138 N.C. 259
N.C.
1905

Brown, J.

We are inclined to think this appeal is premature, but as no appearance has been made or brief filed in this Oourt on behalf of the petitioner, the Olerk of the Superior Oourt, and no such point made, we will pass on the matter of law presented in the brief of counsel for the Executors.

1. It is contended that the Act of 1903 is unconstitutional and void for these reasons :

(a) Because it impairs the value of Mrs. Caldwell’s legacy, she being a lineal descendant of the testator, in that under the will she was to receive eight thousand dollars, and if the tax collector is permitted to take a portion of this eight thousand dollars then she will not receive all the money to which she was entitled.

*261 (b) Because it exempts persons receiving less than two thousand dollars, and taxes persons receiving over two thousand dollars.

(c) Because it exempts real estate and taxes personal property. In this case Mr. Morris’ daughter, Mrs. Caldwell, although she only received eight thousand dollars, in truth and in fact, under the act as drawn, will have to pay a greater tax than either one of her brothers, although they receive many times as much as she does, because theirs is in real estate, and hers is in personal property.

(d) Because it exempts Mrs. Morris, the mother, and taxes Mrs. Caldwell, the daughter.

The inheritance or succession tax is of very ancient origin. It is no new invention of the legislative power for' the purpose of putting money in the public coffers. Gibbon, the historian, traces its origin to the Emperor Augustus, and says it was suggested by him to the Senate as a means of supporting dhe Roman army; that it was imposed at the rate of five per cent upon all legacies or inheritances above a certain value; but that it was. not collected from the nearest relatives upon the father’s side, and that the tax was the most fruitful as well as most comprehensive. 1 Gibbon’s Rome 133; Encyc. Brit., 8th Am. Ed., 65, title Taxation. It was called “vicessima hereditatum et legatorum." In this country the tax is variously called an inheritance tax, a legacy tax, a transfer tax, and a succession duty. It is defined as follows: “A burden imposed by government upon all gifts, legacies, inheritances and successions, whether of real or personal property, or both, or any interest therein, passing to certain persons (other than those specially excepted) by will, by intestate law, or by deed or instrument made inter vivos intended to take effect at or after the death of the grantor.” Dos Passos, (2nd Ed.) Sec. 2.

This method of taxation has been long resorted to in European countries and was introduced into Great Britain by *262 Lord. North and adopted in 1780. Of the States of the American Union, Pennsylvania was tbe first to adopt it in 1826, since which date it has been adopted as a means of governmental support by a great many other States. As a means of raising revenue, the method is generally commended by writers on Political Economy. Hills’ Political Economy, Book 5, Ch. 62, Sec. 3. It is generally conceded that no tax can be less burdensome and interfere less with the industrial agencies of society. Smith’s Wealth of Nations 683. Mr. Justice Brewer, of the Supreme Oourt of the United States, in writing unofficially on the subject, says: “I have often urged this method of taxation as one of the most just, and if it were graduated in proportion to the amount of property passing I think it would be most beneficial. It would tend largely to prevent the accumulation of property in a family line and to work that distribution which is for the interest of all.” The tax has been imposed by the Federal Government as a means of war revenue and sustained by our highest court. Knowlton v. Moore, 178 U. S., 41. The fallacy in the argument of counsel for the Executors is in assuming that the tax is a tax upon property, and therefore should be uniform and levied in conformity with the requirements of the Constitution. If we conceded his premise, we should have no difficulty in arriving at his conclusion. The theory on which taxation of this kind on the devolution of estates is based and its- legality upheld is clearly established and is founded upon two principles: 1st. A succession tax is a'tax on the right of succession to property and not on the property itself. 2nd. The right to take property by devise or descent is not one of the natural rights of man but is the creature of the law. Should the supreme law abolish such rights the property would escheat to the government or fall to the first occupant. The authority which confers such rights may impose conditions upon them, or take them away entirely. Accordingly it is held that the *263 States may tax tbe privilege, grant exemptions, discriminate between relatives and between these and strangers, and are not precluded from the exercise of this power by constitutional provisions requiring uniformity and equality of taxation. Neither is it necessary to the validity of the tax that the State Oonstitution should contain a specific delegation of power authorizing the Legislature to impose such taxation. The power of the Legislature over the subject of taxation is absolute unless restricted by the Constitution of the State or Nation. Upon the grounds we have stated inheritance or succession tax laws have been uniformly held to be valid and to infringe no constitutional provisions, Federal or State. These decisions have been made by the Supreme Court of the United States and by all the highest courts in all the States where such laws have been enacted. The authorities are collected in 27 Am. & Eng. Encyc. (2nd Ed.,) pags 338, and it is unnecessary to review them. They are all one way.

In our own State the constitutionality of an act similar in many respects to that of 1903 was sustained in an able opinion by Justice Rodman. Pullen v. Commissioners, 66 N. C., 361. The fact that the Act of 1869-70 applied to real and personal property alike makes no difference. The right to impose the tax does not depend upon the nature or kind of property transferred. Matter of Knoedler, 140 N. Y., 377; and cases cited in 27 Am. & Eng Encyc. (2d Ed.,) page 343.

2. The objections urged against the legislative method provided for the ascertainment, computation and collection of this tax are eqrially untenable: The method provided is set out in the Act of 1903, Chap. 247, Sections 6 to 21 inclusive. No provision of the Constitution is violated in the remedy. The statutory provisions have been strictly followed in this proceeding, and under them His Honor had full power to make the order appealed from. The fact that the testator in his will directed his Executors not to make *264 any returns of bis property cannot be -permitted to bave tbe - effect of nullifying “tbe law of tbe land.” It is tbe duty of tbe Executors to obey tbe order; otherwise they would incur tbe penalties for contempt. It is tbe plain duty of tbe Clerk to compute and adjudge the amount of tax due and to collect tbe same and pay it to tbe State Treasurer as required by law.

It is not proper or necessary for this Court on this appeal to adjudicate tbe amount of tax to be levied upon tbe legacies given in tbe will. It is tbe duty of tbe Clerk to bave tbe appraisement made, if necessary, under Section 15 of tbe Act and to ascertain and declare tbe amount of tbe tax to be paid. Erom a final order determining tbe same an appeal is provided for by tbe Act.

Affirmed.