Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1857-10-16
THE STATE TAX ON COLLATERAL lsHERIrAN

Auditor, in his last circular letter of instructions L
The commissioners Of the revenue collateral nheri
tances and devises were put down as subject to
tax OF two per cent in addition to the common tax OF
the property Inherited or devised. The Code OF Vir
einia, page PA, provides
SO. Where any estate. within this commonwealth
of any decedent, shal pass under his will or the law
regulating descends and distributions to any other
persons or for any other use than to or for the use
the father, mother, husband, wife, brother sister or
neal descdent of such decedent, the estate so pass
ing shall be subject to a certain per cent.
49, The per cent shall be governed by the law in
force at the time of the decedents DEATH"
Several years ago, q law was passed fixing the tax
at two per cent but this provision was entirely omit
ted in the tax bill passed at the last session of the Le.
gislature.
In the case of Salling's E1. vs. Ssing's devi,ees,
decided by Judge Thompson at the late term of the
Circuit Court Of Rockbridgs, Jno. b. Baldwin, Esq,
Oh staunton, as counsel for some of the dsvisees,
COMMENDED that there was no law in force taxing
coateral lnherltances and dev es, and that, il the
Ia" were in the statute books, j. would be void be-
cause unconstitutional. 1t will b. seen from the lucid
and able opinion of Judge Thompson, which We sub.
join, that the Court fully sustained Mr. Baldwin's
position that there is no existing tax on collateral in
heritances and devises, and intimated the opinion
that, such tax had been imposed by express egis
Iatve enactment it would be in vioaton!of the Con.
| stituton and therefore void.
We publish Judge Thompson's opinion that the
subject may attract the immediate attention of those
Interested. There is probably not county in the
State where the tax has not been assessed greater
less extent. In Rockbridge, alone are informed
| it amounts this year to upwards Of $1,000 Where
the tax has been assessed the 35.h Chapter Of the
Code provides the mode in which the assessment if
erroneous, may be corrected and snnulled, and the
money recovered, even if paid to the sheriff.
The County Court of Rockbridge, at its October
term, unanimously sustained Judge Thompsous opin-
ion by correcting, as erroneous, an assessment of q
collateral inheritance tax of upwards Of 5000 on the
land Of Joseph S. Baldwin, infant son of g. e. Bald.
win-the attorney for the commonwealth, d. f.
Moore Esq, admitting that the tax was authorized
neither by law the constitution. In Rockbrdge the
tax is efectually annulled.
We understand that the subject has been brought
to the attention of the Auditor and Attorney General
We may therefore expect an official opinion upon it..
In the mean time however the sheriffs must collect
the tax if assessed unless restrained by order Of
the County Court.
| The case Of the Rev. VIM. S. Plumsr formerly of
this city, reported we think in Sd Grsttsn, will aid
professional gentlemen in the investigation Of this
subject.
sALLING'S EXECUTOR VS.. SALLING's LE-
| GATEES, &c.
4th. In answer to the fourth
question propounded by the bill, whether the oollste-
raj inheritance tax Of per cent the legaces to
Aurelis E. Baldwin aud testators, nephews and
IL Al
general or residusry estate, and to the additional
question raised by the counsel OF these egaees In
the argument whether or not that tax is now legally
demandabs or chargeable upon any part of the dece
| dents estate, l am of opinion, in answer to the
question propounded by the executor that If the COL
| lateral Inheritance tax were now rather had been
| in existence in Sune, 1885, the date Of the WILL
it would have been payable out of the legaeies
and not out of the general or resduary estate. But
am further of opinion that, at the date OF the WILL
there was no law in existence imposing tax Oh COL
lateral nheritances, nor is there now, and that, con
sequenty, no such tax is payable either by the exc.
cutor, or the egatees, devseessupon the estate Of
| the decedent.
cons for the opinion have expressed to the nom
existence of any law imposing that tax in june 1876,
| or now.
The counsel for the iegatees and devisees object to
the payment of the tax upon two grounds First, be-
cause there is law in existence imposing the tax
and secondly, if there was the law would be uncon
stitutional and void. Unconstitutional and void first
because the power of taxation, under the head OF
I taxation and finance, in the new Constitution, (sec
tons % 49, "a and 25, article A., is limited and con-
fined to property real and personal, capitaton, on
incomes salaries and licenses; and that the transmits
sion of property by descent or devise, not property
or subject for oaptation nor income salary or II.
cense-and secondly If subject of taxation at alla
tax of two per cent upon It by the same law which
| imposes upon all other property than slaves a tax
of 40 cents on the slOO, only one fifth of the coste
raj inheritance tax, would be in violation Of the 22nd
section of the said article which prescrbes that taxa
ton shall be equsl and uniform throughout the Com.
monwesth, and all other property, other than slaves
| shall be taxed in proportion to it's value
This constitutional objection to the validity of the law
if it were now in existence, would merit and receive
grave and mature consideration; but having express
ed the opinion that it no longer exists whether lts
existence the result of accident or design,
casus omissus, shall decline to enter into its cons
derstion. For, if l am right in my conclusion that
| the law has expired and the Legislature have omit
ted, either by accident or design to reenact it, 1t
4 would be work of supererogaton to moot its con-
situtionalty and it may be that the necessity OF CON
sidering such a question may never arse. shaii'
| therefore, content myself with assigning the reasons
for the opinion that no law now exists imposing tax
! on collateral nherltances.
And tirstt is worthy of consideration that tax bills,
and bills for the appropriation of the public revenue,
laws, since the foundation of the Government; and
40 they have ever been, and still continue to be IN
| England, from whose institutions we have borrowed
| 40 much that is valuable in our own and this usage
practice of annual tax oils ana annual apptopra'
tons was not the result of accident or blind chance,
either there or here, but was the result OF wisdom,
forecast and sound policy. These bills were annual
during the two rst Constitutions, which provided for
annual meetings of the General Assembly.
| The last Constitution by establishing bienna!
| Legislatures, has rendered it necessary that they
should be biennial; but, except as TO the period or
length of their duration or existence, in no wise
conflicts with the expedieney or policy OF making
| these laws temporary biennial, instead Of periRa
| nent. There s no objection to enactlDg Perma.
nent laws in relation to the commissioners and
collectors of the revenue declaring the SUBJECTS OF
taxation, the mode Of assessment and the like but
| the levyipg or imposing by law the quantum OF tax
iannuai under the two fret charters should be ben.
| NAL under the last In the Code OF lSi9 we find
chapters 35 &c. 81, 80, 80 OF the former description,
intended to be permanent laws ana chaPtet ao OF he
description intended az the bill of the year OF the
enactment of the code. This chapter imposes tax
of two per cent. upon collateral nheritsnces. In the
session OF lS50-5l, p. tax bill is passed laying
additional taxes which was equivalent to re-enact-
ment, or was re.enactment by implication of the
4O,h chapter of the code The tax bill of 'J2 p. n,
imnoses taxes for year; lG lays tax of two per
cent on nheritances, and 90 rePeels chapter 4O Of
| the Code. The tax bill Of 1888, page 10,
imposes taxes Sec Is two per cent on decedents es
tates, and again repeals chapter 4O Of the Code
Acts of 1884, page 3, imposes taxes, sec l5 two
per cent on decedeuts estate Sec. ~ again repeals
chapter 40 of the Code. Sessions acts of 1866,
page IL, lays taxes but omits wholly to tax decs.
dents estates. A comparison of this act, clause by
clause, with that of the previous one 1881 would
favor the inference that the omissions was not acc
| dental or ipadvertent, but intentional. The number
inc of sections, the correspondence of sections 80
and 30 of the act of 1856 with sections IA and l6
of the act of 1854 rer6atim, parenthess proriso,
| and all, except as to the amount of the tax, favor
strongly the presumption that the fifteenth section of
the last mentioned act not overlooked, but omit.
ed intentionally. If the omission was designed, was
it because the law.givers were of opinion, that by
virtue of chapter ~ Of the code, or the last preced
| inp tax bill of 1854. The tax was still in force
| and its re.ensction was not necessary to CON
| tiuue it, or was it because of an Intention to
discontinue the taxi l think the most rationsl
inference s if the omission Intentional, the pur.
pose was to discontinue the tax. But the origin OF
the omission, whether in accident or design s imma-
eraI The question u.s. since it was omitted, Is Inc s1
| 4 tho NH hobe nf