State ex rel. McClintock v. Guinotte.

upon conditions precedent, if the law-makers so decree. In this case the effect of the law is to permit the property of a deceased person to pass to others, rather than to the State, but upon the conditions in the law prescribed. It is not strictly the exercise of the taxing power at all. It is however, the exercise of a sovereign power, which has not been prohibited by the Constitution, for it is so recognized. But what we do mean is that laws which take possession of the property of a deceased person, and fixes conditions precedent upon the transfer thereof, are not necessarily the exercise of the taxing power at all.

The character of the law must be determined from its effect, rather than from the technical name which may be given thereto. [State v. Bengsch, 170 Mo. p. 81 and other cases determining whether a law was intended for a tax on property or otherwise.] After the passage of the Act of 1917, it is clear that the Legislature intended to limit the transfer of property from the estate of the deceased to others. It is clear that the whole property is placed in the hands of the custodian of the State, subject to the conditions precedent to the transfer.

Upon the whole we are firmly convinced that the law is not referable to the taxing power at all, but is referable to the power of the State to say what becomes of the property of a person, when death forecloses his right to control it. With this view of the case there is not much left therein. We shall, however, discuss the matter from other angles suggested in the briefs.

II. On the theory that the law is not the exercise of the taxing power, but of another and different sovereign power, the divers and sundry constitutional pro

Power.

visions as to taxation disappear from the case. Taxing This for the reason that these constitutional provisions are but limitations upon the exercise of the taxing power, and none other. But as said above, whilst these are our views, we will discuss the other

State ex rel. McClintock v. Guinotte.

matters out of respect for learned counsel urging them, and in view of the fact that this court has heretofore discussed the question along such lines-ruling that a somewhat similar law did not fix a tax upon property, but that an obligation fixed on the transfer of property was not a tax upon property itself. [State ex rel v. Henderson, 160 Mo. 190; Maguire v. University, 271 Mo. 1. c. 359.]

These cases do speak of the law as fixing a tax upon the transfer of property, and upon that phase of the case we will later give our views-not because we think either law is referable to the taxing power of the State, but for the reason assigned above.

The idea that such laws are the exercise of the taxing power of the State no doubt comes from expressions of the laws themselves, and because in them we find no direct repeal of statutes relative to descents and distributions, or wills. Statutes, however, may be repealed or modified by later statutes, which conflict therewith, and in this case we have a statute which imposes conditions precedent to inheritance, which clearly conflict with previous laws as to descents and distributions, and also the law as to wills. To illustrate, the present law as to descents and distributions does not contain any limitations upon the right, as is contained in the law now before us. In so far as the latter law conflicts with the former, it repeals it. So too as to the law of wills.

III. Before taking up this case upon the theory that it is a tax of some kind, and in following up the theory of the views expressed in our point one, supra, it is well to guage the contentions of the Constitutional relator to those views. In the statement are Questions. found the constitutional provisions that this law is supposed to offend. Of these for a moment.

(1) If the law is what we think it is, and what our paragraph one holds it to be, then Section 30 of Article 2 of the Missouri Constitution is in no way violated. This, because the law in question is but the exercise of

State ex rel. McClintock v. Guinotte.

the sovereign power of the State, and cannot be said to be the taking of property without due process of law. Not only so, but the State has the right to say whether the heirs have any right to property of the deceased, and if the State in the exercise of its sovereignty says they shall have no such right or says that they shall have only a limited right, there is no such question as a failure of due process of law in the case.

(2) It is next suggested as a constitutional objection that Section 28 of Article 4 provides that no bill shall contain more than one subject, which shall be clearly expressed in the title. This is really the only constitutional dart that strikes at the position taken in our point one, supra.

It was evidently interposed upon the theory that we might conclude that the law under review repealed or modified in a way the laws as to descent and distributions and wills, and that the title to this bill did not so indicate. A sufficient answer to this view can be shortly stated. The title to this act we have set out in full. There can be no question that the law follows the title and is within the purview of the title. True it is that it does not in the title nor in the bill provide for a repeal or modification of the laws as to descent and distribution of the law of wills. The title clearly indicated just what the law-makers did, and this is sufficient. If the law as passed (being within the purview of the title to the bill) had the legal effect of repealing or modifying previous laws, that is a question for the courts to determine under the usual rules of statutory construction. One rule is, that if a later law conflicts with an earlier one, the later law operates to repeal or modify the earlier one to the extent of the conflict. So that if the law passed is fairly within the purview of the title to the bill it is a good law, and it then remains for the court to say whether such law repeals or modifies other existing laws. In this case the law passed was strictly within the purview of the title to the bill. We hold, however, that it modifies the law as to descent and distributions

State ex rel. McClintock v. Guinotte.

and the law as to wills, which, as a court, we have a right to do.

(3) We are cited to Section 43 of Article 4 of the Missouri Constitution, which provides that no money shall be diverted from the State Treasury except by a proper appropriation bill. This question is not in this case under the pleadings and will not be passed upon

now.

Relators do not place themselves in a position to question this portion of the act. Whether this portion of the act is valid or invalid does not interest them. But even if this portion of the act might be invalid, it does not follow that the whole act must fall. The section thus attacked is section 12 of the Act, which reads:

"When any tax shall have been paid erroneously to the State Treasurer it shall be lawful for him, on satisfactory proof of said erroneous payment, to refund and pay to the executor, administrator, or trustee, person or persons who paid the same, the amount of such tax so erroneously paid; provided that all applications for the refund of said tax shall be made within two years from the date of said payment.'

And also a part of Section 25, which reads:

"Such return of over-payment shall be made in the manner provided by Section Twelve of this act, upon the order of the court having jurisdiction."

It will be observed that these provisions do not necessarily provide for a repayment without further legislative action, in the way of an appropriation.

But we must not, and do not, discuss this matter, because not within the purview of the instant case. Relators have not stated a case under these provisions, and we have no doubt, that, if found necessary, this portion of the act might be stricken out, and yet leave a valid law, which covers the case made by relators.

Paragraph 4, 5, 6, 7, 8 and 9 of the constitutional objections set out in our statement, can in no way be upheld under the views in our paragraph one. (a) The law is not a local or special law changing the law

State ex rel. McClintock v. Guinotte.

of descents and succession. It is, if anything, a general law. (b) Neither is it a local or special law affecting the estates of minors or persons under disabilities. It is a general law, and one within the sovereign power of the State to enact. Under the views expressed in our paragraph one, supra, it is not necessary to note the assignments, in numbers 6, 7 and 8 on constitutional questions. These refer solely to the taxing power of the State, and our views are that this law is not referable to that power.

Nor need we hardly mention the 14th Amendment of the Federal Constitution, as to equal protection under the law, and due process of law. These are not in the case in any view of it. These have been too often defined for repetition here. Nor can it be said that the classifications made are unreasonable under our rulings. In State ex rel. v. Henderson, 160 Mo. 216, it is said: "It is insisted that this act makes an unnatural and unconstitutional classification. It will be observed that it is laid upon collaterals only, and exempts the lineals both ascending and descending, and the husband and wife and adopted children.

"The right of the Legislature to prescribe the right of descent and inheritance cannot be doubted. It is not a natural right. [2 Blackstone's Com., pp. 10 and 13; Strode v. Commr., 52 Pa. 181; State v. Hamlin, 25 L. R. A. (Maine), 632; Eyre v. Jacob, 14 Gratt. 430.]

"The Legislature has seen fit to make this classification, and unless it is so arbitrary that we can say beyond a reasonable doubt that it transcends constitutional limitations, we are bound to accept it."

So also in White v. Railroad, 230 Mo. 287, we had under consideration the question of classification. In that case the question was a close one. Unreasonable classification was urged, but VALLIANT, J., in an opinion for our Court in Banc, in elegantly expressed' views, which to those of us who knew him, visualize the man, committed this court to broad views upon the subject. He committed us to a view which requires us to look to the general welfare of the public in the