The Portland daily press., 1894-07-28

1t is evident, therefore, that these consti-
tutional requirements do not include every
species of taxation, but all special cases like
those referred to are, by implication, ex-
cepted.
The tax provided for in the statute under
consideration is clearly an excise tax Scho-
ley V. Rev, % Wall. 346. The whole tenor
and scope of the act is one of excise, and not
tax upon property, as that term is used in
the constitution. 1t is not laid according to
any rule of proportion, but is laid
upon the interests specified in the
act, without any reference to the whole
amount required to be raised for public pur-
poses, or to the whole amount OF property in
the State liable to be assessed for public pur-
poses. 1t is true that the act contains some
language indicating tax upon property; but
it should be construed according to its essen
tia principle, object and effect. Substance,
and not form or phrase, Is the important
thing. All exactions of money by the gov
eminent are taxes; but they are not all levied
by assessment upon values. The latter class
refers to the burdens recurring periodically,
which are assessed upon valuations of prop
erty, made at stated intervals. Dahforth, j.,
IN delivering the opinion Of the court in
statev V. Telegraph Company, supra. said:
'Such is the variety and extent OF meaning
attached to the word tax, or taxes, that no
argument either way can be drawn from its
use. 1t has been at different times applied to
nearly if not quite every burden imposed
upon persons, properly or business for the
support OF government, and in acts for rails
ing revenue for public purposes it seems to
be used as meaning The same thing as lmpost
duty or excise"
The tax under the statute, is once for all,
an excise or duty upon the right or privilege
OF taking property. by will or descent. under
the law OF the State. 1t is uniform in its rate
as to the entire class of coilaterals and stran-
gers, which satisfies the constitutional re-
quirement of uniformity. State v. Tele-
graph Co., supra; Brewer Brick Co. v.
Brewer, 81 Me. IA. SIT is not levied
There is no given sum to he
assessed, In which the percentage is fixed by
valuation, but the percentage il fixed by law,
leaving the amount to be ascertained by the
valuation" The value of the property Is re-
sorted to to measure the amount OF the eX-
else. The act taxing telegraph companies, in
terms imposed a lax OF two and onc-halt per
cent on the 0d1ae of any telegraph line, etc.
and it was strongly urged lay eoansel that this
was property tax, and not an excise. and
therefore violated the constitutional proyis-
ion requiring equal taxation; but this court,
in State VS.. Telegraph Co., supra, held that
the tax was an excise, and clearly within the
constitutional right of the Legislature to i'm
pose. Connecticut ms. Co. VS.. Com. 1888
Mass. 162-l63. The same reasoning applies
with equal force to the tax on collateral i'll
heritances. State V. M. c. X. r. supra.
The constitution guarantees 10 the citizen
the right OF acquiring, possessing and pro-
tectIng property. Art. l, see. 1, which iu-
cludes also the right of disposal But the
guaranty ceases to operate at the death OF the
possessor. There is no provision of our con-
stitution, or that OF the United States, which
secures the right to any one TO control or dis
pose of his property after his death, nor the
right to any one. whether kindred or not, to
take it by inheritance. Descent is creature
of statute, and not natural right. Black
stones Com. PIP. 10, III, u, 10; Strobe V.
Com, supra. AT common law, prior to the
statute of distribution in England, % and IS
Car. IL, descent of personal property could
hardly be recognized. and even after the
statute requiring administration to be grant
ed, the administrator, after the payment of
the debts and funeral expenses of the de-
ceased, was entitled to retain to himself The
residue of his effects, the courts holding that
there was no power to compel a distribution.
2 Bl. Com. 515; Edwards v. Freeman, p
WINS. 442.
Degrees of kindred, and the laws of de-
scent, in the several States of the Union,
differ widely. LII this State there have been
frequent changes in the law governing the
subject. 1t is entirely within the pro-
vince of the Legislature to determine
who shall and who shall not take the
estate, and the proportion in which
they may take, and whether severally, or as
joint tenants, per capita or per sttg,pss. In
the absence OF constitutional prohibition, the
Legislature is supreme, and may dispose of
an intestate decedents estate, after pay
ment of his debts, to any class or classes of
his kindred, to the exclusion of any class or
classes. 1t may limit heirship to lineal de-
scendants, to the absolute exclusion of all
collaterals. Ii it permits, as our laws now
do. collateral kindred to inherit, 10 reason is
perceived why the State is debarred from eX-
acting an excise or duty from such collateral,
for such privilege allowed by the State. 1t
is necessary to make such excise uniform as
to the entire class of collaterals. 1t must not
tax one and exempt another in the same
class. But it is not violation of this princi-
pile to require an excise from all collaterals
and strangers, and exempt from the excise
classes nearer in blood to the decedent.
The right to dispose of estates by will is of
very ancient origin, but it is creature of
municipal law, and not a natural right. Red
field wills, C. / sec. 1 ;IMager v.Grima.S How.
494. Before the statute of wills in Enaand,
80, 81 and 30, Henry VIII, the right did not
extend to real estate, and was limited as to
personal, if the testator left widow or chill
dren. If he had both, he could dispose of
but one-thrd of his personal estate by will;
if but one, he could dispose of one-half. This
right has since been extended BIZ statute to
include real estate. land all personal. The
restriction has never existed in this country,
except as to widows, where right to dover
and share of the personal estate is secured
by statute in most of the States, and in Louis
lana. where the rules of the civil law prevail.
Our statute Of wills authorizes certain per-
sons to make wills, and prescribes the mode
of their execution. This is a statute right,
and it is competent for the law making pow
er to modify or take away the right. If the
right itself can be wholly destroyed, it must
be competent to impose conditions and limi-
tations upon it. The greater always includes
the less.
While it has always been the policy of our
law, to allow colaterals to inherit, in default
of lneal descendants, and to allow the dis
posal of estates by will, which take effect only
at the death of the owner, and when his
ownership has ceased, the policy may be
changed, if the Legislature so determine, aud
it is competent for it, if it chooses, to retain
this general policy, and to annex to the privi-
lege of taking decedent's property, by de-
scent or Will, such conditions as it may deem
wise. An excise tax upon the value of the
property so allowed to be received by the
collateral or stranger to the blood, leaves him
in much better condition than an absolute
withdrawal of the privilege would. He can
not complain of unjust taxation, when the
State allows him to take property, subject