This is a bill in equity filed in the circuit court of the United States in and for the Northern district of Illinois by Jessie Norton Torrence Magoun, a resident and citizen of New York, against the trust company, as executor of, and trustee under, the last will and testament of Joseph T. Torrence, deceased, and the county treasurer of Cook county, Ill ., both residents and citizens of Illinois, to remove a cloud from the real estate devised by said decedent to the complainant, and to enjoin the first-named defendant from voluntarily paying, and the county treasurer from collecting or receiving, the inheritance tax, amounting to more than $ 5,000, alleged to be due upon the entire estate of said decedent, and for which the complainant's interest in said estate was contended by the county treasurer to be liable.
The bill set forth the will of the decedent; a description and valuation of the real estate and personal property left by him, amounting in all to $600,000 above his debts; and the demand of the county treasurer for the inheritance tax, which by the act in question is made a lien upon all of said property; the request of the complainant to the defendant trust company not to pay the same, and to contest the constitutionality of the act, to refrain from paying the same voluntarily and without protest, and to await the commencement of legal proceedings to enforce the same; the refusal of the trust company to comply with this request, and its threat and in- [170 U.S. 283, 284] tention to pay said tax at once, voluntarily, which payment could not be recovered if said law should hereafter be declared unconstitutional.
The bill also alleged that such payment would result in waste of the estate, and would be a breach of trust on the part of said executor, to the irreparable loss an injury of the complainant; that the alleged lien of the tax clouds the title to the real property, and renders the same unmarketable; and that the act is in conflict with the provisions of the fourteenth amendment.
The trust company answered, admitting the allegations of fact in the bill, but submitting the question of the constitutionality of the law to the court, and praying to be advised of its rights and duties in the premises as executor and trustee aforesaid, and as an officer of the court.
The county treasurer denied that the act was unconstitutional, and admitted the allegations respecting the estate of the deceased, the interest of the complainant therein, the lien of the inheritance tax thereon, and the demand made therefor.
The cause was heard on bill and answers, and a decree was entered dismissing the bill, from which an appeal was prayed to this court, and allowed.
The act under which the taxes complained of were levied is entitled 'An act to tax gifts, legacies and inheritances in certain cases and to provide for the collection of the a me.' Acts 1895, p. 301. It is only necessary to quote its first and second section, which are as follows:
In the Drake Case the supreme court of the state of Illinois sustained the statute, as consonant with the constitution of the state. 167 Ill. 122, 47 N. E. 321.
Wm. D. Guthrie and Benjamin Harrison, for appellant.
Edward C. Akin and Thomas A. Moran, for appellees.
Mr. Justice McKENNA, after stating the case, delivered the opinion of the court.
Legacy and inheritance taxes are not new in our laws. They have existed in Pennsylvania for over 60 years, and have been enacted in other states. They are not new in the laws of other countries. In Tennessee v. Alston, 94 Tenn. 674, 30 S. W. 750, Judge Wilkes gave a short history of them, as follows: 'Such taxes were recognized by the Roman law. 1 Gibbon's Decline and Fall of the Roman Empire, pp. 163, 164. They were adopted in England in 1780, and have been much extended since that date. Dowell's History of Taxation in England, 148; Acts 20 Geo. III. c. 28, 45 Geo. III. c. 28, and 16 & 17 Vict. c. 51; Green v. Craft, 2 H. Bl. 30; Hill v. Atkinson, 2 Mer. 45. Such taxes are now in force generally in the countries of Europe. Review of Reviews, Feb., 1893. In the United States they were enacted in Pennsylvania in 1826; Maryland, 1844; Delaware, 1869; West Vir- [170 U.S. 283, 288] ginia, 1887, and still more recently in Connecticut, New Jersey, Ohio, Maine, Massachusetts, 1891; Tennessee in 1891 (chapter 25,-now repealed by chapter 174,-Acts 1893). They were adopted in North Carolina in 1846, but repealed in 1883; were enacted in Virginia in 1844, repealed in 1855, re- enacted in 1863, and repealed in 1884.' Other states have also enacted them,-Minnesota, by constitutional provision.
The constitutionality of the taxes has been declared, and the principles upon which they are based explained, in U. S. v. Perkins, 163 U.S. 625, 628 , 16 S. Sup. Ct. 1073; Strode v. Com., 52 Pa. St. 181; Eyre v. Jacob, 14 Grat. 422; Schoolfield v. Lynchburg, 78 Va. 366; Maryland v. Dalrymple, 70 Md. 298, 17 Atl. 82; Clapp v. Mason, 94 U.S. 587 ; In re Merriam's Estate, 141 N. Y. 479, 36 N. E. 505; Maine v. Hamlin, 86 Me. 495, 30 Atl. 76; Tennessee v. Alston, 94 Tenn. 674, 30 S. W. 750; In re Wilmerding's Estate, 117 Cal. 281, 49 Pac. 181; Dos P. Inh. Tax Law, 20; Minot v. Winthrop, 162 Mass. 113, 38 N. E. 512; Gelsthorpe v. Furnell ( Mont.) 51 Pac. 267. See, also, Scholey v. Rew, 23 Wall. 331.
It is not necessary to review these cases, or state at length the reasoning by which thy are supported. They are based on two principles: ( 1) An inheritance tax is not one on property, but one on the succession; ( 2) the right to take property by devise or descent is the creature of the law, and not a natural right,-a privilege,-and therefore the authority which confers it may impose conditions upon it. From these principles it is deduced that the states may tax the privilege, discriminate between relatives, and between these and strangers, and grant exemptions, and are not precluded from this power by the provisions of the respective state constitutions requiring uniformity and equality of taxation.
The second principle was given prominence in the arguments at bar. The appellee claimed that the power of the state could be exerted to the extent of making the state the heir to everybody, and the appellant asserted a natural right of children to inherit. Of the former proposition we are not required to express an opinion. Nor, indeed, of the latter, for appellant conceded that testamentary disposition and inheri- [170 U.S. 283, 289] tance were subject to regulation. However, as pertinent to the subject, decisions of this court may be cited.
In U. S. v. Fox, 94 U.S. 315 -321, a law of the state of New York confining devises to natural persons and corporations created under its laws was considered, and a devise of land to the United States was held void. The court said:
In Mager v. Grima, 8 How. 493, there was considered the validity of a law of Louisiana imposing a tax of 10 per cent. upon legacies, when the legatee was neither a citizen of the United States, nor domiciled therein. Mr. Chief Justice Taney considered the legal question of easy solution, and disposed of it summarily. He said: 'This is a plain case, and when the facts are stated the questions of law way be easily disposed of in a few words.' After stating the case briefly, he further said:
In U. S. v. Perkins, 163 U.S. 625 -631, 16 Sup. Ct. 1073, the inheritance tax law of the state of New York was involved. Mr, Justice Brown, speaking for this court, said:
Against the cases sustaining inheritance taxes, and their classifications and exemptions, appellants cite Wisconsin v. Mann, 76 Wis. 469, 45 N. W. 526, and 46 N. W. 51; Minnesota v. Gorman, 40 Minn. 232, 41 N. W. 948; Curry v. Spencer, 61 N. H. 624; Ohio v. Ferris, 53 Ohio St. 314, 41 N. E. 579; and Missouri v. Switzer (lately decided; Mo. Sup.) 45 S. W. 245. [170 U.S. 283, 292] These cases are not in all points irreconcilable with those first cited. Curry v. Spencer is extreme. It was held that an exception from an otherwise general inheritance law of legacies of husband or wife, children or grandchildren, of the person who died last seised, offended the rigid uniformity of the constitution of that state, and its bill of rights. The court, however, said, speaking by Blodgett, J.: 'It is not questioned that the power to tax is vested in the legislature; that it is unrestricted, except when opposed to some provision of the federal or state constitution; and that it extends to every trade or occupation, to every object of industry, use, or enjoyment, and to every species of possession.' And quoting 2 Bl. Comm. 12, he further said: 'Wills, and therefore testaments and rights of inheritances and successions, are all of them creatures of the civil or municipal laws, and accordingly are in all respects regulated by them.'
In Wisconsin v. Mann and Minnesota v. Gorman, the distinction between a tax on successions and one on property was not necessary to observe. Minnesota v. Gorman, however, may be claimed as deciding that a tax based on the value of the estates is contrary to the rule of equality; also, that exemptions are. Ohio v. Ferris and Missouri v. Switzer do not oppose the principles upon which inheritance taxes are sustained, but only decide that the statutes passed on were repugnant to equality and uniformity of taxation as prescribed by the state constitutions. They are authority against the Illinois statute. But it is not necessary to dwell on the points of agreement of the cases. Our inquiry must be, not what will satisfy the provisions of the state constitutions, but what will satisfy the rule of the federal constitution. The power of the states over successions may be as plenary in the abstract as appellees contend for. Nevertheless it must be exerted within the limitations of that constitution. If the power of devise or of inheritance be a privilege, it must be conferred or regulated by equal laws.
This brings us to the law in controversy. The appellant attacks both its principles and its provisions,-its principles as necessarily arbitrary, and its provisions as causing discriminations and creating inequality in the burdens of taxation. [170 U.S. 283, 293] Is the act open to this criticism? The clause of the fourteenth amendment especially invoked is that which prohibits a state denying to any citizen the equal protection of the laws. What satisfies this equality has not been, and probably never can be, precisely defined. Generally it has been said that it 'only requires the same means and methods to be applied impartially to all the constituents of a class, so that the law shall operate equally and uniformly upon all persons in similar circumstances.' Kentucky Railroad Tax Cases, 115 U.S. 321 , 6 Sup. Ct. 57. It does not prohibit legislation which is limited either in the objects to which it is directed, or by the territory within which it is to operate. It merely requires that all persons subjected to such legislation shall be treated alike under like circumstances and conditions, both in the privilege conferred and the liabilities imposed. Hayes v. Missouri, 120 U.S. 68 , 7 Sup. Ct. 350. Similar citations could be multiplied. But what is the test of likeness and unlikeness of circumstances and conditions? These expressions have almost the generality of the principle they are used to expound, and yet they are definite steps to precision and usefulness of definition, when connected with the facts of the cases in which they are employed. With these for illustration, it may be safely said that the rule prescribes no rigid equality, and permits to the discretion and wisdom of the state a wide latitude, as far as interference by this court is concerned. Nor with the impolicy of a law has it concern. Mr. Justice Field said in Mobile v. Kimball, 102 U.S. 704 , that this court is not a harbor in which can be found a refuge from illadvised, unequal, and oppressive state legislation. And he observed in another case: 'It is hardly necessary to say that hardship, impolicy. or injustice of state laws is not necessarily an b jection to their constitutional validity.'
The rule therefore is not a substitute for municipal law. It only prescribes that that law have the attribute of equality of operation, and equality of operation does not mean indiscriminate operation on persons, merely as such, but on persons according to their relations. In some circumstances it may not tax A. more than B.; but, if A. be of a different trade or [170 U.S. 283, 294] profession than B., it may. And, in matters not of taxation, if A. be a different kind of corporation than B., it may subject A. to a different rule of responsibility to servants than B. (Railway Co. v. Mackey, 127 U.S. 205 , 8 Sup. Ct. 1161), and to a different measure of damages than B. ( Railway Co. v. Beckwith, 129 U.S. 26 , 9 Sup. Ct. 207). And it permits special legislation in all of its varieties. Railway Co. v. Mackey, 127 U.S. 205 , 8 Sup. Ct. 1161; Railway Co. v. Herrick, 127 U.S. 210 , 8 Sup. Ct. 1176; Duncan v. Missouri, 152 U.S. 377 , 14 Sup. Ct. 570.
In other words, the state may distinguish, select, and classify objects of legislation, and necessarily this power must have a wide range of discretion. It is not without limitation, of course. 'Clear and hostile discriminations against particular persons and classes, especially such as are of unusual character, unknown to the practice of our governments, might be obnoxious to the constitutional prohibition,' said Mr. Justice Bradley in Bell's Gap R. Co. v. Pennsylvania, 134 U.S. 232 -240, 10 Sup. Ct. 533.
And Mr. Justice Brewer, in Railroad Co. v. Ellis, 165 U.S. 150 , 17 Sup. Ct. 255, after a careful consideration of many cases, said: 'It is apparent that the mere fact of classification is not sufficient to relieve a statute from the reach of the equality clause of the fourteenth amendment, and that in all cases it must appear, not only that a classification has been made, but also that it is one based upon some reasonable ground,-some difference which bears a just and proper relation to the attempted classification, and is not a mere arbitrary selection.'
Two principles, therefore, must be reconciled in the Illinois inheritance law, if it is to be sustained,-the equality of protection of the laws guarantied by the fourteenth amendment, and the power of the state to classify persons and property. The latter principle needs further consideration. What test is there of the reasonableness of a classification,-of one based upon 'some difference which bears a just and proper relation to the attempted classification, and is not a mere arbitrary selection'? Legislation special in character is not forbiddeb by it, as we have seen. Treating mechanics as a class, and [170 U.S. 283, 295] giving them a lien for the amount of their work, has been held reasonable. Charging a railroad corporation, and not other corporations or persons, with an attorney's fee, has been held unreasonable; yet the former would seem to be as much an exclusive favor as the latter an exclusive burden.
Of taxation (and the case at bar is of taxation) Mr. Justice Bradley said in Bell's Gap R. Co. v. Pennsylvania, supra, and Mr. Chief Justice Fuller in Giozza v. Tiernan, 148 U.S. 657 , 13 Sup. Ct. 721, that the fourteenth amendment was not intended to compel the state to adopt an iron rule of equal taxation. The range of the state's power was expressed by Mr. Justice Bradley, as follows: 'It may, if it chooses, exempt certain classes of property from any taxation at all, such as churches, libraries, and the property of charitable institutions. It may impose different specific taxes upon different trades and professions, and vary the rates of excise upon various products. It may tax real estate and personal property in a different manner. It may tax visible property only, and not tax securities for payment of money. It may allow deductions for indebtedness, or not allow them. All such regulations, and those of like character, so long as they proceed within reasonable limits and general usage, are within the discretion of the state legs lature, or the people of the state framing their constitution.'
And so Mr. Justice Miller, speaking for the court in Davidson v. New Orleans, 96 U.S. 97 . said: 'The federal constitution imposes no restraints on the state in regard to unequal taxation.'
The court, through Mr. Justice Lamar, in Express Co. v. Seibert, 142 U.S. 339 , 12 Sup. Ct. 250, was equally emphatic. He said on page 351, 142 U. S., and on page 253, 12 Sup. Ct.: 'This court has repeatedly laid down the doctrine that diversity of taxation, both with respect to the amount imposed and the various species of property selected either for bearing its burdens, or from being exempt from them, is not inconsistent with a perfect uniformity and equality of taxation, in the proper sense of those terms, and that a system which imposes the same tax upon every species of property, irrespective of its nature or condition or class, will be destruc- [170 U.S. 283, 296] tive of the principles of uniformity and equality in taxation, and of a just adaptation of property to its burdens.' And it was said in Merchants' & Manufacturers' Nat. Bank v. Pennsylvania, 167 U.S. 461 , 17 Sup. Ct. 829: 'Indeed, this whole argument of a right under the federal constitution to challenge the tax law on the ground of inequality in the burdens resulting from the operation of the law is put at rest by the decision in Bell's Gap R. Co. v. Pennsylvania.'
There is therefore no precise application of the rule of reasonableness of classification, and the rule of equality permits many practical inequalities. And necessarily so. In a clssification for governmental purposes there cannot be an exact exclusion or inclusion of persons and things. Bearing these considerations in mind, we can solve the questions in controversy.
There are three main classes in the Illinois statute; the first and second being based, respectively, on lineal and collateral relationship to the testator or interstate, and the third being composed of strangers to his blood, and distant relatives. The latter is again divided into four subclasses, dependent upon the amount of the estate received. The first two classes therefore depend on substantial differences; differences which may distinguish them from each other, and them or either of them from the other class; differences, therefore, which 'bear a just and proper relation to the attempted classification,'-the rule expressed in Railroad Co. v. Ellis, supra. And, if the constituents of each class are affected alike, the rule of equality prescribed by the cases is satisfied. In other words, the law operates 'equally and uniformly upon all persons in similar circumstances.'
But the appellant asserts discrimination, and claims that the exemptions produce the greatest inequality. As stated above, the supreme court of the state of Illinois passed on and sustained the law in the Drake Case; and, claiming the opinion for support, the appellant contends that there are two distinct systems and principles applied in the act,-the one basing the tax on the amount received or the value of the [170 U.S. 283, 297] privilege of succession; the other basing the tax upon the estate owned by the decedent, irrespective of the amount or value of the legacy. And discriminations hence resulting, or rather which are claimed as hence resulting, are detailed.
We, however, do not read the opinion as counsel do. In answer to the objection that the statute offended against uniformity or proportion to valuation as prescribed by the constitution of Illinois, the court said:
The words which we have italicized are urged to support appellant's contention, but it is manifest that they do not do so, when considered in relation to that which precedes and follows them; and it is therefore the estates which descend or are received which the court decides are new property, and which are to pay a tax in proportion to their value.
Appellant, however, says: 'The progression is likewise unnecessarily arbitrary if we take the view that the tax is levied on the amount received. ... Under such an assumption, those taking the larger amounts are required to pay a larger rate on the same sums upon which those taking smaller sums pay a smaller rate; that is to say one who receives a legacy of $10,000 pays 3 per cent., or $300, thus receiving $9,700 net, while one receiving a legacy of $10,001 pays 4 per cent. on the whole amount, or $ 400.04, thus receiving $9,600.96,-$99.04 less than the one whose legacy was actually $1 less valuable. This method is applied throughout the class. Other examples might be stated.'
The reasoning of appellant is based on the view that the tax is one on property, instead of one on the succession, as held by the supreme court of the state. Being on the succession, the court further held, as we have seen, that the latter is to be regarded as new property, and the $20, 000 and other property not taxed are not, therefore, exemptions.
In this view, the Illinois court is in harmony with the majority of other courts of the country. We concur in the reasoning. It is true that the amount of the exemption is greater in the Illinois law than in any other, but the right to exempt cannot depend on that. Whether it shall be $ 20,000, as in Illinois law, or $10,000, as in that of Massachusetts, or other amounts as in other laws, must depend upon the judgment of the legislature of each state, and cannot be subject to judicial review. If such review could ascertain the factors of judgment, and could apply them with indisputable wisdom to the different conditions existing, it would be outside of its province to do so. That, manifestly, is a legislative, not a judicial, function. [170 U.S. 283, 299] The first and second cases, therefore, of the statute, depend on substantial distinctions, and their classifications are not arbitrary. Nor do the exemptions of the statute render its operation unequal, within the meaning of the fourteenth amendment. 'The right to make exemptions is involved in the right to select the subjects of taxation, and apportion the public burdens among them, and must consequently be understood to exist in the lawmaking power wherever it has no in terms been taken away. To some extent it must exist always, for the selection of subjects of taxation is of itself an exemption of what is not selected.' Cooley, Tax'n, 200. See, also, the remarks of Mr. Justice Bradley in Bell's Gap R. Co. v. Pennsylvania, supra.
The provisions of the statute in regard to the tax on legacies to strangers to the blood of an intestate need further comment. These provisions are as follows:
There are four classes created, and manifestly there is equality between the members of each class. Inequality is only found by comparing the members of one class with those of another. It is illustrated by appellant as follows: One who receives a legacy of $10,000 pays 3 per cent ., or $300, thus receiving $9,700 net, while one receiving a legacy of $10, 001 pays 4 per cent. on the whole amount, or $400.04, thus receiving $9, 600.96, or $99.04 less than the one whose legacy was actually $1 less valuable. This method is applied throughout the class.
These, however, are conceded to be extreme illustrations, and we think, therefore, that they furnish no test of the [170 U.S. 283, 300] practical operation of the classification. When the legacies differ in substantial extent, if the rate increases, the benefit increases to greater degree.
If there is unsoundness, it must be in the classification. The members of each class are treated alike; that is to say, all who inherit $ 10,000 are treated alike,-all who inherit any other sum are treated alike. There is equality, therefore, within the classes. If there is inequality, it must be because the members of a class are arbitrarily made such, and burdened as such, upon no distinctions justifying it. This is claimed. It is said that the tax is not in proportion to the amount but yaries with the amounts arbitrarily fixed, and hence that an inheritance of $10,000 or less pays 3 per cent., and that one over $10,000 pays, not 3 per cent. on $ 10,000, and an increased percentage on the excess over $10,000, but an increased percentage on the $10,000 as well as on the excess; and it is said, as we have seen, that in consequence one who is given a legacy of $ 10,001 by the deduction of the tax receives $99.04 less than one who is given a legacy of $10,000. But neither case can be said to be contrary to the rule of equality of the fourteenth amendment. That rule does not require, as we have seen, exact equality of taxation. It only requires that the law imposing it shall operate on all alike, under the same circumstances. The tax is not on money; it is on the right to inherit, and hence a condition of inheritance, and it may be graded according to the value of that inheritance. The condition is not arbitrary because it is determined by that value; it is not unequal in operation because it does not levy the same percentage on every dollar,-does not fail to treat 'all alike under like circumstances and conditions, both in the privilege conferred and the liabilities imposed.' The jurisdiction of courts is fixed by amounts. The right of appeal is. As was said at bar, the congress of the United States has classified the right of suitors to come into the United States courts by amounts. Regarding these alone, there is the same inequality that is urged against classification of the Illinois law. All license laws and all specific taxes have in them an element of inequality. Nevertheless [170 U.S. 283, 301] they are universally imposed, and their legality has e ver been questioned. We think the classification of the Illinois law was in the power of the legislature to make, and the decree of the circuit court is affirmed.
Mr. Justice BREWER, dissenting.
I am unable to concur in the foregoing opinion, so far as it sustains the constitutionality of that part of the law which grades the rate of the tax upon legacies to strangers by the amount of such legacies. If this were a question in political economy, I should not dissent, but it is one of constitutional limitations. Equality in right, in protection, and in burden is the thought which has run through the life of this nation, and its constitutional enactments, from the Declaration of Independence to the present hour. Of course, absolute equality is not attainable; and the fact that a law, whether tax law or other, works inequality in its actual operation, does not prove its unconstitutionality. Merchants' & Manufacturers' Nat. Bank v. Pennsylvania, 167 U.S. 461 , 17 Sup. Ct. 829. But when a tax law directly, necessarily, and intentionally creates an inequality of burden, it then becomes imperative to inquire whether this inequality thus intentionally created can find any constitutional justification.
That this is a law imposing taxes is not open to question. The title of the act is, 'An act to tax gifts, legacies,' etc., and the first section provides that 'all property ... which shall pass by will or by the intestate laws of this state ... shall be, and is, bubject to a tax at the rate hereinafter specified.' Classifying inheritors and legatees into the three classes of near relatives, remote relatives, and strangers, and imposing a different rate of taxation as to each of these classes, may not be objectionable. The classification is based upon differences which bear just and proper relation to it, and, where classification is rightiful, differences in the rate of taxation may be, so far as the federal constitution is concerned, permissible. But beyond this classification the statute provides that as to the third class (that is, strangers) the rate of taxation shall vary with the amount of the estate. In other [170 U.S. 283, 302] words, the actual tax to be paid does not increase simply as the legacy increases, which would be the rule of equality, but the rate of taxation is also increased as the amount of the legacy passes from one sum to another. Upon a legacy over $50,000 it is 6 per cent., while upon one under $10,000 it is only 3 per cent.
It seems to be conceded that, if this were a tax upon property, such increase in the rate of taxation could not be sustained; but, being a tax upon the succession, it is held that a different rule prevails. The argument is that, because the state may regulate inheritances and the extent of testamentary disposition, it may impose thereon any burdens, including therein taxes, and impose them in any manner it chooses. There are doubtless some matters over which the state has purely arbitrary power. For instance, it is under no obligations to grant any charters; and the legislature may, undoubtedly, in giving a charter to one set of persons, impose one series of burdens, and in granting a similar charter to another set may impose entirely different burdens. But these are cases of mere gratuities, mere favors and privileges, and any donor of such may add to them the burdens he pleases. But I do not understand that legacies and inheritances stand upon the same footing, True, the state may regulate, but it has no arbitrary power in the matter. The property of a decedent does not at his death become the property of the state, nor subject to its disposal according to any mere whim or fancy. And yet, if it is a purely arbitrary power, I do not see what constitutional objection could be raised to any disposition which a legislature might make of the property of any decedent. Take the illustration made by counsel for appellant: Could the legislature of Illinois, which passed this statute, constitutionally enact that the estate of every person dying withi the limits of the state should be given to the members of that legislature? Or, if the matter of personal benefit be interposed as against the validity of such legislation, could it enact that the property of A. on his death should pass to the state, the property of B. to some religious or charitable institution, and the property of C. be divided [170 U.S. 283, 303] among his children? Can there be a doubt that such inequality of legislation would vitiate it? But, whatever may be the power of the legislature, Illinois had regulated the matter of descents and distributions, and had granted the right of testamentary disposition. And now, by this statute, upon property passing in accordance with its statutes a tax is imposed; a tax unequal because not proportioned to the amount of the estate; unequal because based upon a classification purely arbitrary, to wit, that of wealth; a tax directly and intentionally made unequal. I think the constitution of the United States forbids such inequality.