treasurer a statement that there was due from the estate of Lena McMullen to the State of Connecticut, by virtue of its statutes, $10,286.39, and made claim for such sum. Thereupon the executors made this application in the nature of an appeal from said claim, to which the defendant demurred. The single point raised by the demurrer is that the statutes * *364 which, authorize this action of the commissioner are unconstitutional.
The obvious legislative purpose is to cоmpel estates to pay to the State a sum which shall approximately equal the taxes which property of the estate has escaped paying while in the hands of the decedent. The power of an owner to transfer property owned by him to his legatee, or to have the distributee named by the law receive it, “is a privilege grantеd by the State, which may properly dictate the terms on which the privilege may be enjoyed.”
Nettleton’s Appeal,
*365
The succession tax, by whatever name it is called, is a tax upon the privilege of receiving or transmitting property after death, and hence the tax is laid upon that portion of the estate which passes to the beneficiaries. Unless there be some beneficial succession, there is nothing to which a succession tax can be attached.
Hopkins’ Appeal,
The tax imposed by § 1190 of the General Statutes, is upon the gross value of that portion of the estate which has not paid a State or local tax in the year preceding the decedent’s death.
Another distinguishing mark of the succession tax is the classification which all succession taxes make, and this is absent from this tax. These two characteristics make it clear that, whatever else this tax is, it is neither a succession tax nor in the nature of one. The succession tax is upon the transfer, not upon the individual nor upon property; and the public authorities and the members of the profession have nevеr so regarded § 1190, but have uniformly treated it as a penalty in the nature of an estate tax. Section 1190 includes within its provisions both real and personal property. But the plaintiffs probably correctly diagnose the situation leading up to this statutory tax, when they say, in their brief, “it is a matter of common knowledge that the prime purpose and the chief effect of the statute is to obtain an exaction from personalty and especially from that kind of personalty known as choses in action.”
Under this section, property which has not been subject to a town or city or State tax during the year preceding the death of the decedent, is liable to a tax of two per centum of its appraised inventory value for the five years next preceding the date of death of decedent, provided that a proportionate reduction of this tax may be had by proof that any part of the tax has been paid, *366 or that the decedent did not own any of this property during this period.
The pecuniary liability imposed by this Act is a penalty in the nature of a tax for an omission to list property for taxation. Punishment is the end of a penalty. “In the municipal law of England and America, the words ‘penal’ and ‘penalty’ have been used in various senses. Strictly and primarily, they denote punishment, whether corporal or pecuniary, imposed and enforced by the State, for a crime or offence agаinst its laws. . . . The test whether a law is penal, in the strict and primary sense, is whether the wrong sought to be redressed is a wrong to the public, or a wrong to the individual.”
Huntington
v.
Attrill,
This tax may or it may not represent what the decedent would have been required to pay had he paid the State or local tax. The entire five years tax may be compelled, when in fact nothing over one year is due, if the representative of the decedent cannot prove the fact. The State presumes it is unpaid for the five-year period and requires the executor or administrator to disprove this. This is not the compulsory payment of a defined tax, but is the infliction of a punishment for a violation of a public duty. The authors of this statute intended it as and for a penalty tax, and such we esteem it to be. Thе right of the State to the transfer tax, or to the penalty in the nature of an estate tax, vests at the death of the decedent. As a penalty tax it is open to every constitutional objection which can be urged against property taxes. So far we find our views run in harmony with the plaintiffs’ argument; from this point on we find our conception of the case completely divergent from the rest of their argument, the points of which we take up in our own order.
First.
Section 1190 is not void as an
ex post facto
law. "An Act
ex post facto
relates to crimes.”
Bridgeport
v.
Hubbell,
Second.
Section 1190 does not impose an excessive fine in violation of § 13 of Article First of the Constitution of Connecticut. The term “penalty” in its broadest sense includes all punishment of whatever kind. 13 Amer.
&
Eng. Ency. of Law, p. 53. A fine is always a penalty, but a penalty may not always be a fine.
United States
v.
Nash,
111 Fed. Rep. 525. A fine is a “pecuniary punishment imposed by a lawful tribunal uрon a person convicted of crime or misdemeanor. ” 2 Bouvier Law Dictionary (3d Rev.) 1225;
Southern Express Co.
v.
Commonwealth ex rel. Walker,
Third. The third ground upon which the constitutionality of this statute is attacked, is that it is in conflict with the Fourteenth Amendment to the Constitution of the United States, in that it deprives the creditors and distributees of this estate of their property without due process of law, (a) by exacting a penalty from them for the failure of the decedent to list his property for taxation, and (b) by creating against them a presumption of guilt for such omission. Both claims rest upon the unfounded premise that the proрerty of this estate, upon the decease of the owner, passed to the distributees subject to the payment of the just debts of the estate.
(a) The right to dispose of one’s property by will, and the right to have it disposed of by the law after decease, is created by statute, and therefore the State may impose such conditions upon the exercise of this right as it may determine.
Stone’s Appeal,
General Statutes, § 5007, furnishes an order for the payment of claims: (1) funeral expenses; (2) expenses of last sickness; and (3) taxes due the State and the United States. Penalties of this character fall within class three and should be paid in that order.
The tax levied, of two per centum per annum on the appraised inventory value of the taxable property of the estate upon which no town or city tax has been assessed, *370 or upon which no tax has been paid to the State during the year preceding the date of death of the decedent, is exactly the same as if a straight ten per cent penalty had been paid. The proviso, that this penalty may be reduced proportionately by proof that for any portion of this period such tax has been paid, or that such property was not in the ownership of the decedent, is a consideration shown, or an exception made, in behalf of the estate, and indicates that thе main purpose of the penalty is to secure the payment of the taxes which the decedent did not pay. But this does not change the character of the penalty. If the representative of the decedent cannot make such proof, the estate must pay the full penalty. Neither the heirs, legatees, or creditors pay the penalty, but the estate; hence it is not an exaction laid upon persons innocent of the failure to pay this tax, and does not deprive them of their property, for they never owned the part so paid any more than they could be said to own the part which went to pay accrued taxes. The plaintiffs say this penalty is confiscation of property, but we see in it nothing more than a reasonable regulation to secure the payment of the public taxes.
The civil action for the recovery of a penalty incurred by a decedent may, by statutory sanction, survive. In effect, this statute is a penalty tax imposed upon the estate because of the delinquency of the deсedent, and no less permissible than the penalty tax against the decedent, kept alive by statutory sanction.
(b) Section 1190 does not create a presumption of guilt for the omission of not listing or paying the tax for the five-year period. It imposes a penalty based upon a tax rate for the five-year period, and it gives the representatives of the estate the privilege of reducing this by proof of the amount of the tax paid, or that the decedent did not own the property for any of this period. The extent of the penalty was, within reasonable limits, *371 within the legislative discretion. If the proof be difficult for the representatives to make, it is better so than not to have the privilege of making it at all. Had the penalty for the failure to list or pay the tax during the year preceding the date of the death of the decedent been made a flat ten per cent, no question could be successfully made as to the validity of the penalty.
This statute cannot be pronounced so purely arbitrary as to be prohibited by the Fourteenth Amеndment. The Fourteenth Amendment does not prohibit legislation special in character;
Magoun
v.
Illinois Trust & Savings Bank,
The statute is not attacked as unconstitutional because of its classification. Nor could it be. “A legislature is not bound to impose the same rate of tax upon one class of property that it does upon another.”
Michigan Central R. Co.
v.
Powers,
The appeal from the determination of the tax commissioner to the Superior Court, given by General Statutes, § 1192, afforded these plaintiffs that due process of law guaranteed by the Constitution. “It has frequently been held by this court, when asked to review tax proceedings in State courts, that due process of law is affоrded litigants if they have an opportunity to question the validity or the amount of an assessment or charge before the amount is determined, or at any subsequent
*372
proceedings to enforce its collection, or at any time before final judgment is entered.”
Gallup
v.
Schmidt,
We have considered and passed upon each of the points discussed in the plaintiffs’ brief except their consideration of the case of
Matter
of
Watson
(1919),
The Superior Court is advised to sustain the demurrer and to dismiss the application.
No costs to be taxed in this court.
In this opinion the other judges concurred.
Notes
General Statutes, § 1190.' All taxable property of any estate upon which no town or city tax has been assessed as provided in section 1189 or upon which no tax has been paid to the state during the year preceding the date of the death of the decedent, shall be liable to a tax of two per centum per annum on the appraised inventory value of such property for the five years next preceding the date of the death оf such decedent, -provided, the executor or administrator of any estate may, by furnishing evidence to the satisfaction of the tax commissioner that a state, town or city tax has been paid on any of such property for a portion of said five years or that the ownership of such property has not been in the decedent for a portion of said period, obtain a proportionate deduction *364 from the tax hereby imposed, and provided, the administrator or executor of such estate may furnish evidence to the tax commissioner that the appraised value of the estate is not in excess of two thousand dollars and a portion of the same passes by will or pursuant to the provisions of the statutes relating to the distribution of intestate estates, to the widow or minor children, as provided in section 1189.
General Statutes, § 1192. Any executor, administrator or representative of such an estate aggrieved by the action of the tax commissioner in determining such tax, if unable to agree with the tax commissioner upon the amount of such tax as provided in section 1190, may, within ninety days from the time of the filing by the tax commissioner of such statement or corrected statement with the judge of probate, make application in the nature of an appeal therefrom to the Superior Court of the county in which such probate court is located which shall be accompanied by a citation to said tax commissioner to aрpear before such court. . . .
General Statutes, § 1189, as amended by Chapter 50 of the Public Acts of 1919. The executor of every will and the administrator of every estate, except as hereinafter provided, at the time of filing the inventory and appraisal of such estate with the Court of Probate, shall, in addition thereto, file an affidavit in duplicate sеtting forth the items included in such inventory on which a tax has been assessed by any town or city during the last completed taxing period, or paid to the State during the year next preceding the date of the death of the decedent, the assessed value of each item and the place of the assessment or payment of the tax on each item, and the judge of probate shall send to the tax commissioner, with the copy of each inventory required to be sent to said commissioner, a copy of such affidavit. . . .