delivered the opinion of the court:
Thе right of appellant to maintain this bill has not been challenged by the appellees, and it will therefore be assumed, without argument, for the purpose' of this appeal, that the allegations of the bill are sufficient to show that a property right of the appellant was involved in the court below and ,that the bill could be maintained to avoid a multiplicity of suits. Craft v. Indiana, Decatur and Western Railway Co.
The counsel for the appellant and the counsel for the State differ widely and fundamentally upon the relation which the appellant sustains towards its lessees, and the property which its lesse’es place in the safety deposit boxes and safes which they rent from the appellant, and as to the interest of the State in the property situated in a safety deposit box or safe, placed therе by a lessee, upon the death of the lessee, when the property is subject to the payment of an inheritance tax. We think, for the proper decision of this case, the exact relation which the appellant sustains to a person to whom it rents a safety deposit box or safe, and the property placed in such box or safe by the lessee, and the interest which the State has in the property of a lessee remaining in such safety deposit box or safe upon his death, if such property is subject to an inheritance tax, must necessarify be determined as a preliminary question, as, according to our view, the correct determination of those questions will simplify many of the questions discussed in the briefs and eliminate others, and place the case in such a situation that a rational solution of the question here involved, whose determination is vital to a correct decision of this case, may readily be determined.
We think it clear that where a safe-ty deposit company leases a safety deposit box or safe, and the lessee takes possession of the box or safe and places therein his securities or other valuables, the relation of bailee and bailor is created between the parties to the transaction as to such securities or other valuables, arid that the fact that the safety deposit company does not know, and that it is not expected it shall know, the character or description of the property which is deposited in such safety deposit box or safe does not change that relation, any more than the relation of a bailee who should receive for safe keeping a trunk from a bailor would be changed by reason of the fact that the trunk was lоcked and the key retained by the bailor, although the obligation resting upon the bailee with reference to the care he should bestow upon the property in the trunk might depend upon his knowledge of the contents of the trunk. Obviously, the bailee would be in possession of the trunk and its contents, and no amount of argument would demonstrate that while the trunk was in possession of the bailee its contents were in the possession of the bailor, solely by reason of the fact that the bailor of the trunk retained the key and the bailee did not have access to the trunk. We are of the opinion that the relation of bailee and bailor exists between the appellant and its lessees, and that the deposit of the securities and valuables by its lessees in rented safety deposit boxes or safes is a bailment, and that .the law applicable to bailments, generally, applies to such transaction and to such property.
In Mayer v. Brensinger, 180 Ill. no, the appellee rented from the appellant a safety deposit box in his safety deposit vault, in which he deposited cash. During the illness of the appellee the cash was removed from the box, and suit was brought and a recovery was had. In that case, as in this, the appellee retained the key to the box. The court, on page 113, said: “The relation which the appellant bore to the appellee was that of a bailee or depositary for hire. As-such, bailee or depositary for hire the appellant was bound to exercise ordinary care and diligence in the preservation of the property entrusted to him by the appellee. Ordinary ’care in such cases is such care as every prudent man takes of his own goods, and ordinary diligence in the preservatiоn of such goods is such diligence as men of common prudence usually exercise about their own affairs. (Chicago and Alton Railroad Co. v. Scott,
In the case of Lockwood v. Manhattan Storage and Warehouse Co.
We think the above authorities clearly sustain the position that the appellant, in law, is in possession of the property of its lessees deposited in the safety deposit boxes or safes which it rents to them, and while it may not have knowledge of the character, amount or quantity of the property which its lessees have deposited in the safety deposit boxes or safes leased from it, nevertheless it is in the legal custody and control of such property. True, while a lessee is living, by the terms of the lease with the appellant he has access to the box or safe, and upon his death the duty devolves upon the appellant to hold the contents of his box or safe and to deliver them to those persons, only, to whom they belong or to whom the law directs they shall be delivered, and such delivery must be made at the appellant’s peril. We conclude, therefore, upon the death of a lessee of a safety deposit box or safe the contents of such box or safe are in the possession and control of the appellant, and the same duty rests upon it as rests upon every other bailep who finds himself in the possession of property that belongs to a bailor who has died during the existence of the bailment,—that is, to deliver the bailment to the party or parties upon whom the law casts the title, with the right of possession. The law is also well settled that the right to take property, either real or personal, by inheritance оr by bequest or devise is purely a statutory right and one which rests wholly within legislative enactment, and the State, acting in its sovereign capacity, by appropriate legislation may regulate and contrdl the devolution of property after the death of the owner. (Evans v. Price,
It has been decided by this court that an inheritance tax is a tax upon the right of succession and is not a tax upon the property itself. (Kochersperger v. Drake, supra; Estate of Merrifield v. People,
In Matter of the Estate of Stanford,
It is clear, therefore, that the State has an interest in every estate that is subject to the payment of an inheritance tax, and in all such proceedings the Attorney General, or some other designated officer, is the representative of the State. (People v. Sholem,
From what has been decided, 'it follows that it is our view that section 9 of the act of 1909 is a valid enactment so far as it covers property held by a safety deposit company and which had been deposited in a safety deposit box or safe, in a case where" the sole lessee of such safety deposit box or safe had died leaving his property in a safety deposit box or safe and in the custody of and under the control of the appellant, it being our view that in consideration of such enactment the appellant has no more right, under the constitution, either State or national, to ignore the property rights of the State and to surrender and deliver property thus situated by turning it over to the personal representative, heir or devisee of the decedent, than it would have to deliver the same to the" State to the entire exclusion of the rights of the personal representative, heir or devisee of the deceased. All the parties in interest for whom the appellant, as a safety deposit company, holds property thus situated, are under the law entitled to be informed of the condition and amount of such property so found in safety deposit boxes or safes, before the appellant parts with the possession thereof. This would be "the law which would govern any other bailee under like circumstances if the statute had not been enacted, and we think no valid reason is or can be assigned why such should not be held to be the law in view of said statute governing safety deposit companies.
It is contended by the appellant that even though the constitutionality of section 9 of the act of 1909 should be sustained when applied to property found in a safety deposit box or safe where the sole lessee of such receptacle is dead, it is clearly unconstitutional when applied to property found in a safety deposit box or safe where there are jоint lessees and one of the lessees is dead, even though the lessees were not jointly interested in the contents of such safety deposit box or safe and the property was not commingled in the safety deposit box or safe; that the enforcement of the statute would be far more objectionable, on constitutional grounds, where one of two or more lessees was deceased and the property found in a safety deposit box or a safe was owned jointly by the lessees, or where the lease was made by a co-partnership and the property belonged to- the co-partnership and one of the co-partners had died and the surviving joint owner or the surviving partner or partners were seeking to have the joint property or co-partnership property surrendered and delivered to such joint owner or surviving partner or partners. As to the case .of the death of one of two or more joint lessees, where the property of such joint lessees was deposited in the safety deposit box or safe but the property of the several lessees had not been commingled and the property of the surviving lessee could be readily separated from the property of the deceased lessee, we see no difficulty in the way of the enforcement of the statute. All that would be necessary for the appellant to do to protect the rights of the surviving lessee would be to deliver to him his property and protect the parties representing the deceased by holding the property which belonged to the deceased lessee. If inconvenience arises it would arise otit of the joint relation of the parties, and might as readily arise between the appellant, the surviving lessee and the personal representative or heir of the decedent as between the appellant and the surviving lessee and the State. Whatever inconvenience to the appellant or to the surviving lessee would be caused by the joint occupancy of the safety deposit box or safe would be necessarily an inconvenience which they must have contemplated when they entered into the joint relation, and would, we think, place -each of them in a position where they could not object to the owners of the property who succeeded to the rights of the deceased joint lessee (which would include the State) from obtaining their full rights in the property of the deceased lessee found in such safety deposit box or safe. We therefore conclude that there is no constitutional objectidn to the enforcement of the statute as to property owned jointly by a deceased lessee and another and deposited in a safety deposit box or safe, where the property of the several lessees has not been commingled by the acts of the parties but has been kept separate. We think it can be -said that where the property of joint lessees has been commingled or is jointly owned by the lessees, upon the death of one of the joint lessees the parties who succeeded to the rights of the deceased joint lessee (which would include the State) would have the 'right, as against the appellant and the surviving lessee, to have the amount, character and value of the property deposited jointly in such deposit box or safe determined before the property is surrendered or delivered by the appellant and to have the рroperty belonging to the parties who succeeded to the rights of the decéased lessee valued and determined, and that the appellant and the surviving joint owner who had assisted in creating such joint relation could not complain of the enforcement of the statute, which was enacted for the determination of the rights of the parties (which would include the State) who sueceed, in part, to the rights of such deceased owner. Clearly, when the joint relationship was formed it was known to all joint owners who entered into the relation, as well as to the appellant, that if the death of one of the joint owners intervened before the joint relationship was terminated it would be necessary to determine the question of each joint owner’s interest in the property. We think the same course of reasoning which controls where property is found in a safety dеposit box or safe which was leased jointly and where the property of each lessee has been kept separate and apart, must, in favor of the State and all others interested in the property, be applied as against the appellant and the joint surviving owner who has commingled his property with a joint lessee who has died, and that the statute can be enforced in the same manner against the appellant and the joint surviving lessee who has voluntarily commingled his property, as against appellant and a joint lessee who has kept.his property separate. We therefore hold the act constitutional in the latter as well as the former case.
A more difficult question is presented when the safety deposit box or safe has been leased by a co-partnership and one member of the co-partnership has died leaving co-partnership property remaining in such safety deposit box or safe. We think, however, if it be borne in mind that the co-partnership by the death of a co-partner is dissolved, and that while the assets may be lawfully retained by the surviving member or surviving members of the co-partnership they ultimately must account to the personal representative of the deceased partner for his share and that the inheritance tax will only be assessed upon the succession to what may remain after the partnership debts are paid, it must be held that the statute applies to a co-partnership lease and to co-partnership assets. We can see no objection to the personal representative of the deceased partner, and all other persons who have or will have an interest in his estate, (which would include the State,) being informed as to the amount, character and value of the co-partnership assets in a leased co-partnership safety deposit box or safe at the time of the dissolution of the partnership by the death of a partner. In the Graves case, supra, it was held that while questions may arise as to the persons ip whom the title rests, and such questions may affect the amount of the inheritance tax and the persons whose estate shall be chargeable with it, still, when those questions are finally determined, their determination relates back and becomes fixed as of the date of the death of the decedent. It can not be legitimately urged that the true object of the organization of the safety deposit company is to furnish receptacles where parties may secrete their property from the eye of the tax-assessing and tax-collecting officer of the State with a view of escaping taxation, or that when property is found in the possession of a safety deposit company which formerly belonged to a person who has since died or in which he is interested it should not be taxed, and we think no valid reason can be suggested why every person interested in property thus found (which would include the State) has not the right, whether it be held individually or jointly or by a co-partnership, to know the amount, value and kind of such property. When a partnership is dissolved by the death of a partner the law requires the surviving partner or partners to inventory the partnership estate, to have it appraised and to file a list of liabilities,— in short, to make a full showing of the partnership estate. It has never been thought that statutes of that character were unconstitutional by reason of the fact that the surviving partners were required thereby to disclоse the partner- ' ship assets or spread upon the records of the county court the secrets of the business of the partnership. The whole scope and object of section 9 is to require a disclosure of the assets of the deceased person,—not alone those which are deposited in safety deposit vaults, but such as are held by trust companies, corporations, banks or other institutions or by any person or persons; and there is no valid reason why, when assets are deposited in the safety deposit boxes or safes of a safety deposit company for safe keeping, the State, and every other person having a property right in such deposit, upon the death of the depositor should not be permitted, at the time such assets are withdrawn from the vaults of the safety deposit company, to be informed of their charactеr, value and amount. We are fully convinced that the statute legitimately places the State in the same position as any other owner in regard to its right to be informed as to the value of the assets of a deceased lessee, and that the right of the State to secure such information rests on valid constitutional grounds.
We will now consider in detail some of the objections which are specifically urged by counsel for the appellant against the constitutionality of section 9.
It is first contended that the section impairs the obligation of the charter of the appellant. The charter of the appellant, which is its contract with the State, provides that it is organized “for the express purpose of providing a suitable building or buildings with vaults and safes, with a special regard to protection against loss by fire, robbery or otherwise, and to carry on the business of safety deposit and storage.” In pursuance of its corporate powers it has provided a building and entered upon the business of renting safety deposit boxes and safes, and we are unable to ascertain wherein section 9 impairs, takes from or infringes any of the powers of the appellant granted to it by its charter. Section 9 in no way deprives the appellant of the right of constructing or renting a building, vaults, etc., or of renting its safety deposit boxes or safes, or deprives it of its right to act as a depository for hire and to receive and accept for deposit all securities or other valuables which may be delivered to it by its lessees, or prevents it from delivering to the rightful owner or owners of or persons entitled to all or .any of such securities or other valuables as may have been delivered to it, upon the termination of the relation which is created between it and its lessees. The utmost that can be said is, that upon the termination of the relation which has been created between the appellant and a lessee by the death of such lessee, it cannot part with the possession of or surrender the securities or other valuables which have been placed in its safety deposit box or safe without pursuing the method contained in section 9, to the end that if there is due upon the succession of the property deposited with it an inheritance tax, the amount of such inheritance tax may first be determined and collected. The law has always been that a bailee must deliver the bailmént to the person to whom it belongs, upon the termination of the contract of bailment, and all the legislature has done is to pass a statute which vests the State with an interest in the estate of a -deceased persоn which is subject to an inheritance tax, and which provides that where the bailment is terminated by the death of the lessee and the property is to be surrendered by the safety deposit company, the State shall be treated as a part owner of such bailment and receive notice, through its appropriate officer, of the proposed surrender, to the end that it may receive and be paid its proper proportion of the property so deposited with appellant. This, as has heretofore been determined, is not an unreasonable or unconstitutional regulation. That the State has the right to modify, regulate or impose conditions upon the right of succession, by inheritance or by will, to property which was owned by a person who has died there can be no question. (In re Estate of Speed, supra.) The right to take property in pursuance of descent or will is wholly, statutory, and that such right may be changed by the legislature is unquestioned. (Kochersperger v. Drake, supra; In re Estate of Speed, supra; In re Petition of Mulford, supra.) The right to bequeath or devise property by will or to take by inheritanee can be enjoyed only because such right is conferred by statute. (Evans v. Price, supra; Wunderle v. Wunderle, supra.) The proposition that the State has the right to provide for an inheritance tax and to levy the tax upon the right of the succession to property, and to provide that the State shall take a vested interest in the estate immediately upon the death of the deceased, has become in this State axiomatic. We do not think, therefore, that a law which, in fact, only requires that the appellant shall not, without notice to the State, deliver the property which it has received into its vaults where thе owner or part owner of such property has died since its receipt by the appellant, and, if it is subject to an inheritance tax, not deliver the same, without the consent of the State, until the tax is paid, can rightfully be said to infringe upon the charter rights of the appellant.
It is also contended that the appellant is deprived of property and liberty without due process of law, and that it is deprived of the due protection of the law, by said section 9. Having heretofore reached the conclusion that a safety deposit company is in possession and control of the securities and other valuables delivered to it by its lessees, and that the relation of bailee and bailor exists between the safety deposit company and its lessee, and that upon the contingency of the death of a lessee who is an owner, in whole or in part, of prоperty in the possession of the safety deposit company the safety deposit company may rightfully hold such deposit, and must hold it, until it can deliver it to the true owner, and that the State is a part owner of the deposit in case it is subject to the payment of an inheritance tax, we think by the terms of section 9 the appellant’s right of contract is not infringed upon and that it is not deprived of liberty, property or the due protection of the law,-—in short, that section 9 provides first for the determination of the question, Is the property subject to an inheritance • tax ?■—and if it is, that it must be paid before the appellant can rightfully part with the possession of the property. In this connection the objection to the statute that the appellant is made a trustee and tax gatherer without its consent may be considered, and the answer to these propositions will, we think, demonstrate the fallacy of the argument that the appellant has been deprived, by the statute, of liberty,, property and the due protection of the law.
The appellant is not a trustee in the ordinary sense, but a bailee, and the fact, if it were a fact, that it is used, in part, as a tax-assessing and tax-collecting officer would not invalidate the statute. Numerous statutes have been passed by the legislatures of this and other States which require banks, trustees, executors, administrators and agents to return for taxation property in their possession, and such statutes frequently provide that if the banks, trustees, executors, administrators and agents holding such property surrender the same without the tax thereon being paid, they shall be liable for the tax. (Walton v. Westwood,
It is also uged that the property of the lessees of appellant is subject to unreasonable searches and seizures. In the case of People ex rel. Natch v. Reardon,
It is finally contended that the property of the appellant and its lessees is devoted to a public use without just .compensation, in this: that it is held pending the noticfe to the officers of the State required by the statute and pending the time of the determination by such officers of the liability to the succession of the property to be subjected to an inheritance tax. If the required notice is lawful and the determination of the question whether the succession to the property in the possession of the safety deposit company is subject to the payment of an inheritance tax is proper, then there is no infringement upon the constitutional provision, either State or national, which forbids property to be taken "for public use without just compensation. In the very nature of things, in the settlement of estates of deceased persons there must be some delay in determining who is entitled to receive the estate, and as we have heretofore held, when the appellant leases its safety deposit boxes and safes, it and its lessees must necessarily have contracted with reference to the inevitable fact that some of its lessees will die pending the continuation of their leases. This being true, we think it manifestly follows that appellant’s leases are made and the rent therefor is fixed upon the contingency that in case of the death of a lessee pending the lease there will be some delay in the delivery of the property of the lessee to the true owner by the appellant. The only damage that the appellant could incur in such cases would be the loss of box or safe rent during the time of said delay, which, upon a safety deposit box or safe which rents for five dollars a year, would be inconsiderable, and we must conclude, as to the appellant, that the question of box rent or safe rent is a matter that was taken into consideration when the lease was executed. As the lessee is dead, he clearly will be deprived of nothing by reason of such delay. Those persons who are to succeed to his estate take what they get only by force of the Statute of Descent and Statute of Wills, and as the inheritance or bequest which they receive comes to them burdened with the inheritance tax which the law places upon their right of succession, they necessarily take their inheritance or bequest subject to the costs, expenses and damages accruing out of the delays which must intervene before they may enjoy their inheritance or bequest. We therefore conclude that neither the appellant nor its lessees are, within the meaning of the law, deprived of property for a public use without just compensation.
We have given this case the patient care which its importance demands, and have reached the conclusion that section 9 of the Inheritance Tax law of 1909 is a valid and constitutional enactment.
The-decree of the circuit court will be affirmed.
Decree affirmed.
Farmer, Vickers and Cooke, JJ., dissenting.