73 P. 424 | Cal. | 1903
Lead Opinion
There are two appeals, the one taken by resident nephews and nieces, the other by non-resident nephews and nieces, citizens of sister states. Both are from the order of the court holding their respective distributive portions of the estate of the deceased liable for the payment of the collateral inheritance tax under the law as it stood in 1897. (Stats. 1897, p. 77.) So much of section 1 of that act as is necessary to this consideration is as follows: "After the passage of this act, all property which shall pass by will, . . . other than to the use of his or her father, mother, husband, wife, lawful issue, brother, sister, and niecesor *534 nephews when a resident of this state, . . . shall be and is subject to a tax of five dollars on every one hundred dollars of the market value of such property, . . . for the use of the state; . . . provided, that an estate which may be valued at a less sum than five hundred dollars shall not be subject to such duty or tax." The original act of 1893 (Stats. 1893, p. 193) is identical with the section as amended in 1897, saving for the italicized words above quoted, which are added by the amendment.
In the Estate of Mahoney,
In the Mahoney case the appealing nephews and nieces were not citizens of any state of the United States, but were aliens, and therefore had no right to raise the constitutional question of immunities and prerogatives pertaining solely to citizens of sister states. One who does not belong to the class that might be injured by a statute cannot raise the question of its invalidity.(Brown v. Ohio Valley Ry. Co., 79 Fed. 176; Red River Valley etc.Co. v. Craig,
Section 2 of article IV of the constitution of the United *536
States declares that "the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states." In this there is no striking down of or limitation upon the right of a state to confer such immunities and privileges upon its own citizens as it may deem fit. The clause of the constitution under consideration is protective merely, not destructive, nor yet even restrictive. Over and over again has the highest court of the United States so construed this provision. Thus in the Slaughterhouse cases (16 Wall. 36) it is said: "The constitutional provision there alluded to did not create those rights which it called privileges and immunities of citizens of the states. . . . Nor did it profess to control the power of the state governments over the rights of its own citizens. Its sole purpose was to declare to the several states that whatever rights, as you grant or establish them to your own citizens, or as you limit or qualify or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other states within your jurisdiction." (See, also, Blake v. McClung,
And this, in giving operation to that constitutional provision, is what the courts have always done. They have never stricken down the immunity and the privilege which a state may have accorded to its own citizens. They have never annulled the exemption. They have always construed the law so as to relieve the citizens of other states, and place all upon equal footing. Thus in Vermont, where a statute exempted certain personal property of residents, but did not so exempt the like property of non-residents, the tax upon the latter, not the exemption upon the former, was adjudged void, so that non-residents should enjoy the equal right of exemption. (Sprague v. Fletcher,
The case of Sprague v. Thompson,
The order is therefore reversed, with directions to the court to enter its order in conformity with the foregoing views.
Shaw, J., Angellotti, J., McFarland, J., Van Dyke, J., and Lorigan, J., concurred.
Dissenting Opinion
I dissent. The Mahoney case (
With respect to the right of inheritance, there is no natural or intrinsic difference between residents and non-residents who are all citizens of the United States. There may be — indeed, I think there is — an intrinsic and substantive difference between alien and citizens — a difference recognized as a ground of discriminating legislation by the general consensus of all nations. But as between citizens of the United States there is no intrinsic difference as respects the right of inheritance, and there is no difference established or recognized by our state constitution. If this is so, the principle declared in Pasadenav. Stimson,
In the opinion of the court it is said that the result of holding the act of 1897 unconstitutional "is the judicial creation and imposition of a burden, — a tax, — in forthright violation of the intention of the legislature," etc., and the case of Sprague v. Thompson,
In this case, to declare the act of 1897 wholly void, would not be to add anything to a statute for the purpose of keeping it alive. We should only be doing what we continually do in invalidating unconstitutional legislation. And if the effect of invalidating an amendatory act is to leave in its original form the act which the legislature attempted to amend, this is not to legislate; it is only to say, as we so often say, the legislature has failed to pass a valid act.
The judgment of the superior court should be affirmed.