State ex rel. Garth v. Switzler

Uantt, C. J.

This is an original proceeding in this court for a writ of certiorari to the judge of the *308 probate court of Boone county commanding Mm to send up the record of his proceedings in the matter of the assessment and levy of a collateral succession tax upon the estate of John C. Conley, late of said county, deceased. The writ was issued and made returnable to Division number 2 of this court, but owing to the importance of the questions involved and the fact that a similar writ had also been issued upon the application of L. R. Wilfley, executor of Susan E. Spear, against Judge Rassieur, judge of the probate court of the city of St. Louis, returnable to the Court in Banc, this cause was transferred to Court in Banc, and the records of the probate court in each case having been removed into this court, the two cases were heard together upon a motion to quash the proceedings for want of jurisdiction in said courts to assess and levy said collateral succession tax.

John C. Conley died in Boone county, Missouri, on the sixth day of December, 1896, leaving an estate consisting of realty in this and other States and of bonds, notes, certificates of stock, and other securities. His will, dated February 18,1896, was duly established and admitted to probate by the probate court of Boone county on the seventh of December, 1896. The said testator was never married. He made a bequest of $20,000 for charitable purposes and gave the remainder of his estate in different amounts to his collateral relatives. He'gave some special legacies of a certain amount and after the payment of various' special bequests the residue of the estate is given by his will to certain nephews and nieces named in the residuary clause. Letters testamentary were duly issued to the relators, who qualified as executors of the will on the fifteenth of December, 1896, and filed their inventory on the eleventh of January, 1897.

The probate court, on the thirtieth of August, *309 1897, entered an order of record, reciting the death of said John C. Conley and the probating of his will, and setting out the terms thereof, the date of letters testamentary and of the filing of the inventory, and over the protest of the relators (who waived formal notice of the proceedings, but objected to the right of the court to make such assessment), proceeded to fix the value of said estate, for the purposes of the collateral succession tax, under the act of April 1, 1895, and the amendatory acts of 1897. The court found that the sum of $20,000 was given by the will to trustees for charitable purposes; $18,391.31 of the estate will be required to pay the debts of the testator (so far as appeared up to the date of that order), and other legal demands; that the real estate in the State of Missouri was of the value of $45,660, and that the personal property of the estate was of the value of $182,919.34, making a total valuation of $228,579.34. The court deducted from this amount, the sum of $20,000 given for charitable purposes, and $18,391.34 required to pay debts and expenses of the administration, and held and determined that the clear market Value of all of said property, subject to such tax, was.$190,188; and that said amount was subject to the payment of a collateral succession tax of $5 for each and every $100 of such sum up to $10,000, and $12.50 for every $100 in value in excess of said sum of $10,000. Eighty-five shares of stock in the bank of Hico, Texas, .of the par value of $8,925 was included in the above valuation. The court then levied and charged said estate with a total tax of $23,023.50 and ordered the executors to pay the same. All these facts appear upon the face of the record of the probate court. A similar state of facts exists as to the tax on Susan E. Spear’s estate, in all material respects.

The constitutionality of the act of the General *310 Assembly of Missouri entitled “An act providing for the endowment of the State University, and for the establishment and endowment of free scholarships of merit therein in each county,” approved April 1, 1895, and of an act of the General Assembly entitled “An act to amend an act passed by the Thirty-eighth General Assembly of the State of Missouri entitled ‘An act providing for the endowment of the State University and for the endowment of free scholarships of merit therein in each county;’ by adding a new section after section 1 of said act to be numbered section la, which new section shall read as follows,” approved March 16, 1897, is directly assailed in and by these proceedings. The proposition of relators is that both the act of April 1, 1895, and the amendatory act of March 16, 1897, are void because in conflict with various provisions of the Constitution of Missouri and the fourteenth amendment to the Constitution of the United States.

No question is raised as to the power of this court by certiorari to supervise the proceedings in the probate courts, and if their action in levying said taxes is found to be in excess of their powers, to quash their proceedings, and we have no doubt of our power to do so.

At the risk of being deemed prolix we will insert so much of the acts as bear directly upon the questions raised. The act was passed in 1895, and amended by two acts passed in 1897. As amended it providés, among other things, as follows:

Sec. 1. That all property conveyed by will, or by the death of an intestate, to any person other than the father, mother, husband, wife or direct lineal descendant of the testator or intestate, except property conveyed for some educational, charitable or religious purpose exclusively, shall be subject to the payment *311 of a collateral succession tax of $5 for each and every $100 of the clear market value of such property.

Sec. 2. That in addition to the fees now provided by law no corporation shall be organized under the laws of this State, and no foreign corporation shall do business in this State, unless the incorporators shall, upon filing the articles of association, pay to the State treasurer, in trust for the State of Missouri, to be disposed of as hereinafter provided in this act, the sum of twenty-five hundredths of a dollar for every thousand dollars of the capital stock of such corporation as a franchise fee; and a like franchise fee shall be paid in the same manner on every thousand dollars of the increase of the capital stock of any corporation.

Sec. 3. That every manufacturer of patent medicines shall annually pay a license tax of twenty-five dollars.

Sec. 4. That all moneys, which may hereafter escheat to the State shall be distributed in the manner provided by this act.

Sec. 5. That all taxes, fees or moneys received under this act by any county official shall be paid during the first week of the following month to the county treasurer, who shall credit three fourths to a fund hereby created to be known as “The State University Scholarship Fund,” and remit the remaining one fourth to the State treasurer: and from all money received directly by the State treasurer under this act, he shall monthly reserve one fourth and remit the remaining three fourths to all the county treasurers of the State, to be credited to “The State University Scholarship Fund” of such counties.

Sec. 6. That all moneys received by the State treasurer to be retained by him under this act shall be deposited in the State treasury to the credit of the “seminary fund” as provided by law.

*312 Sec. 7. That all moneys received by the county treasurer of each county to be credited to “The 'State University Scholarship Fund” shall be forever kept and preserved as a sacred permanent fund, and shall be invested and loaned in the manner provided in this act.

Sections 8, 9 and 10 of the act are in the following words:

“Sec. 8., The inoome of the moneys in ‘The State University Scholarship Fund’ shall be collected annually, and one fourth of the same added to the principal, and the remaining three fourths shall be faithfully appropriated for establishing and maintaining free scholarships in the State university, the amounts and terms of which shall be fixed and changed from time to time, as may be' necessary, on the written order and resolution of the board of curators of the State university.

“Sec. 9. On the first week of August of each year, beginning with the first Monday after due notice thereof, as prescribed by the county court, in two newspapers of each county, representing different political parties where such newspapers exist, there shall be held at the courthouse in the county seat, an examination of all applicants qualified under the law to be students of the university. Such applicants shall be actual residents of the county, and such examinations shall be conducted by three examiners, one of whom shall first be appointed by written notice to the county clerk by the president of the board of curators of the university during the month of July, and one selected thereafter by the county court of another political faith, and the third selected by the agreement of the two so chosen, with power in the county court, or the presiding judge thereof in vacation, to fill all the vacancies in the position of examiner; and such examination shall be writ *313 ten, and shall meet the requirements for entrance in the academic department of the university. Provided, that the duties imposed on county courts or the judges thereof, by this section, shall be discharged in the city of St. Louis by the mayor;

“Sec. 10. Those applicants passing the best and most meritorious examinations, to the number of scholarships established in each respective county, shall be awarded such scholarships, and be entitled thereon to enter free of matriculation fees, any department, school or college of the university, and have paid to them in equal monthly instalments while attending the university, the sum provided by the scholarship so awarded, for defraying the expenses of such attendance. Provided, that no applicant shall be qualified to receive such scholarship unless such examiners shall be satisfied that the applicant is dependent upon his own exertions for his education, and financially unable to otherwise obtain the same.”

By comparison of the act thus revised and amended in 1897 with the original act of 1895, it will be seen that the progressive feature of the original act, to wit, the increase of seven and one half per cent on amounts of over $10,000, is repealed and specific provision is added for valuation of inheritances and enforcing the collection ,of the tax. Amendments are also made to sections 2 and 3 in matters not material in the present proceeding, while in section 5, the distribution of the funds collected by the State treasurer in trust under the provisions of the act is so regulated that it is made in the different counties on the basis of representation in the General Assembly.

Lying at the threshold of this discussion is the objection which goes to the very substance of this enactment. It is insisted that the tax provided in the act is not levied for a public purpose within the mean *314 ing of section 3 of article X of the Constitution of Missouri, which ordains that ‘‘taxes may be levied and collected for public purposes only.” This provision of our Constitution accords with the definition of a tax as expounded by the courts and law-writers of this country. Judge Cooley in his work on Constitutional Limitations, p. 587, says, “taxes are burdens or charges imposed by the legislature upon persons or property to raise money for public purposes.” Judge Coulter, in Northern Liberties v. St. John’s Church, 13 Pa. St. 104, said: “I think the common mind has everywhere taken in the understanding that taxes are a public imposition, levied by authority of the government for the purpose of carrying on the government in all its machinery and operations, that they are imposed for a public purpose.” The Supreme Court of the United States in Loan Association v. Topeka, 20 Wall. 655 , in a luminous opinion by Judge Miller, after a review of the authorities and a discussion of the power to tax, laid it down as an established principle that “beyond cavil there can be no lawful tax which is not laid for a public ptirpose.” In the Matter of the Mayor of New York, 11 John. 80 , the court said: “The word ‘taxes’ means burdens, charges of impositions put or set-upon persons or property for public uses, and this is the definition which Lord Coke gives to the word ‘talliage’ (2 Coke Ins. 532), and Lord Holt in Carth, 438, gives the same definition in substance of the word tax.” Chief Justice Appleton in Allen v. The Inhabitants of Jay, 60 Me. 124 , says, “A tax is a sum of money assessed under the authority of the State on the person or property of an individual for the use of the State. Taxation by the very meaning of the term implies the raising of money for public use and excludes the raising if for private objects and purposes.” Judge Jere Black, in Sharpless v. Mayor, 21 Pa. St. 167, says: “I concede that a law authorizing *315 taxation for any other than a public purpose is void.” We construe section 3 of article X of our Constitution as a direct inhibition upon the General Assembly to levy a tax for a private purpose, or for the benefit of any private individual. The language used is not susceptible of any other construction.

We shall assume without further comment that if the act under review authorizes the levy of a tax, that tax must be for a public purpose, otherwise it is a direct violation of the Constitution of this State. .Does it authorize a tax? The learned counsel of the probate judges argues that it is not strictly a tax. He says: “Although called a tax it is not properly so, but a bonus or price exacted from the collateral kindred and strangers to the blood as the condition upon which they take the estate whose owner is dead.” But even if such a distinction can be maintained, the contention does not reach the vital point upon which the relators insist, namely, that by whatever name this burden, or excise, tax, bonus or exaction from the citizen, may be called, still it falls within the purview of the word “taxes” as used in the third section of article X of our Constitution. The word in that section is used in its generic sense as expounded by lexicographers, judges and lawyers long before its use in our organic law. In the sense that taxes can be levied only for a public purpose, that word includes every character and kind of tax, general or special. The power of the State to demand such a bonus is referable, and referable only, to the taxing power, so that whether this “collateral succession tax” as it is denominated by the legislature, be termed a tax or a bonus, an excise, a price imposed for the privilege of taking an estate by will or inheritance, it must be levied or exacted for a public purpose only under our Constitution, and under those limitations on the taxing power which exist in the very nature of our *316 free institutions. Miller on the Constitution of the United States, 242. Outside of express constitutional inhibitions there are limitations upon the powers of every branch of our governments, State and Federal. Every branch has its limitations short of absolute power. The Supreme Court of the United States expressed it in these words: “Ño court would hesitate to declare void a statute which enacted that A. and B. who were husband and wife to each other, should be so no longer, but that A. should thereafter be the husband of C., and B. the wife of D. Or which should enact that the homestead now owned by A. should no longer be his but should henceforth be the property of B.” Loan Association v. Topeka, supra. And in the same case, the court further said: “To lay with one hand thepower of the government on the property of the citizen and with the other to bestow it upon favored individuals to aid private enterprises and build up private fortunes, is none the less a robbery because it is done under the forms of law and is called taxation. This is not legislation. It is a decree under legislative forms. ”

That the State of Missouri for public purposes may assess and levy taxes upon the succession or devolution of property under our inheritance laws or statute of wills, subject only to the prohibitions of the Constitution of the State and the Constitution of the United States, we have no doubt whatever. The constitutionality of such a tax has been too long affirmed by the courts of last resort to admit of doubt, but we have not found nor have counsel pointed to any statute which has received the sanction of the courts, which levied such a tax for other than a plainly public purpose. Is the purpose for which the act in question authorizes this collateral succession tax a public one? Perhaps few branches of the law have been more carefully considered than that which this inquiry suggests. *317 The duty and power of imposing taxes is a legislative one and the presumption is and must be that the legislature will levy a tax only for a public purpose, and the courts are justified in- interposing only when it clearly appears that the Constitution, which is the supreme law governing both the legislature and the courts, has been or will be violated by the enforcement of the legislative purpose. What is and what is not a public purpose is not always easily determined. The Supreme Court of the United States in Loan Association v. Topeka, 20 Wall. 655 , states the rule to be, that “In deciding whether in a given ease, the object for which the taxes are assessed falls upon the one side or the other of this line, the courts must be governed mainly by the course and usage of the government, the objects for which taxes have been customarily and by long course of legislation levied, what objects or purposes have been considered necessary to the support and for the proper use of the government, whether state or municipal. Whatever lawfully pertains to this and is sanctioned by time and acquiescence of the people, may well be held to belong to the public use and proper for the maintenance of good government, though this may not be the only criterion of rightful taxation.” The Supreme Court of Michigan, in The People v. Salem, 20 Mich. 452 , with signal ability and thoroughness discussed this question and came to the conclusion that “the term ‘public purpose’ as employed to denote the objects for which taxes may be levied, has no relation to the urgency of the public need, or to the extent of the public benefit which is to follow. It is, on. the other hand, a term of classification to distinguish the objects for which, according to settled usage, the government is to provide, from those which by the like usage are left to private inclination, interest or liberality.”

*318 How these general principles have been applied, reference to the judgments of the courts will best determine. In Loan Association v. Topeka, 20 Wall. 655 , a statute of the State of Kansas, which authorized a town to issue its bonds in aid of the manufacturing enterprise of private individuals, came before the Supreme Court of the United States, and it was held void because the taxes necessary to pay the bonds would if collected be a transfer of the property of individuals to aid in the projects of gain and profits of others, and not for a public use in the proper sense of these words. In Allen v. Jay, 60 Me. 124 , a town at a meeting legally called voted to loan its credit to a firm to the amount of $10,000 and issue its bonds for that sum, provided the firm would invest $12,000 to $13,000 in a steam saw mill with a run of stone to grind meal and maintain it for ten years and the legislature afterward passed an enabling act authorizing said loan, but the Supreme Judicial Court held the act unconstitutional and void because not for a public use. All the buildings on a very large' portion of the city of Charleston, South Carolina, having been destroyed by fire, the city council passed án ordinance providing for the issue of bonds by the city to be loaned the owners to build and rebuild the waste places and burnt districts. The legislature afterward, by an act reciting the ordinance, fully confirmed and authorized the issue of said bonds, known as “fire loan bonds,” and certain persons bought them. Afterward suit was brought against the city to collect them but the Supreme Court of the State held said bonds were issued for a private purp'ose and void; that the taxing power could only be exercised for some public purpose. In November, 1872, a great conflagration swept over a large portion of the city of Boston. The legislature of Massachusetts passed an act authorizing *319 the city of Boston to issue bonds and loan the proceeds on mortgages to the owners of the land to enable them to rebuild their houses. The Supreme Court held the act void; that it was not for a public object in a legal sense.

In Curtis’s Adm’r v. Whipple, 24 Wis. 350 , the legislature empowered the town of Jefferson to raise a sum by taxation to be paid to the treasurer of “The Jefferson Liberal Institute,” a private educational institution, but the Supreme Court held the act void, the tax being for a private purpose, and a like conclusion was reached in Jenkins v. Andover, 103 Mass. 94 . This court in Deal v. Mississippi Co., 107 Mo. 464 , held section 5697, Revised Statutes 1879, void because it gave a bounty to private individuals for growing forest trees upon their own lands. In each and all of these cases it was held that the fact that the public might be incidentally benefited by rebuilding a burnt city and by the establishment of manufactories and schools, would not sustain the tax. Every factory, every private school or academy, every industrial enterprise which furnishes opportunity for labor and the earning of wages benefits a community in one sense, but the indirect good which inures in this way furnishes no basis for taxation of other business to build up such occupations. Learned counsel for the respondents do not seriously controvert this general proposition, but meet it with the assertion that the State university is a State institution established and maintained for a public purpose. This is at once conceded by the relators because the people of Missouri in their sovereign capacity have recognized and declared in their organic law that “a general diffusion of knowledge and intelligence is essential to the preservation of the rights and liberties of the people,” and imposed upon the legislature the duty of establishing and maintaining “free public schools for *320 the gratuitous instruction of all persons in this State between the ages of six and twenty years.” Art. XI, sec. 1, Constitution, 1875. Moreover, by section 5 of article XI of the Constitution, the G-eneral Assembly is enjoined, whenever the public school fund will permit and the actual necessity of the same may require, “to aid and maintain the State university now established with its present departments.” By section 6 of the same article of the Constitution a fund is provided, “the annual income of which, together with so much of the ordinary revenue of the State as may by law be set apart for that purpose, shall be appropriated for the maintenance of the free public schools and the State university.” If, then, this collateral succession tax is levied to support the State university unquestionably it is for a public purpose.

At this point, however, the real contention in this case arises. Relators insist that the fund sought to be accumulated by this tax is not a provision for the support of the university, but is a tax to raise a fund the proceeds of which must be paid to certain favored individuals to enable them to buy food and clothing for their own use while pursuing their studies at the university. The controversy must be determined by the act itself. By reference to the summary of its various sections as hereinbefore set out, it will be observed that three fourths of all the moneys raised by this tax was intended to create “the State university scholarship fund” of the several counties of this State to be kept as a permanent fund to be invested so as to bear inter-\ est. This interest is to be collected annually and one fourth of it added to the fund and the remaining three fourths to be appropriated for establishing and maintaining free scholarships in the university, the amounts and terms of which are to be fixed by the curators of the university. By sections 9 and 10 provision is made for *321 competitive written examinations on the first week of August in each year, of actual residents of each county who shall meet the requirements for entrance in the academic department of the university, provided however that no applicant shall be eligible to receive such free scholarship unless the examiners “shall be satisfied that the (said) applicant is dependent upon his own exertions for his education and financially unable to otherwise obtain the same.” Having thus determined who may be the beneficiaries of this tax and segregated them from the great mass of citizenship, and awarded them these free scholarships, section 10 of the act provides-“they shall be entitled to enter thereon free of matriculation fees any department, school or college of the university and have paid to them'in equal monthly installments while attending the university, the sum provided by the scholarship so awarded for defraying the expenses of such attendance.”

Deferring for the present any discussion of the proposition that one fourth of the tax may be sustained because it is directed to be paid into the State treasury for the benefit of the “seminary fund,” an admitted public use, we direct our attention to the arguments for and against the “free scholarship fund.” It is perfectly evident we think that no distinction can be maintained between the fund and its annual increment. It can not be true that this fund is a state or public fund under this act while the whole beneficial use and interest arising therefrom is private. Such a distinction is illogical and unsound. The fund is created for the sole purpose of producing the interest to be derived from it and it is incredible to believe that the legislature would have provided the tax. at all if it was n ot to obtain the interest to be used for the maintenance of the scholars. The fund and the interest are inseparable. *322 Counsel for the curators urge that this statute can only be properly construed by keeping in view “the historical setting” of the university and “its historical genesis.” They assert that university education is a proper, indeed one of the primary objects, for which public taxation maybe levied, and that the extent of such taxation in aid of higher education is for the legislature alone to determine; that the Constitution having established free public schools and the university, the legislature can go further and furnish free support of the children while attending these schools and the university. It is true that the learned counsel for the curators are not altogether in harmony on this proposition. Some of the learned counsel for the curators boldly argue that if the legislature can furnish free scholars and free teachers, why can it not go further and furnish a free support to the children who attend these schools if that is deemed necessary to make the system a success, whereas their colleague draws the line at the free support of the students of the university and denies the right to furnish free living to the children attending the common schools, “because the law recognizes and enforces the parental obligation of support during the period of elementary education.” Some of' the learned counsel for the curators admit that such a support of the students is paternalism in its most pi-onounced form, but say it is “not of a hurtful or dangerous hind; that is only paternalism of the State, not of the Federal government.” Paternalism, whether State or Federal, as the derivation of the term implies, is an assumption by the government of a quasi-fatherly relation to the citizen and his family, involving excessive governmental regulation of the private affairs and business methods and interests of the people, upon the theory that the people are incapable of managing their own affairs, and is *323 pernicious in its tendencies. In a word it minimizes the citizen and maximizes the government. - Our Federal and State governments are founded upon a principle wholly antagonistic to such a doctrine. Our fathers believed the people of these free and independent States were capable of self-government; a system in which the people are the sovereigns and the government their creature to carry out their commands. Such a government is founded on the willingness and the right of the people to take care of their own affairs and an indisposition on their part to look to the government for everything. The citizen is the unit. It is his province to support the government, and not the government’s to support him. Under self-government we have advanced in all the elements of a great people more rapidly than any nation that has ever existed upon the earth, and there is greater need now than ever before in our history of adhering to it. Paternalism is a plant that should receive no nourishment upon the soil of Missouri. While the exigencies of this case may require the operation of such a principle we are sure its germs are not to be found in the Constitution of this State, nor in the spirit of its people. Whatever other fault the Constitution of 1875 may have, it is certain that its framers sought most sedulously to curb the power of those clothed with authority to legislate in behalf of favored classes, and to leave the people the largest possible control over their own affairs. Especially has the power of taxation been jealously hedged about and limited. The same authority is found in the Constitution to levy taxes to clothe and feed the children who may desire to attend the free public schools as there is to raise money by taxation to be handed over to young men and young women to be used by them in supporting themselves while they acquire what is *324 termed “the higher or university education,” but ive find no warrant for either in the organic law of this State, or in the character of our government.

It is one thing to provide for the establishment and maintenance of a State university, and a system of free public schools, the State through its own officers, agencies and municipalities constructing and owning the buildings and apparatus and employing the teachers as public functionaries, responsible under her own laws for the discharge of their duties; and a wholly different thing to support private individuals who attend the university and public schools by public taxation. But it is said that nothing is more common than the endowment of free scholarships as a part of the endowment of a university. This may be true of the universities of Europe, and individual instances are to be found in this country, where some great benefactor of the race has out of his own bounty provided such scholarships, but these examples furnish no - guide to the free States of this Union, clearly not to the legislature of Missouri under its organic law. The act under consideration endows the scholar, not the university. It provides in unmistakable terms that a fund shall be raised by taxation and paid over to students attending the university for their support while so engaged. It is a pure and simple gift of public money by the State to private individuals for their own private use in plain violation of section 46, article IY of the Constitution, which prohibits the legislature from granting “public money to any individual, association of individuals, or other corporation whatsoever.” We hold that when the Constitution provided for the establishment and maintainance of the university, it conferred authority to support an institution belonging to the State, and this grant is not to be extended to the unlimited support of the pupils who may *325 attend or desire to attend that school. In obedience to the mandate of the Constitution, the legislature has made generous provision for the university and public schools, and the opportunities for education are commensurate with the greatness of the commonwealth, and the needs of the people. Neither the Constitution nor a sound public policy demands that the State should indirectly stifle all motive for individual effort and laudable ambition. Free common schools adorn every school district in the State. Splendid normal schools are distributed to its different sections, and the doors of the university are practically opened to every thrifty, energetic young man and woman in the State. The State has not been’niggardly with its children; every -proper stimulus is set before them. But here she stops, and says to the citizen, the right to lay further burdens for your private benefit is exhausted. Under equal and just laws, by your own self-reliance and energy, you must win the rewards of labor and the honors of the State.

It is only necessary to add that counsel for the curators do not. attempt to maintain this tax on the theory that the young men and women who would obtain these scholarships are paupers in the meaning of the law. Even without this admission, it is perfectly apparent that the act by its terms does not confine this pension to the children of poor persons who may in a legal sense be denominated paupers. The class of ambitious young men and women who could avail themselves of the benefits of this act would resent such a designation and scorn this proffered aid if. to obtain it they must first be classed as paupers. It is perfectly clear that the tax is not levied upon any such principle. If it were, it would collide with another fundamental principle. It would be class legislation. Says Judge Cooley in his work on taxation, page 121: *326 “To justify taxation for the purpose of education, the-rules under which the people shall be admitted to the privileges given must not be invidious and partial, but must place all parties on a plane of practical equality. The rule is substantially the same here that applies in the apportionment of taxes; equality must be the aim of the law, and it must be assumed that the State has no special favors to bestow upon privileged classes. ... It would not be competent to-single out some one class of the community and exclude them from the benefits of the public schools on arbitrary grounds.”

Our conclusion is that this tax is levied for a purely private purpose, and for that reason it is in contravention of the Constitution of Missouri.

This tax is assailed in another vital point. Relators assert it is void for want of uniformity. John C. Conley, one of the testators, died on the sixth day of December, 1895. His will was probated February 18, 1896. Susan E. Spears, the other testator, died June 10, 1896. It is essential that we determine whether the act of 1895 or that of 1897 governs. Is the tax to be levied under the act of 1895, if valid, or the act of 1897, which was enacted long after the death of both of these testators? There is nothing in the act of 1897 which gives it a retrospective operation, and if there was, it would be in direct conflict with the Constitution of Missouri, which prohibits retrospective legislation.. We think it must be plain that the act of' 1895, adopted prior to the death of these testators, if valid, must control and not the act of 1897, enacted after their deaths. This, we take it, is the usual construction. By the terms of each the devolution of the-property and the right- of the State to tax accrues immediately upon the death of the testators. In re Seaman’s Estate, 41 N. E. Rep. 401; In re Embury’s Estate,, *327 45 N. Y. Sup. 821; In re Estate of Roosevelt, 25 L. R. A. 695; Const. of Mo., art. II, see. 15; Leete v. Bank, 141 Mo. 584 .

Looking to the act of April 1, 1895 (Laws of Mo. 1895, p. 278), for authority for this tax, we are met with the objection that this tax is also void because the said act is in violation of section 3 of article X of the Constitution of Missouri and of the fourteenth amendment to the Constitution of the United States, and section 4 of article X of the Constitution of Missouri.

Of these in their inverse order. As already remarked no doubt longer exists that it is competent for the legislature to levy a tax upon the succession of estates. It is quite universally held that such a tax is not a tax upon property in the ordinary sense, but is in the nature of an excise, or bonus, exacted by the State upon the privilege or right to inherit or succeed to an estate. It is not necessary at this time to enter upon an examination of the extent of this right on the part of the State, nor to approve or disapprove the extreme views expressed by some of the courts. While conceding the right to tax, our duty now is to ascertain if we can, what was the purpose of the legislature in enacting this law. A primary and safe rule of interpretation of a statute is to endeavor to gather the legislative intent from the words they used. Gardner v. Collins, 2 Pet. (U. S.) 93; Brewer v. Blougher, 14 Pet. 178 . The General Assembly has declared that it intended to levy a “collateral succession tax” and we all agree that by whatever name this exaction may be called it is referable to the taxing power of the State. The controlling question is, upon what did it authorize that tax to be levied, upon the property or estate of the deceased person, or upon the right or privilege of his beneficiaries to receive his estate by inheritance or devise ? If upon the latter, it is settled by the great *328 weight of authority that it does not fall within the regular ordinary taxation upon property, which our Constitution requires shall be in proportion to its value. Recurring then to the language of the act of 1895, we find that the ordinary’ machinery, so to speak, was not prepared for enforcing the act of 1895, as for enforcing other delinquent taxes. It ordained that &■ tax of $5 for each and every $100 of the clear market value of such property, where the money or property shall be $10,000 or less in value, and where the money or property affected exceeds $10,000 in value the same shall be subject to a tax of $5 for each and every $100-of the clear market value thereof up to and including $10,000 in value, and a tax of $7.50 in addition for every such $100 in value in excess of $10,000, and gave a first lien upon the property affected, but provided no method of valuation. The mode of procedure was amended in 1897 by providing a means of ascertaining the value of such estates which had been overlooked in the act of 1895, and a new section to be known as section la, which provides that it shall be the duty of the judge of the probate court in this State, whenever the inventory and appraisement of any estate is filed, which is subject to the payment of a collateral succession tax, to immediately levy upon and charge such estate with the amount of such collateral succession tax, and require the executor, administrator or beneficiary to pay the same, etc.

A “succession tax,” as, the words indicate and the history of such taxes clearly establishes, is an excise or duty upon the right of a person or corporation to receive property by devise or inheritance from another under the regulation of the State. Wherever properly laid, this is its distinguishing feature in contradistinction from a property tax. The language of these two-acts of 1895 and 1897 is very much involved, and more- *329 or less doubt must be felt in interpreting the meaning of the legislature, and this is true of other acts in other States. When it is clear that the tax is upon the succession it is computed, not on the aggregate valuation of the whole estate of the decedent, considered as the unit for taxation, but on the value of the separate interest into which it is divided by the will or by the statute laws of the State, and is a charge against each share or interest according to its value and against the person entitled thereto.” That is to say, it is a burden on each person claiming succession, measured by the value of his interests and collectible out of his interest only. Accordingly in New York, after whose statute the act in question seems to have been in several respects patterned, great difficulty was experienced in construing the law, but the act being sustained as levying a succession tax, it was ruled in the matter of Hoffman’s Estate, that when the will created contingent estates the executors could not pay the tax u ntil the expectancies became fixed and actual; in other words, being a tax upon the person receiving the share of the estate, it did not accrue until that person was finally ascertained, and that the State could only get its taxes when the legatees or devisees' obtained their property. Hoffman’s Estate, 143 N. Y. 327 . And in the matter of Roosevelt, 143 N. Y. 120 , in answer to the contention of counsel for the State that while it might be considered a hardship to compel annuitants to pay a tax upon an interest that they might never receive, it was the fault of the statute and the tax could only be postponed by giving bond, the court of appeals answered: “This contention admits away the entire case of the State. It is not to be assumed that the legislature intended to compel the citizen to pay a tax upon an interest he may never receive.” Until the vesting of the estate “the power to tax does not exist.” *330 It is obvious that the tax is upon the transfer by will or devolution by inheritance, and in the absence of a transfer and a transferee there is no basis for a succession tax in its true sense, as it comes to us in the history of jurisprudence and of nations. With these essential characteristics in view, can the acts of 1895 and 1897 be said to have levied a succession tax.

Section la requires the tax to be levied upon the appraised value of the whole estate left by the deceased. The tax is at once levied upon that estate, and the personal representatives of the deceased, not the devisees and legatees, are required to pay the tax. How such a tax differs from general taxes upon the property of the deceased under our system we are not able to state. The mere calling of such a tax a succession tax does' not make it different from an ordinary tax upon property when the effect and operation are identical with an ordinary property tax. This tax is collectible out of all property devised by will or descending to any person other than the father, mother, husband, wife or direct lineal descendant, whether the estate of the ancestor, devisor or grantor is solvent or insolvent. If insolvent there is nothing to which the heir or devisee or legatee can succeed,.and yet upon the theory of a succession an onerous tax is added to the charges.against an estate and payable in advance of other claims. The language of the Supreme Court of Wisconsin in State ex rel. v. Mann, 76 Wis. 478 , seems exceedingly appropriate upon this point: “A succession tax would necessarily be imposed upo n the respective parties thus succeeding to such residue. But the tax in question is not upon such succession but upon the whole estate at its appraised valuation, regardless of whether it is solvent or insolvent. In case of an insolvent estate, nothing would be left after the payment of debts for transmission, and in most estates there are likely to be sufficient debts to *331 reduce the amount of transmission far below the amount of such valuation. Besides, the amount of such tax is graduated by the amount of such appraisal and is to be paid by the executors or administrators before or at the time of filing such appraisal, notwithstanding they may only be interested as such officials and never succeed to any of such estate. Manifestly, the burden imposed is not a succession tax, but a tax upon the whole estate, regardless of whether it is solvent or insolvent.” The New York act (Laws 1896, chap, 908, sec. 225) provides for a refunding of a proportionate part of the tax in case debts are allowed after its payment, and it was owing largely to this provision that that act was sustained, but no such provision is found in our acts of 1895 and 1897. In re Westburn's Estate, 46 N. E. Rep. 315.

We think the language of this act, whatever conjecture we may indulge as to the intention of its author, imposes a tax directly upon the property of the decedent, and not upon those who may succeed to his estate, and it must be conceded that if it is a property tax it is unconstitutional because it subjects this estate to an additional property tax to that levied upon all other like property in the State for the same year, and is not levied in proportion to its value.

But in no event can the act of 1895, which governs these two cases be upheld, because the tax authorized by it is not “uniform upon the same class of subjects within the territorial limits of the authority levying the tax.” Section 3, article X, Constitution of Missouri. The class of subjects to be taxed under this act is the succession or inheritance of property by collateral kindred or devisees other than those named in the statute as exempt from its imposition. It is not necessary to determine what would or would not be proper classification under this act in all cases, but it *332 is perfectly clear that when the tax is levied upon the property as under this act, uniformity is only attainable by levying the same per cent upon all property belonging to persons bearing the same relation to the decedent. A law which levies five per cent upon one cousin or uncle whose legacy is $10,000, and five per cent upon the first $10,000 of a legacy of $20,000 bequeathed to another cousin of the same degree, and twelve and one half per cent upon the remaining $10,000 thereof, violates the constitutional principle of uniformity.. It is an arbitrary classification without rhyme or reason. Such was the decision of the Supreme Court of Ohio in State ex rel. Schwartz v. Ferris 53 Ohio St. 314 , 30 L. R. A. 218, upon a provision of the Constitution of that State substantially like section 3', article X, of the Constitution of Mis-, souri.

It is significant that in New York, Maine, Maryland, Virginia, Pennsylvania and Massachusetts, in which inheritance taxes are sustained, the statutes only authorize a uniform rate .of taxation. The constitutional guarantee of uniformity upon the same class of subjects would avail but little if the legislature can arbitrarily vary the classes as' often as the amount of property devised or transmitted by inheritance shall differ. If such a rule obtain, the classes will be innumerable, and the Constitution a dead letter. Where the amount of property received is made the basis of the tax, uniformity can only be attained by levying the same per cent upon the property of each beneficiary under the will or by inheritance. While the legislature might perhaps distribute the collaterals according to the different degrees of kinship to the decedent or testator or grantor, and levy a different rate upon the different degrees, yet when it ignores all such natural classification and.makes the amount of *333 money received by each the test of classification it runs counter to another principle that is well nigh universally accepted that a uniform rate of taxation upon every man’s property secures equality of burden. To levy a different rate simply because the amount of each man’s holdings is different would produce favoritism and destroy that principle of equality before the law which is the boast of free government. If it be urged that the one receiving the larger bounty enjoys a greater privilege, still the principle of uniformity answers that the value of his right to receive is in direct proportion to the value of the property to which he succeeds, and must, if taxation is to be uniform, be taxed in that proportion or according to one common rate. In State v. Hamlin, 25 L. R. A. 632, the Supreme Court of Maine in upholding a tax consisting of a uniform per cent, said: “The constitutional requirement of uniformity is satisfied by a tax on the transmission of property by will or descent to strangers and collaterals when it is uniform as to the entire class affected, although other classes of persons are exempted from the tax.” See, also, R. R. Tax Cases, 13 Fed. Rep. 722.

Other grave objections are made to the act, one challenging its title as containing two distinct subjects; another that the various subject-matters found in the body of the act are not indicated at all in the title. These objections have been presented with the greatest ability and have been duly considered, but inasmuch as the propositions already decided go to the very substance of the act we deem it unnecessary to pass upon the point as to the title of the act. To respond to the very thorough discussion of the point by counsel would extend this opinion unnecessarily to toó great length.

The act of 1895 must be held void, and it follows that’the probate courts of Boone county and of the *334 city of St. Louis, were wholly without jurisdiction to levy the taxes upon the estates of John 0. Conley and Susan E. Spear, and their proceedings in that behalf must be quashed, and it is so ordered.

Sheewood, Buegess, Robinson and Beaoe, JJ., concur; Williams and Maeshall, JJ., having been of counsel, take no part in the decision of the case.