author: BROWN, C.

text:
    JOSEPH MURPHY et al., Appellants, v. WILLIAM N. BARRON.
    Division One,
    July 5, 1918.
    1. QUIETING TITLE: Pleading: Equitable and Legal Title: Belief. In a suit brought under Sec. 2535, R. S. 1909, the petition may contain two counts, one asking for a determination of the title, and the other sounding in ejectment, and if defendant’s title be found vulnerable in equity or void in law, plaintiff may have both possession and the removal of defendant’s cloud.
    2. CONVICT: Sale of Land for Taxes: Void Judgment. A judgment for taxes obtained against an owner of land incarcerated in the Penitentiary is void and a sale under execution does not affect the legal title. The statute specifically declares that a convict “shall be deemed civilly dead” during the term of his sentence, but it also says he “is and shall be under the protection of the law” and provides for the appointment of a trustee to “prosecute and defend all actions commenced by or against the convict;” and if the State, instead of pursuing the course thus provided, by the statute, proceeds against him directly for the taxés due from his land at a time when he cannot be. haled info court, the judgment does not affect the legal title.
    3. TITLE TO LAND: Judgment as Estoppel. In order that1 a judgment may have the effect of transferring title to land by estoppel, it must be pronounced by a court acting within the limits of a jurisdiction which authorizes it. If the court in pronouncing the judgment acted by virtue of. a special or limited statutory jurisdiction, it can be upheld only when the plain letter of the law permits it»
    4; -: -: Condemnation: Adverse Claimants to Award: Determination of Title. Commissioners appointed by the court to ' assess damages in a condemnation proceeding begun by a railroad company estimated the value of a right-of-way one hundred feet wide through forty acres of land,- at one hundred dollars. Plaintiff at the time was in possession claiming title, and defendant held a recorded deed made hy the sheriff as a result of an execution sale under a judgment for taxes obtained against the plaintiff, who at the time the tax judgment was rendered was the owner and under sentence for a felony. The railroad company did not pay the money into court, but defendant upon the filing of the commissioners’ report filed an interplea alleging he was the owner of the land "and that plaintiff had no title or interest therein and asking that the money he awarded to him, and plaintiff later filed a like interplea alleging he was the owner and that defendant’s deed was void and asking that the money he awarded to him. The trial court rendered judgment adjudging the defendant to be the owner of the land and ordering that the money he paid to him when it was paid into court. It was not paid into court, but defendant testified that it was paid to him. Held, that the judgment did not have the effect of transferring the title to defendant, but the contest related solely to the fund, and not to the land. Held, further, that the statutory proceeding for the fund was one in rem and jurisdiction cannot exist without the res, and the statute providing for an interplea only when the award is paid into court and that not having been done, the court had no jurisdiction to consider the title to the land or to award the fund to defendant.
    Appeal from Butler Circuit Court. — Hon. J. P. Foard, Judge.
    Reversed and remanded.

      L. M. Henson for appellants.
    (1) A convict confined in the penitentiary for a term less than life is civilly dead, and when his estate is being attacked hy a suit, he can, under the statute, he in court only through a trustee, and no valid judgment affecting his property can he rendered until the trustee has been appointed and brought into court. Secs. 289Í to 2920, R. S. 1909; McLaughlin v. McLaughlin, 228 Mo. 635. (2) The judgment and proceedings in the case of the Butler County Railroad Company v. Murphy, Barron et al., did not affect the rights of the parties herein as the title to the land in question was not involved in that suit. The only question adjudicated in that case between the parties to this suit was the ownership of one hundred dollars in money. Cox v. Barker, 150 Mo. 424; Price v. Blankenship, 144 Mo. 203; Hilton v. City of St. Louis, 129 Mo. 389. (3) Neither of the appellants were parties to the ejectment suit brought by Barron against Baurton, and are not bound thereby. The deed made to Baurton by Murphy was void for the reason that Murphy was civilly dead at the time of its execution. Williams v. Shackelford, 97 Mo. 322. Even if Baurton’s deed had been valid, Murphy still held a deed of trust on the land and his interest could not be affected by a judgment against Baurton.

      Lew R.- Thomason for respondent.
    (1) A person confined in the penitentiary for a term less than life, under 'the provisions of Sec. 2891, R. S. 1909, is not eiviliter mortuus;- his civil rights are simply suspended during the period of incarceration. R. S. 1909, sec. 2891. The civil rights of the convict are not suspended until actually imprisoned in the penitentiary. R. S. 1909, sec. 297; In re Morse, 117 Fed. 763; Harmon v. Bower, 17 L. R. A. (N. S.) 502. The actual imprisonment of Murphy did not begin until some time in February, 1903. He was summoned to appear in the tax suit September 16, 1901, ten months before he was first sentenced and seventeen months before his imprisonment began. The court having acquired jurisdiction over the person of Murphy, and having jurisdiction of the- subject-matter of an action to enforce- the lien of the State for delinquent taxes, the judgment rendered in the tax case on the 19th day of June, 1903, was not void. Had Murphy died a natural death after the service of process upon him and before the rendition of judgment against him, even though his personal representative was not made a party to the action or trustee appointed to represent him, the judgment would not have been void, or subject to collateral attack. Coleman v. McÁnulty, 16 Mo. 173; Castleman v. Relf, 50 Mo. 588; Bank v. Walters, 52 Mo. 35; Lewis v. Combs, 60 Mo. 48; William v. Hudson, 93 Mo. 524; Sbea v. Shea, 154 Mo. 599; Black on Judgments, sec. 200; Van Fleet on Collateral Attack, sec. 602; State ex rel. Potter v. Riley, 219 Mo. 684; Collins v. Mitchell, 5 Fla., 364; Claflin v. Dunne, 129 111. 241; Reid v. Holmes, 127 Mass. 326; Wood v. Watson, 107 N. C. 52; Swasey v. Antrem, 24 Ohio St. 87; Mitchell v. Schonlover, 16 Ore. 217; (biddings v. Steel, 91 Am. Rep. 336; Powell v. Washington, 15 Ala. 8Q3; West v. Jordon, 62 Me. 484; Tapie v. Titus, 41 Pa. St. 195; Pugh v. McCue, 86 Va. 475; King v. Burdett, 57 Am. Rep. 687; Hays v. Shaw, 20 Minn. 405; Beard v. Roth, 35 Fed. 397; New Orleans v. Cains, 138 U. S. 595. Any attempt to impeach the judgment or decree of the court, in any proceeding not instituted for the express purpose of annulling or vacating said judgment or decree, and not instituted in the time and manner as provided by law, is a collateral attack. Van Fleet on Collateral Attack, secs. 2, to 4; Morill v. Morill, 20 Ore. 96; Thom v. Ireland, 88 Ky. 581; Hope ' v. Harrison, 84 Tenn. 82; State ex rel. Potter v. Riley, 219 Mo. 684. (2) Circuit courts are courts of general jurisdiction, and when such a court has acquired jurisdiction, however erroneous or irregular its proceedings may be, its judgments are valid and binding until they have been reversed or annuled by suitable proceedings instituted for that purpose. And titles acquired by sales under them, by bona-fide purchasers, will not be affected, even though said judgment should be subsequently set aside. Jones v. Talbot, 9 Mo. 123; Coleman v. McAnulty, 16 Mo. 173; Choteau v. Nuckolls, 20 Mo. 442; Shields v. Powers, 29 Mo. 335; Fithian v. Monks, 43 Mo. 522; Giott v. Powell, 41 Mo. 416; Volger v. Montgomery, 54 Mo. 577; Johnes v. Hart, 60 Mo. 362; Macklin v. Allenburg, 100 Mo. 337; Shipman v. Smith, 154 Mo. 214; Hefferman v. Ragsdale, 199 Mo. 384; Board of Trustees v. Fry, 199 Mo. 563; Crowdy v. Hall, 36 111. 313; Cray v. Bernardello, 1 Wall. U. S. 627; Vorhees v. Bank, 10 Pet. U. S. 450. (3) In the- case of the Butler County Railroad condemnation proceeding for a part of the lands in controversy, against Mnrphy and Barron, as defendants, the ownership of the land 'in controversy was a direct issue upon the pleadings filed. The court found and adjudged Barron to he the owner. This decree was affirmed upon appeal. A question of the law, or fact, is res adjudícala, if it was a material issue in the proceedings, and not merely cognizable or collaterally in question, and was adjudged upon its merits. Van Fleet on former Adjudication, secs. 1 and 2; Mason v. Summers, 24 Mo. App. 174; Young v. Berg, 24 Mo. 590.
   BROWN, C.

This suit was instituted in the Butler Circuit Court December 5, T914, by petition containing two counts. The first of these is framed upon the provisions of Section 2535, Revised Statutes 1909, and is, omitting caption and signatures, as follows:

“Plaintiffs, for their cause of action, state that they are the owners of and claim the legal title to the following described real estate, lying, being and situate in the county of Butler, and State of Missouri, to-wit; all of the Southwest Quarter of the Southeast Quarter of Section Seventeen in Township Twenty-four north, Range Seven east, except a strip 100 feet wide heretofore condemned for railroad right of way.

‘‘ That the defendant claims some title, interest and estate in said land, which said title is based and predicated upon a void judgment rendered in the circuit court of Butler County, Missouri, in Tax Suit No. 6486, on the 19th day of June, 1903, and execution sale thereunder, wherein the State of Missouri, at the relation and to the use of John H. Souders, Collector of Revenue in and for the County of Butler and State of Missouri, was plaintiff, and plaintiff Joseph Murphy et al. were defendants.

“Plaintiffs further state that, at the time the judgment above referred to was rendered- and at the time the sale thereunder was made, plaintiff Joseph Murphy was incarcerated in the Penitentiary of the State of Missouri, under and by virtue of a judgment and sentenee theretofore rendered in the circuit court of said Butler County, Missouri, against him, upon a charge of a felony, which said judgment and sentence was for a term of years less than life imprisonment, and that at the time said tax judgment' was rendered and said sale was made, no guardian, trustee, nor legal representative was appointed by the court, nor did any such representative appear on behalf of the said Joseph Murphy in said proceedings.

“Plaintiffs further state that the claim of the defendant is adverse and prejudicial to the title and ownership of these plaintiffs in and to said land.

“Wherefore plaintiffs pray the court to set aside the judgment and sale above mentioned and to cancel the deed and all mesne conveyances made thereunder, and further pray the court to try,' ascertain and determine the title of the parties hereto in and to said real estate, and, by its judgment and decree, define said title, and for such other orders in the premises as to the court may seem meet and just.

“And if the court finds that the claim of defendant in and to said real estate is founded upon the invalid tax sale above mentioned and that the defendant has, in good faith, paid any taxes on said land, under and by virtue of said claim, plaintiffs hereby tender the full amount, of all of said taxes to the defendant, together with six per cent interest thereon from the dates the same were paid until this time, and hereby offer to pay the same as soon as the amount thereof, if any, is ascertained and determined by this court.”

The second count is in the ordinary form in ejectment.

The second amended answer, upon which the cause was tried, sets forth- the judgment for taxes pleaded in the first count of the petition, recites personal service of summons on. Joseph Murphy, the defendant in that suit and plaintiff in this, on October 7, 1901, returnable to the next October term of the Butler Circuit Court; that on June 19, 1903, judgment was rendered in said cause in the amount of $8.97 for taxes and also for the costs of said suit; that on July 31, 1903, special execution issued on this judgment and the land sold thereunder on October 5th to Charles F. Green, hy whom it was conveyed on the 10th day of the same month to defendant; that on August 11, 1911, the Butler County Railroad Company began suit against Joseph Murphy, Sarah Murphy, William N. Barron and' M. C. Horton to condemn a strip of the land one hundred feet wide for its right of way, alleging in its petition that the land was owned hy one or another of the defendants in that suit; that the suit proceeded to an award by commissioners of $100 damages, which was paid into court for the owner, and the railroad company took possession, and that afterward Barron and Horton “filed an answer in said cause in the nature of an interplea,” alleging their ownership of the land, both legal and equitable, and demanded the fund, while Joseph Murphy and Sarah Murphy, his wife, filed a like pleading asserting their own ownership and claiming the fund. At a trial of these issues on October. 23, 1912, the Butler Circuit Court found that Barron was the owner of that land and -awarded the fund to him. This was affirmed on appeal by the Murphys to the Springfield Court of Appeals. [173 Mo. App. 370.] These facts were pleaded in bar as an adjudication of the title to the land and also with other facts as constituting an estoppel in pais.

The answer also pleaded the Statute of Limitations of ten years hy virtue of the provisions of Section 1881, Chapter 21, Article 8, and Section 1894, Chapter 21, Article 9, of the Revised Statutes. The answer to the second count admitted possession and pleaded limitations under the same statute.

Issue was joined hy replication.

The following facts are admitted or uncontroverted. On and prior to August, 1901, the plaintiff Joseph Murphy was the owner in fee of the land in suit and is the common source of title. On August 10, 1901, an action was brought against him hy the State at the relation of the collector of Butler County to recover delinquent taxes for the year 1899, and summons issued therein on September 5, 1901, returnable at the October term, and was duly served. The action was continued at the return term and until the June term, 1903, when judgment was entered for $8 and costs of suit. On July 31, 1903, a special execution was issued in said cause, under which the land was,, .on October 5th, duly sold by the sheriff to satisfy said judgment. One Green became the purchaser, received a sheriff’s deed therefor, dated October 7, 1903, and conveyed to Barron by quitclaim deed, dated October 10, 1903.

On July 23, 1902, Murphy was convicted in the Butler Circuit Court of a felony, and sentenced to a term of two years in the State Penitentiary. He was not at that time incarcerated in the Penitentiary under this sentence, but was held to answer another charge of felony pending in the same court, in which he pleaded guilty on February 13, 1903, and received a like sentence. He was then sent to the Penitentiary upon both sentences, and there remained confined until June, 1905, when he was discharged.

On June 26, 1902, the plaintiff, joined by his wife, conveyed the'land in suit to Gus Baurton, who, with his wife, executed-a deed of trust conveying the same land on the same day to Joseph Murphy, and on January 14, 1904, conveyed the same land by warranty deed to both these plaintiffs.

In 1904, at a date not .otherwise mentioned in the record, the defendant Barron recovered in the Butler Circuit Court a judgment by agreement against Gus Baurton and Maggie Baurton, his wife, for the possession of the land in suit. The costs were adjudicated in favor of the Baurtons and against the plaintiff. The Murphys took possession of the land in controversy upon Joseph’s release from the Penitentiary in 1905, and remained in possession by himself and his tenants up to the spring of 1914, when he was ousted by the sheriff under the judgment obtained by Barron against Baurtons in 1904, and the defendant was placed in possession.

The respondent was vice-president and general manager of the Butler County Railroad Company, which instituted the suit for condemnation pleaded in the answer in this case, the object of which was to condemn a strip of land one hundred feet wide for right of way for the company’s railway across this land. Commissioners were appointed to assess the damages, and after the filing of their report awarding damages in the amount of one hundered dollars with respect to this particular tract, respondent and one M. C. Horton filed a motion in the nature of an interplea alleging that they were the owners of the land and that appellants had no right, title or interest therein. The appellant, at the next term, filed a like plea containing a similar, allegation of ownership, and asking that the money, when paid into court, should be awarded to them. A trial Avas had upon these motions resulting in a judgment or order declaring Barron to be the owner and ordering the money paid to him when it should be paid into the court. The money was never paid into court. Barron testifies that it was paid to him.

I. This is in form an action to quiet title to forty acres of land in Butler County, Missouri, instituted under the provisions of Section 2535 of the present revision of our statutes. The petition, f°rm, contains two counts; the first being in the'usual form in actions under this statute. It also sets out that defendant’s claim arises out of a tax judgment rendered against plaintiff while he was incarcerated in the Penitentiary of this State under sentence, and asks, in addition to the usual relief, that this judgment be set aside.

The second count is the ordinary one in ejectment.

The petition seems to have been framed in this form to take advantage of a favorable opinion of the court on either the legal or equitable theory of the right asserted. The defendant’s title might be found vulnerable to attack in equity or void in law. They are entitled, under tbe section cited, to tbe same broad relief in either case. If the plaintiffs are still seized of the legal title, notwithstanding the sheriff’s sale, they may not only have possession, but also the removal of that cloud. [McLaughlin v. McLaughlin, 228 Mo., 1. c. 655.]

II. Our Legislature has seen fit to provide that a sentence of imprisonment in the Penitentiary for a ^erm l'ess than life “suspends all civil rights of the person so sentenced during the term thereof,” and that the person so sentenced “shall thereafter be deemed civilly dead.”

The words “civil rights” constitute a broad expression that, in its ordinary meaning, excludes access to the courts for every purpose other than to question the validity of the sentence, and no judgment could be rendered against him, because the personal jurisdiction of the court implies the constitutional right to appear and be heard. The defendant argues that this cannot be true in this case, because there are many cases, constituting the greater weight of authority, which held that a judgment may be immune from collateral attack, although rendered against the name of one naturally dead. There seems to us to be no analogy whatever between these classes of judgments. The person naturally deceased leaves living an immediate unbroken succession to all his rights and interests. The event that extinquishes his identity continues it in them, whether their interests arise in testamentary disposition, succession, or as creditors. They have been haled into court by the process with which he has been served, and may appear, as the issue may indicate, either by themselves or by the legal representative which the law provides, to answer in their own behalf. The deceased no longer needs protection.

One civilly dead through a sentence for a period which does not include the whole of his natural life stands in a different position. His sentence does not include the sequestration of his possessions. The whole measure of his punishment is fixed by the term of his imprisonment, which amounts to full satisfaction to the State for his crime. He will still need his possessions-when that satisfaction has been fully rendered, and it would ill become the State, which still owes him protection, to loot his estate through the action of its courts while disabling him from appearing to prevent it. Our State has by legislation fully recognized this duty by providing a method consistent with his full punishment, by which his estate may be preserved during its accomplishment. In the same article which pronounces him civilly dead it is provided .(Section 2892) that he “is and shall be under the protection of the law.” This is the key note of this statute. It is provided also, and evidently for the purpose of extending this protection, that upon the application of any of his relations or any relative of his wife or any creditor (Section 2896) the proper circuit court may appoint a fit person to be trustee of his estate (Section 2897), who may, after giving bond, prosecute and defend all actions commenced by or against the convict (Section 2901), and that the circuit court appointing him “may, at any time, order the sale, lease or mortgage. of real estate, whenever the same shall be necessary for the payment of debts, or the support and maintenance of the family or the education of the children of such convict” (Section 2902), and shall settle all matters between him and his creditors (Section 2903), and “may, also, under the direction of the court, redeem all mortgages and conditional contracts, and all pledges of personal property, and satisfy judgments and decrees which may be an incumbrance on any property ordered to be sold, or he may sell such property, subject to such mortgage, pledges or encumbrances, as the court may direct” (Section 2904).

These are some of the provisions for the protection of a class which has been disabled, in the administration of the laws, from protecting themselves and their dependants. They embody a remedial system so just and reasonable as to recommend them to the consideration of the court, both in their interpretation and administration. The right of the convict to protect himself by contract, to appear in court, or to exercise any other civil right, has been extinguished (William v. Shackleford, 97 Mo. 322), and in all these enactments the State has assumed his protection. This case illustrates the theory upon which it has acted. The State was his creditor to the extent 'of eight dollars. The officer charged with its collection, instead of pursuing the course so directed, waited until the convict had lost his right and power to defend himself in court, and then took this judgment and enforced it by the sacrifice of his forty acres of land for that amount, and the attorney representing the State in the proceeding became the owner through his own sale. The question upon which the validity of his title stands are not new to this court. They were before it in William v. Shackleford, supra, in which it was held that a mortgage executed by the convict while undergoing his sentence was void. The effect -of the same statute was again before us in the late case of McLaughlin v. McLaughlin, 228 Mo. 635, in which the validity of a judgment of this character was thoroughly considered, both upon principle and authority.

In the McLaughlin case, the wife had secured a decree of divorce from her husband on the ground that he had been convicted of murder and sentenced to a term of ten years in the Penitentiary. The summons' in the divorce case had been served on the convict in the Missouri Penitentiary. The court granted the divorce with the care and custody of the-children, and by its judgment vested the title of the homestead in the wife. No question was made in this court as to the jurisdiction' of the circuit court over the defendant for the purpose of granting the divorce, but it was contended by the defendant that the property of the convict was under the protection of the State and that the title to the land could only be affected through the intervention of a trustee appointed as provided in the statutes to which we have referred. Assuming, as the parties assumed, that the e-onviet was properly before the trial court for the purpose- of the divorce, this court unqualifiedly sustained the plaintiff’s contention that the judgment before it was void as to the disposition of the land. In this it only followed the plain provisions of the statute to which we have already referred.

Having arrived at the conclusion that the legal title to the land was unaffected by the sheriff’s sale, it follows that it is vested, in the plaintiffs. The fact that the defendant failed to demur for or otherwise plead a misjoinder of' parties makes it unnecessary to further consider the status of the plaintiff’s wife. They and' those representing them continued in possession, either by themselves or their tenants, up to the spring of 1914. There being no evidence of any adverse possession until -that time the pleas which refer to the Statute of Limitations need not be further considered. Nor does the voluntary payment of taxes by the defendant while pláintiffs and their tenants were in possession have any reference to the questions involving the legal title.

III. The controlling question in this case arises upon the effect of the “interplea” for the. proceeds arising from the condemnation of the pio-ht of way of the Butler County Rail-0 , road Company. There was no- money ■paid into court in that case. The respondent testified that it was paid directly to him. Both appellants and respondent were co-defendants in that ease, and each presented a claim for the amount awarded by the commissioners when it should be paid-. Each claimed title to’the entire premises which was the subject of the award. The court after hearing the controversy determined, and so stated upon its record, that Barron was the owner and entitled to the compensation, and the railroad company paid it to him. There is nothing in the record, so far as we can find, showing the date of the filing or approval of the commissioners’ report or the date of the payment of the money to Barron, or whether such payment was made before or after the filing of his interplea. We note, however, from the opinion of the Court of Appeals, that after the filing of the interplea, and before the joinder of these appellants, they made an unsuccessful effort for an order upon the company to have it paid into court.

The question which is alleged to have been adjudicated in that proceeding is whether these appellants the Murphys, or the respondent Barron,, then held the legal title to the land in suit. If this question of title was adjudicated, that adjudication constitutes the muniment on which it stands. Otherwise, the title, as we have already said, still stands in Murphy, the admitted common source, and his wife.

The judgment which may have the effect of transferring the title to land by estoppel, must, of course, be pronounced by a court acting within the limits of a jurisdiction which authorizes it. It follows that if the court in its pronouncement be acting by virtue of a special and limited statutory jurisdiction, it must look to the law conferring it. We mention this rule in passing, because the judgment on which the respondent relies was entered in the exercise of a power which we have justly characterized as “most extraordinary,” ánd of which we have said: “Its exercise often operates oppressively as well as vexatiously to the citizen whose property is taken. Such high prerogative is only allowed where the plain letter of the law permits it, and under a careful observance of the formalities prescribed for the owner’s protection.’ ” [Railway v. Railway, 138 Mo. 591, quoting from Cooley’s Constitutional Limitations, page 651.]

The jurisdiction exercised in the appropriation of land for public purposes is circumscribed by Section 21 of Article 2 of the State Constitution, which distinctly provides with respect to compensation that “until the same shall be paid to the owner, or into court for the owner, the property shall not be disturbed or the> proprietary rights of the owner therein divested.” -Ik is not contended here that the compensation was paid to the then owner, nor was it ever paid into court for any purpose. On the contrary,. the court refused to order its payment and a situation was thereby created in which these appellants felt compelled to apply to the court for an order that it be paid directly to them. The situation was thus created in which we are now called upon to determine whether’ the court acted within its jurisdiction in making the order that it be paid by the railway company directly to this respondent, so that its act amounted to an adjudication of this title. The money was in the possession of the railroad company. It owed it to neither of the claimants, as the condemnation was not complete. Nothing but its payment into court or to the true owner, could complete it. It asked no advice for the court. Its managing officer was himself a claimant of the fund and it simply stood by to wait what he might do in its interest or his own, as the case might be.

The statute authorizing the condemnation proceeding (1909, Sec. 2360) provides as follows: “It shall not be necessary to make any persons party defendant in respect to their ownership, unless they are either in actual possession of the premises to be affected claiming title,' or have a title to the premises appearing of record upon the proper records of the county.’'’ The company conformed to this provision by making both Murphy, who was in possession claiming title, and Barron who held a recorded sheriff’s deed, the defendants. Under these conditions commissioners were appointed to assess the damages for the appropriation of the right of way through the land, which of course included not only the value of the strip, but also the amount of damages to the entire tract resulting from the use appropriated. It was thereupon necessary for the railroad company to pay to the clerh of the court in which the proceeding was pending the amount of damages so assessed, within ten days from the filing of the report, unless it should elect within that time to abandon the proposed appropriation, which it might do subject to the payment of costs and damages. [Railway v. Railway, 138 Mo. 591.] Upon the payment to the clerk the Railway Company was out of the contest. [Id., Sec. 2362.] It had nothing to do with the rights of those sued as owners. Nor had they anything further to do with the condemnation proceeding. In the absence of- an appeal from the assessment, and no appeal was taken in this case, the condemnation was closed and the book sealed. Any contest which the former claimants might then have related solely to the fund, and not to the land, and involved no question pertinent to the contest between the company and the owners.

That this is the theory upon which the statute relating to the condemnation of lands for public uses is framed is evident. By its terms the public suffers no delay in the acquisition of the land, and the claimants are given a fund which in every respect constitutes the subjeect-matter of any controversy which they may have had with reference to its ownership. The process is not given in aid of any private controversy, but to serve a public purpose. Thenceforth the company, a mere agent for the public with reference to its easement, may not be permitted to use its extraordinary powers as such agent in aid of a personal controversy in no way related to its public function. ' The jurisdiction of the court in the determination of such, collateral controversies arises from the possession of the fund alone. The proceeding is in rem and jurisdiction cannot exist without the res. It was no more effective to determine which of these parties was the owner of the land than would be the determination of arbitrators outside the court. It is unnecessary to determine what effect a judicial determination of the ownership of such a fund in the hands of the clerk might have upon the collateral question of ownership of the remaining land/

It necessarily follows from what we have here said that the judgment is reversed and the cause remanded to the Butler Circuit Court for further proceedings in accordance with this opinion.

Railey, C., concurs.

PER CURIAM: — The foregoing opinion of Brown, C., is adopted as the opinion of the court.

All of the judges concur; Bond, P. J., in the result.


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    THE STATE ex rel. MARY H. McCLINTOCK et al. v. JULES E. GUINOTTE, Judge of Probate Court.
    In Banc,
    July 15, 1918.
    1. CONSTITUTIONAL LAW: Descents and Distributions: Wills. There is no constitutional provision restricting the power of the Legislature to change or modify the laws relating to descents and distributions or the laws relating to wills.
    2. -: Inheritance: Not Natural Bight. Inheritance of property is not an absolute or natural right. There is no constitutional provision which would prohibit the Legislature from changing or abolishing entirely the law as to descents and distributions, whether the transmission of 'property be by will or .by intestacy. The right to inherit property is neither a natural right, nor a constitutional right in this State, but a right which the sovereign may grant or withhold, or may grant upon condition; and since there is no constitutional restriction, the Legislature may abolish or modify the laws permitting the transfer of property by will, as well as statutes governing descents and distributions, and may say what portion, upon an owner’s death, shall be appropriated by the State, and to whom and in what proportions the balance shall go.
    3. -: Inheritance’ Tax. The right of the State to foreclose absolutely or partially the right to inherit property, by law or will, and to say what is to become of it when death forecloses the owner’s right to control it, is not strictly the exercise of the taxing power, although the percentage to be retained by the Stale is designated in the statute as a tax, but is the exercise of that other power which inheres in sovereignity, unless restricted by the .Constitution, to say what shall be done with the property upon the owner’s death. The designation of the portion to be retained or collected by the State as a tax is, in effect, an expression of the condition upon which the persons designated in the statutes of descents and distributions or in the testator’s will may take the property, and is not a tax at all.
    4. -: -: Constitutional Bestrictions. Since a statute pre- ■ scribing the amount of inheritance taxes shall be imposed on devises or inheritances is not an exercise of the taxing power, the validity of the statute .is not affected by the divers and sundry constitutional restrictions .relating to taxation.

      5. -: -: Repeal of Conflicting Statutes. The fact that the Act of 1917 designates the portion of an inheritance wnich the State is to retain or collect as a tax and that it does not in express words repeal statutes relating to descents and distributions or wills, does not make it an exercise of the taxing power. In spite of those things, it operates to repeal so much of those statutes as conflict with it.
    6. -: -: Due Process. An inheritance law, which requires the probate court to appraise the property owned by a decedent, and to exempt $15,000 of that devised to or inherited by his widow and $5,000 of that devised to or inherited by each of his children, and requires an appropriation by the State of certain graduated percentages of the balance, as a condition of their receiving the inheritances or devises, not being an exercise of the power of taxation, does not in any sense deny to them due process of law.
    7. -:--: Title Act: Repeal of Conflicting Existing Statutes. The title to the Inheritance Law of 1917 is in all respects sufficient, although the body of the act modifies or repeals, not by express words but by affirmative - provisions, certain conflicting portions of the statutes relating to descents and wills, and no reference is made to them in the title. The body of the act is within the purview of the title and is clearly indicated by it, and that is sufficient; and that being true, so much of the existing statutes as conflict with it will be held to be to that extent repealed or modified.
    8. -: -: Payment into State Treasury. Devisees or heirs, whose inheritances or devises have by the probate court been charged by its judgment with taxes according to the Inheritance Law, are not, in a certiorari to that court,' by which they attack the constitutionality of said act, in any position to raise the point that the act violates that portion of the Constitution which provides that no money shall be diverted from the State Treasury except by proper appropriation bills. Whether that portion of the act requiring the money to be paid into the State Treasury and providing that upon proof of an erroneous payment the amount of the tax erroneously paid may be refunded, is valid or invalid, does not concern them, and is not in the case, and therefore is not decided, for even if that part of the act is invalid the rest of it is not.
    9. -: -: Local or Special Law. The Inheritance Law of 1917 is a general and not a special or local law.
    10. -: -: Graduated: Unnatural Classification: Public Welfare., The classifications made by the Inheritance Law of 1917, which exempts from the tax $15,000 of decedent’s property for the widow and $5,000 for each child, and fixes a tax of one per cent on the balance up to $20,000, and a tax of two per cent on the next $20,000, and a tax of three per cent on the next $40,000, and larger percentages, by a graduated scale, on larger amounts, is not unreasonable. The reasonableness of a classification is to be measured in the light of modern public welfare, and that may require a graduation of the tax in proportion to the amount of property given to the legatees or heirs by the State, which has the power to appropriate the whole of decedent’s property upon his death. A law which classifies the recipients of the State’s favor according to the amounts received is not an unreasonable classification.
    11. -: -: Taxation on Property: Uniform: According to Value: Public Purpose. The Inheritance Law of 1917 is not an exercise of the taxing power of the State; but even if it be the exercise of the taxing power, it is not a tax upon property, but a tax upon the transmission or succession of property upon the death of the owner, and not being a tax upon property it does not violate the constitutional provision declaring that taxes can be levied only for a public purpose, or the provision that taxes shall be uniform upon the same class of subjects, or the provision that all property subject to taxation shall be taxed in proportion to value.
    12. -: -: Classification According to Burden. There can be a class within a class, and a classification by an inheritance law of recipients of a decedent’s property according to amounts received and kinship is not unreasonable. Property passes upon the owner’s death to others only by the grace of the State, and if the burdens imposed as a condition of succession be graduated according to amounts received or relationships to him they do not constitute an unconstitutional classification,- even though they be imposed by an- exercise of the taxing power. But the provisions of the Constitution concerning taxation have reference to those burdens or taxes fixed by law which are recurrent at fixed periods, not to duties imposed which occur only once, and hence they are not applicable to what is ordinarily denominated an inheritance tax.

      Certiorari.

    Writ quashed.

      Beardsley & Beardsley, Martin E. Lawson, and John M. Atkinson, for appellant.
    (1) The Inheritance Tax Act of 1917 is violative of Section 3 of Article 10 of the Constitution of Missouri in that said tax is (a) not uniform upon the same class of subjects, as it provides for a graduated or progressive tax on the same class of subjects, and (b) provides different exemptions on the same class of subjects. State ex rel. v. Switzler, 143 Mo. 287; State ex rel. v. Henderson, 160 Mo.-190; Knowlton v. Moore, 178 U. S. 1. c. 70; Cope’s Estate, 191 Pa. St-. 24; State ex rel. v. Ferris, 53 Ohio St. 314; Haggerty v. State, 55 Ohio St. 613; Ohio Laws 1894, p. 169; Allen v. Smith, 84 Ohio St. 292; Snell v. State Railway Company, 60 Ohio St. 269; Southern Gum Company v. Laylin, 66 Ohio St. 594; State v. Hamlin, 86 Me. 495; Magoun v. 111. Trust & Savings Bank, 170 U. S. 292; City of St. Louis v. Speigel, 75 Mo. 145; City of St. Louis v. Speigel, 90 Mo. 587; City of St. Louis v. Bowler, 94 Mo. 630; City of Independence v. Gates, 110 Mo. 374; Kansas City v. Whipple, 136 Mo. 475; Kansas City v. Grush, 151 Mo. 128; State ex rel. v. Ashbrook, 154 Mo. 375; State v. Bengsch, 170 Mo. 81; State ex rel. v. St. Louis, 216 Mo. 91; State v. Miksicek, 225 Mo. 561; State v. Broadnax, 228 Mo. 25; Levee District v. Railroad, 240 Mo. 614; State ex rel. v. Burton, 266 Mo. 721; Magoiin v. 111. Trust & Saving's Bank, 170 TJ. S. 283. (2) Said Inheritance Tax Act of 1917 is violative of Section 43 of Article 4 of the Constitution of Missouri which provides that all revenue collected and moneys received by the State from any source whatever shall go into the Treasury, and the General Assembly shall have no power to divert the same or to permit money to be drawn from the Treasury except in pursuance of regular appropriations made.-by law, in that said act provides that the State Treasurer shall permit money to be drawn from the Treasury without appropriations first being made by law. Ex-parte Lucas, 160 Mo. 218; State v. Schramm, 199 S. W. 194; Friend v. Levy, 76 Ohio St. 50; State ex rel. v. Walsh, 28 Wis. 549; State v. Bockstoek, 136 Mo. 353; State v. Bengsch, 170 Mo. 114. (3) Said Inheritance Tax Act of 1917 violates Subsections 16 and 21 of Section 53 of Article 4 of the Constitution of Missouri which provides that the General Assembly shall not pass (a) any local or special law changing the law of descent or succession, or (b) any special law affecting the estates of minors or persons under disability. Re Cope’s Estate, 191 Pa. St. 24-25; Hager v. Walker, 128 Ky. 12; Exparte Lucas, 160 Mo. 230; State ex rel. v. Burton, 266 Mo. 720. (4) Said Inheritance Tax Act of 1917 violates Section 30 of Article 2 of the Constitution, of Missouri and Section 1 of the Fourteenth Amendment to the Federal Constitution, in that said act deprives relators and other persons of property without due process of law. Thorpe v. Miller, 137 Mo. 231; Ferry v. Campbell, 110 Iowa, 290; Davidson v. Board of Admrs. of New Orleans, 96 U. S. 97; Embree v. Kansas City & L. B. Road D'ist.,. 240 U. S. 242. (5) Said Inheritance Tax Act of 1917 violates Section 28 of Article 4 of the Constitution of Missouri, in that said Act (a) contains more than one subject, and (b) which subjects are not clearly expressed in its title. St. Louis v. Tiefel, 42 Mo. 578; State v. Miller, 45 Mo. 495; State ex rel. v. Miller, 100 Mo. 439; State v. Bronson, 115 Mo. 271; Lynch v. Murphy, 119 Mo'. ■163; State ex rel. v. Slover, 134 Mo. 10; Gabbert v. Ry., 171 Mo. 84; State v. Coffee & Tea Co., 171 Mo. 634; Ferguson v. Gentry, 206 Mo. 189. (6) Said Inheritance Tax Act of 1917 violates the uniformity clause of said Section 3 of Article 10 of the Constitution of Missouri, in that said act classifies all beneficiaries into five legislative classifications, which classifications are purely arbitrary and discriminatory. Kansas City v. Grush, 151 Mo. 135.

      F'ra/nk W. McAllister, Attorney-General, 8. F. Shelley, George V. Berry, Thomas J. Cole and John T. Gose, Assistant Attorneys-General, for respondent.
    (1) History of inheritance taxation. Gibbon’s Decline and Fall of the Roman Empire, pp. 133, 163 164; West on Inheritance Tax, p. 11; Dowell’s History of Taxation in England, 148; State v. Alston, 94 Tenn. 674; Magoun v. 111. Trust & Savings Co., 170 U. S. 283; State v. Hamlin, 86 Me. 495; Blakemore & Bancroft, Inheritance Taxes, ch. 4, p. '13; Ross, Inheritance Taxation, p. 17; Knowlton v. Moore, 178 U. S. 41; Matter of McPherson, 104 N. T. 306; Pollock v. Farmers Loan & Trust Co., 158 U. S. 601; In re McKennan, 130 N. W. (S. D.) 33; Appeal of Nettleton, 76 Conn. 235; Eeview of Eeviews, February, 1893; Maguire v.' University, 271 Mo. 363. (2) Inheritance taxation from an ecomomic standpoint. Max West, Monograph on Inheritance Tax, p. 189; Adam Smith, Wealth of Nations, Book 5, Chap. 2, Part 2; Mills, Principles of Political Economy, Book 5, Chap. 11, sec. 3; Minnesota Tax Commission Eeport, 1910; In re Morris, 138 N. C. 259; State v. Bazille, 97 Minn. 16; Magoun v. 111. Trust & Savings Co., 170 U. S. 293; In re McKennan, 130 N. W. (S. D.) 38; Knowlton v. Moore, 178 Ü. S. 109; Blakemore .& Bancroft, Inheritance Taxes, chap. 3. (3) The power of the General Assembly to levy an inheritance tax is an inherent power. Snyder v. Bettman, 190 U. S. 252; Magoun v. 111. Trust & Savings Bank, 170 U. S. 292; Booth v. Commonwealth, 130 Ky. 88; Matter of McPherson, 104 N. Y. 306; Eury v. State, 74 Ohio St. 448; Schoolfield v. Lynchburg, 78 Va. 372; State v. Dalrymple, 70 Md. 294; State v. Clark, 30 Wash. 439; In re Morris, 138 N. C. 259; State v. Lancastér, 4 . Neb. 537; In re Joslyn, 76 Vt. 88; In re McKennan, 130 N. W. (S. D.) 33; Mager v. Grima, 8 How. 493; People v. Griffith, 245 111. 532; Appeal of Nettleton, 76 Conn. 235; State ex rel. v-. Henderson, 160 Mo. 216; Eoss, Inheritance Taxation, see. 14, p. 20.. (4) An inheritance tax is not a property tax. State ex rel v. Henderson, 160 Mo. 215; Knowlton v. Moore, 178 U. S. 41; Magoun v. 111. Trust & Savings Bank, 170 • U. S. 283; United States v. Perkins, 163 U. S. 625; Plummer v. Coler, 178 U. S. 115; National Safe & Deposit Co. v. Illinois, 232 U. S. 58; Scholey v. Eew, 90 U. S. 331; State v. Handline, 100 Ark. 175; In re Wilmerding, 117" Cal. 281; Brown v. Elder, 32 Colo. 527; Koehersperger v. Drake,- 167 111. 122; McGhee v. State, 1Ó5 Iowa, 9; Booth v. Commonwealth, 130 Ky. 88; Succession of Kolan, 115 .La. 71; State v. Hamlin, 86 Me. 495; State v. Dalrymple, 70 Md. 294; Minot v. Winthrop, 162 Mass. 113; Union Trust Co. v. Probate Judge, 125 Mich. 484; State v. Bazille, 97 Minn. 11; Gelsthorpe v. Purnell, 20 Mont. 299; State v. Vin'sonhaler, 94 Neb. 675; Hartmann’s Appeal, 70 N. J. Eq. 664; Matter of White, 208'N. Y. 64; Morris Estate, 138 N. C. 259; In re McKennan, 130 N. W. (S. D.) 33; State v. Alston, 94 Tenn. 674; In re'Joslyn, 76 Vt. .88; Eyre v. Jacob, 14 G-ratt. 429; White v. Tax Commission, 42 Wash. 360; Beals v. State, 139 Wis. 544; Kingsbury v. Chapin, 196 Mass. 533; In re Touhy, 35 Mont. 431; State v. Bullen, 143 Wis. 518; In re Kennedy, 157 Cal. 517; In re Macky, 45 Colo. 316; In re Speed, 203 U. S. 553; Humphreys v. State, 70 Ohio St. 67; Knox v. Emerson, 123 Tenn. 409; Attorney-General v. Stone, 209 Mass. 186; Blakemore & Bancroft, Inheritance Taxes, chap. 2; Ross, Inheritance Taxation, secs. 4 and 5; Gleason & Otis, Inheritance Taxation, pp.. 1-11; Mager v. Grima, 8 How. 493. (5) Section 4 of Article 10 of the Constitution of Missouri, providing that all property subject to taxation shall be taxed in proportion to its value, relates only to a tax on property, and does not apply to excise taxation or taxes other than those on property. Massachusetts Bonding & Ins. Co. v. Chorn, S-. W. Advance Sheets, April 24, 1918; Bankers’ Life v. Chorn, 186 S. W. 682; Masonic Aid v. Waddill, 138 Mo. 628; Aurora v. Mc-Gánnon, 138 Mo. 38; American Express Co. v. St. Joseph, 66 Mo. 675; Ward v. Board, 135 Mo. 309; State ex rel. v. Henderson, 160 Mo. 190; State v. Bixman, 162 M°. 1; Glasgow v. Rowse, 43 Mo. 479; St. Louis v. Green, 7 Mó. App. 468, 70 Mo. 562. (6) Section 3 of Article 10 of the Constitution of Missouri, providing that taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, is complied with when the tax operates alike upon all those similarly situated or in like circumstances. State v. McGannon, 138 Mo. 49; Masonic Aid v. Waddill, 138 Mo. 637; Pacific Express Co. v. Seibert, 142 U. S.. 350; Bankers’ Life v. Chorn, 186 S. W. 683; Kansas City v. Richardson, 90 Mo. App. 456; St. Louis v. Green, 7 Mo. App. 468; City v. Green, 70 Mo. 562; State ex rel. y. Henderson, 160 Mo. 216. (7) Classification according to degree of relationship, discrimination between lineal and collateral relatives and strangers to the blood of the decendent, is now well recognized and firmly established as being within the power and discretion of the Legislature; and such classification and discrimination is held not to offend any constitutional rule of uniformity and equality. Keeney v. New York, 222 U. S. 536; Estate of Wilmerding, 117 Cal. 281; Estate of Campbell, 200 U. S.' 87; In re McKennan, 130 N. W. 33; Kochersperger v. Drake, 167 111. 122; Magoun v. Illinois Trust & Savings Bank, 170 IT. S. 287; Knowlton v. Moore, 178 IT. S. 41; Estate of Magnes, 32 Colo. 527; Appeal of Nettleton, 76 Conn. 235; Billings v. State, 189 111. 472, 59 L. R. A. 807; Booth v. Commonwealth, 113 S. W. (Ky.) 61; State v. Hamlin, 86 Me. 495, 41 Am. St. 569, 25 L. R. A. 632; Tyson v. State, 28 Md. 577; State v. Dalrymple, 70 Md. 294, 3 L. R. A. 372; Minot v. Winthrop, 162 Mass. 113, 26 L. R. A. 259; Frothingham v. Shaw, 175 Mass. 59, 78 Am. St. 475; Union Trust Co. v. Wayne Probate Judge, 125 Mich. 487; State v. Bazille, 97 Minn. 11, 6 L. R. A. (N. S.) 732; State v. Vance, 97 Minn. 532, 106 N. W. 98.; Drew v..Tift, 79 Minn. 175, 75 Am. St. 446, 47 L. R. A. 525; State v. Henderson,' 160 Mo. 190; Gelsthorpe v. Furnell, 20 Mont. 299,- 39 L. R. A. 170; Thompson v. Kidder, 74 N. H. 89; Éstate of McPherson, 104 N. Y. 306, 58 Am. Rep. 502; Pullen v. Commissioners of Wake Co., 66 N. C. 361; Hagerty v. State, 55 Ohio 613; State v. Alston, 94 Tenn. 674, 28 L. R. A. 178; Eyre v. Jacob, 14 Graft. 422, 72 Am. Dec. 367; State v. Clark, 30 Wash. 439; Nunnemacher v. State, 129 Wis. 190, 9 L. R. A. (N. S.) 121; Wallace v. Myers, 38 Fed. 184, 4 L. R. A. 171; In re Benton, 234 111. 366; In re Touhy, 35 Mont. 431; Dixon v. Ricketts, 26 Utah, 215; In re Fox, 154 Mich. 5; Commonwealth v. Randall, 225 Pa. St. 197; Beals v. State, 139 Wis. 544; Ross on Inheritance Taxation, sec. 21; Blake-more & Bancroft, Inheritance Taxes, sec. 62. ■ (8) The power and right of the Legislature to grant exemptions is now generally conceded. The right to make exemptions is involved in the right to select a subject of taxation. In re McKennan, 130 N. W. (S. D.) 33; Estate, of Wilmerding, 117 Cal. 281; Estate of Stanford, 126 Cal. 112, 45 L. R. A. 788; Estate of Magnes, 32 Colo. 527; Appeal of Nettleton, 76 Conn. 235; Ferry v. Campbell, 110 Iowa, 290, 50 L. R. A. 92; State v. Hamlin, 86 Me. 495, 41 Am. St. 569, 25 L. R. A. 632; Minot v. Winthrop, 162 Mass. 113, 26 L. R. A. 259; Union Trust Co. v. Wayne, 125 Mich. 487; Gelsthorpe v. Furnell, 20 Mont. 299, 39 L. R. A. 170; Pullen v. Commissioners of Wake Co., 66 N. C. 361; State v. Guilhert, 70 Ohio St. 229; State v. Alston, 94 Tenn. 674, 28 L. R. A. 178; Estate of Hickok, 78 Vt. 259; State v. Clark, 20 Wash. 439; High v. Coyne, 93 Fed. 450; Beers v. Glenn, 211 U. S. 477; Magoun v. 111. Trust '& Savings Bank, 170 U. S. 283; Booth v. Commonwealth, 130'Ky. 88; In re opinion of Justices, 79 N. H. 597; Commonwealth v. Randall, 225 Pa. St. 197; Beals v. State, 139 Wis. 544; In re Speed, 216 111. 23, 203 U. S. 553; In re Morris, 138 N. C. 259. (9) A progressive rate of taxation, or making the tax rate increase with the value of the estate transmitted, does not make a statute unconstitutional. Whether the progressive rate-he applied to both lineal and collateral heirs and strangers, or to collateral heirs alone, or only to distant relatives and strangers, is a matter within the discretion of the Legislature. In re McKennan, 130 N. W. (S. D.) 33; Keeney .v. New York, 222 U. S. 536; Estate of Magnes, 32 Cblo. 527; Appeal of Nettleton, 76. Conn. 235; Kochersperger v. Drake, 167 111. 122, 41 L. R. A. 446; Union Trust Co. v. Durfee, 125 Mich. 487; State v. Bazille, 97 Minn. 11, 6 L. R. A. (N. S.) 732; State v. Vinsonhaler, 74 Neb. 675; Morris’s Estate, 138 N. C. 259; State v. Clark, 30 Wash. 439; Nunnemacher v. State, 129 Wis. 190, 9 L. R. A. (N. S.) 212; Knowlton v. Moore, 178 U. S. 41; Tyson v. State, 28 Md. 577; Magoun v. Illinois Trust & Savings Bank, 170 U. S. 283; Ross on Inheritance Taxation, sec. 26; Blakemore & Bancroft, Inheritance Taxes, see. 64; In re Fox, 154 Mich. 5;. State v. Guilhert, 70 Ohio St. 255. (10) The Inheritance Tax statute does not violate the Fourteenth Amendment to the Federal Constitution providing for equal protection of the laws and due process of law. Pacific Express Co. v. Seibert, 142 U. S. 339; Magoun v. Illinois Trust & Savings Bank, 170 U. S. 293. (11) Section 12, Inheritance Tax Act, does not contemplate a refund by the treasurer in an unconstitutional manner. Lowery v. School Trustees, 140 N. C. 41. Section 12 provides for a mere detail in the administration of the law, and even though it were unconstitutional, it would not invalidate the entire act. Union Trust Co. v. Durfee, 125 Mich. 495; In re Keeney, 194 N. Y. 286; Friend v. Levy, 76 Ohio St. 50; Blakemore & Bancroft, Inheritance Taxes, sec. 37; State ex rel. v. Henderson, 160 Mo. 217; Matter of McPherson, 104 N. Y. 306. (12) The classification in the Inheritance Tax Act is not arbitrary and discriminatory. Kochersperger v. Drake, 167 111. 122; Magoun v. Illinois Trust & Savings Bank, 170 U. S. 287; Knowlton v. Moore, 178 U. S. 41; In re McKennan, 130 N. W. 33; In re Fox, 154 Mich. 5; Keeney v. New York, 222 U. S. 536; State v. Guilbert, 70 Ohio St. 255; and, generally, authorities cited under Points 6, 7, 8 and 9 above.
   GRAVES, J.

This is certiorari to the probate court of Jackson County. To our writ return has been made by certifying up the full record. The real point is the validity or non-validity of the 1917 Act of the Missouri Legislature, commonly called the Inheritance Tax Law, Laws of Missouri 1917, page 114. The title of the act reads:

“AN ACT providing for a tax on the transfer of gifts, legacies, inheritances, bequests, devises, appointments and successions; providing for its payment and collection, establishing and enforcing liens therefor; providing the method of procedure for determining the amount thereof arid liability therefor and providing for suits to quiet title against claims of liens arising by reason thereof and to repeal Article 14, Chapter 2, of the Revised Statutes of Missouri of 1909, entitled ‘ Collateral Inheritance Tax,’ and all amendments thereto.”

The probate court of Jackson County was proceeding under this Act of 1917, in the estate of Robert McClintock, deceased. The court appointed one John A. Kurtz to appraise and fix the clear market value of each interest in the estate, which was done.

By his will Robert McClintock, deceased, had divised all of his large estate to his wife, Mary H. McClintock, his son, Robert S. McClintock, and his two granddaughters, all of whom are relators herein. The said Kurtz found the value of the interests and fixed the taxes as follows:

“(1) Robert S. McClintock, son, real estate of the value of $100,000, personal property of the value of $28,162.50, making a total value of $128,162.50, and deducted therefrom, as a legal exemption, the sum of $5000, and charged an inheritance tax' against the re-mining sum of $123,162.50 at the rate of one per cent on the first $20,000, after allowing said sum of $5000 as a legal exemption, and two per cent on amounts from $20,000 to $40,000, and three per cent on- amounts from $40,000 to $80,000, and four per cent on amounts from $80,000 to $200,000, thus assessing and fixing the total inheritance tax charged against the interest of said relator; Robert S. McClintock, in the sum of $3,526.50; (2) Mary Agnes Keller, grand-daughter, personal property of the value of $28,250, and deducted therefrom as a legal exemption the sum of $5000, and charged an inheritance tax against the remaining sum of $23,250, at the rate of one per cent on the first $20,000, after allowing said sum of $5000 as a legal exemption, and two per cent on amounts from $20,000 to $40,000, thus assessing and' fixing the total inheritance tax charged against the interest of said relator, Mary Agnes Keller, in the sum of $265; (3) Martha Agnes Keller,' granddaughter, persona] property of the-value of. $28,250, and deducted therefrom as a legal exemption the sum of $5000, and charged an inheritance tax against the remaining sum of $23,250, at the rate of one per cent on the first $20,000, after allowing said sum of $5000 as a legal exemption, and two per cent on amounts from $20,000 to $40,000, thus assessing and fixing the total inheritance tax charged against the interest of said relator, Martha Agnes Keller, in the sum of $265; (4) Mary H. McClintock, widow, real estate of the value of $40,500, personal property of the value of $24,868.69, making a total of $65,368.69, and deducted therefrom as a legal exemption the sum of $15,000, and charged an inheritance tax against the remaining sum of $56,368.69, at the rate of one per cent on the first $20,000, after allowing said sum of $15,000, as a. legal exemption, and two per cent on amounts from $20,000 to $40,000, and three per cent on amounts from $40,000 to $80,000, thus assessing and charging the total inheritance tax charged against the interest of said relator, Mary H. McClintock, in the sum of $911.06, thus making the total inheritance tax charged against said estate of Robert McClintock, deceased, in the sum of $4967.56.”

The judgment of the probate court followed the recommendation of Kurtz, and it is this judgment which relators challenge here. They challenge this judgment and proceeding in the probate court, thus:

“Relators further state that said probate court was without any authority, power and jurisdiction in the premises, aforesaid, for the reason that said act providing for said inheritance tax, in pursuance of which said probate court proceeded in the premises, is unconstitutional, void and of no effect, because it is in conflict with and in violation of the Constitution of the State of Missouri and of the Cinstitution of the United States in the following particulars:

“(1) Section 30 of Article 2 of the Constitution of Missouri, which provides that no person shall be deprived of property without due process of law.

“(2) Section 28 of Article 4 of the Constitution of Missouri, which provides that no bill shall contain more than one subject, which shall be clearly expressed in its title.

“ (3) Section 43 of. Article 4 of the Constitution of Missouri, which provides that all revenue oollécted and moneys received by the State from any source whatever shall go into the Treasury, and’the General Assembly shall have no power to divert the same or to permit money to he drawn from the Treasury except in pursuance of regular appropriations made by law.

“(4) Subsection 16 of Section 53 of Article 4 of the Constitution of Missouri, which provides that the General Assembly shall not pass any local or special law changing the law of descent or succession.

“ (5) Subsection 21 of Section 53 of Article 4 of the Constitution of Missouri, which provides that the General Assembly shall not pass any local or special law affecting the estates of minors or persons under disability.

“(6) Section 3 of Article 10 of the Constitution of Missouri, which provides that taxes may he levied and collected for public purposes only and that they shall he uniform upon the same class of subjects within the territorial limits of the authority levying such taxes.

“(7) Section 4 of Article 10 of the Constitution o.f Missouri, which provides that all property subject to taxation shall be taxed in proportion to its value.

“(8) Section 8 of Article 10 of the Constitution of Missouri, which fixes the rate of the state tax on property.

“ (9) Section 1 of the 14th Amendment of the Constitution 'of the United States, in that said act (1) deprives relators and other persons of property without due process of law; and (2) denies to relators and other persons within its jurisdiction the equal protection of the law. ’ ’

This suffices to state the case.

I. Before taking up the things urged against this law, it might he well to see just what the law is, in fact. Throughout it speaks of a tax on transfer of property. But the word “tax” has a broad as well as a restricted meaning. We must consider the act as a whole to get the legislative idea. It is clear from a reading of this law that the lawmaking power was impressed with the idea that the right of inheritance was not an absolute right, hut on the other hand was a right which might or might not he granted by the State. It is also clear that the Legislature recognized its power to change and modify the law as to descents and distributions, for we have no constitutional provisions restricting the law-makers in this regard. Whilst by the Constitution we are compelled to recognize certain common law rules, yet we are not compelled to recognize them after the lawmakers of the State change or abolish them.

Inheritance of property is not an absolute or natural right, and is not a right which may not be abolished by the law-makers. We mean by this, that there is no constitutional provision in this State which would prohibit the law-making power changing or abolishing entirely the law as to descents and distributions. That we have changed these laws (and radically so) is made apparent by our decisions. [Perry v. Strawbridge, 209 Mo. 621.] If under the Constitution we can radically change such laws, we can likewise abolish them, and this on the theory that the right of inheritance of property is not a natural right, but one purely produced by the laws of the sovereign. In 9 R. C. L. p. 13, sec. 7, it is said:

“It has been asserted in a comparatively recent case, that the right to demand that property pass by inheritance or will is an inherent right subject only to reasonable regulation by the Legislature. It seems, however, that no authority can be found to .support this view, which is contrary, furthermore, to that of all the historians of law and of all economic writers. Indeed, the entire body of the law of descent and distribution seems to have been built upon the opposite conclusion, viz., that the right to take property, either real or personal, by inheritance, is purely statutory, and it is said that all statutes regulating the descent and distribution of interstate estates may be considered as positive, and, in some degree, arbitrary rules, which cannot be changed by the court in order to make them conform to its conception of right and justice in particular cases.”

The author has cited the numerous cases, which are practically all one way. The recent case to which he refers is that of Nunnemacher v. State, 129 Wis. 190. Even in the majority opinion of this casé, at page 198, ,we find this admission:

“We are fully aware that the contrary proposition has been stated by the great majority of the courts of this country, including the Supreme Court of the United States. The unanimity with which it is stated is perhaps only equaled by the paucity of reasoning by which it is supported. In its simplest form it is thus stated: ‘The right to take property by devise or descent is the creature of the law and not a natural right.’ [Magoun v. Ill. T. & S. Bank, 170 U. S. 283, 18 Sup. Ct. 594.] In Eyre v. Jacob, 14 Gratt. 422, it is stated more sweepingly thus: ‘It (the Legislature) may tomorrow, if if pleases, absolutely repeal the statute of wills,.and that of descents and distributions, and declare that upon the death of a party, his property shall be applied to the payment of his debts and the residue appropriated to public uses.’

“But it has been reserved for the Supreme Court of North Carolina to sweep away all natural property rights in a few terse sentences, which may well be quoted: ‘Property itself, as well as the succession to it, is the creature of positive law. The Legislature declares what objects in nature may be held as property; it provides .by what forms and on what conditions it may be transmitted from one person to another; it confines the right of inheriting to certain persons whom it defines heirs; and on the failure of such it takes the property to the State as an escheat. The right to give or take properly is not one of those natural and inalienable rights which are supposed to precede all government and which no government can rightfully impair.’ [Pullen v. Commrs., 66 N. C. 361.]”

Tlie learned judge who wrote that opinion writes interestingly upon the conceived natural right to inherit property, "but frankly concludes that the courts are against him. From an early day this court has been against the doctrine of the Wisconsin court. See the outline of the origin of our laws as to descents and distribution, by Scott, J., in Leakey v. Maupin, 10 Mo. 1. c. 370.

The right to inherit property is not a natural right, but a right conferred by the laws of the sovereign. It is not a constitutional right in our State. The sovereign may grant or withhold the right. The sovereign having the full power to withhold the right, may grant the right upon any conditions which it sees proper to impose, provided the conditions, so imposed, do not contravene constitutional provisions. The consensus of court views is thus expressed in 9 R. C. L. p. 14:

“As the right to take by descent is property only by reason of the fact that the law-making body has seen fit to make it such, the Legislature has absolute power to control the manner in which property shall descend and be distributed, subject, of course, to constitutional limitations, which, however, place no limit on the general Legislative control. Accordingly, when a man dies intestate the supreme authority of the law may give his personal property away according to its absolute will and pleasure, may enlarge the privilege of freedom from appropriation to the payment of debts, may impose, conditions or burdens on a right of suecéssion, or may even declare that on the death of a person his property shall be applied to the payment of his debts, and the residue appropriated to public uses. Similarly, the Legislature may, at will, change the laws of descent and distribution, subject only to the preservation of rights already vested by the operation of the prior law. Jurisdictionally, descent is entirely subject to the local regulation and control of the several States. The power of the Legislature with respect to the liability of the estate-for the intestate’s debts is considered elsewhere in this article.”

What is said as to descent and distribution under laws granting such, applies to descents and distributions by instruments (such as wills) which take effect upon the death of the party executing the instrument.

The sovereign power which can close the avenues of descent and distributions, as expressed in previous laws (whether civil, common or statutory), can with equal propriety reach the laws as to wills. In other words, the State, unless prohibited by the Constitution thereof, can prohibit entirely the transfer of property by will. Having the absolute power to prohibit, it can, on the doctrine, that the whole covers all the lesser parts, grant the right, and place thereon restriction. And these restrictions are valid (whatever they may be) unless in them can be found some violation of other constitutional provisions. So that under the great weight of the authorities, we rule (1) that the taking of property by inheritance or by will is, not an absolute or natural right, but one created by the laws of the sovereign power. This court has so said. [State ex rel. v. Henderson, 160 Mo. 1. c. 216.] (2) That this sovereign power (the State in this case) may foreclose-the right absolutely, or it may grant the right upon conditions precedent, which conditions, if not otherwise violative of our Constitution, will have to be complied with before the right of descent and distribution (whether under the law or by will) can exist. And (3) that this right of the State to foreclose absolutely, or partially, the right to inherit, by law or will, is not strictly the exercise of the taxing power of the State, but the exercise of that other power of the State which is inherent in its sovereignty, which allows the State or the Nation, to say what shall be done with the property owned by the citizen, at the time of his death. No provision of the Missouri Constitution stays the free hand of our law-makers as to the disposition of property owned by a citizen at the time of his death. It can be appropriated by the State, if the law-makers so decree. It may be partially taken, if the law-makers so decree. It may be permitted to descend (by will or otherwise) upon conditions precedent, if the law-makers so decree.

In this ease 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 eases 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 provisions as to taxation disappear from the case. 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 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 hot 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 reiat°r to those views. In the statement are 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 the sovereign power of the State, and cannot he 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 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 ease 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 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 matter of classifications in law. In other words the reasonableness of the classes created by a law must be weighed in the light of modern day public welfare. This public welfare might require qualified owners of property to pay tribute, or have exemptions, in accordance with and in proportion to the amount of property given them by the State. For under our paragraph one, relations of one deceased only get the property by virtue of a gift (through law) of the State. Not only so, but as held in State ex rel. v. Henderson, supra, we can' distinguish between degrees of relationship without making the classification unreasonable. In fact, what the State can do in its sovereign power can hardly be questioned, except upon constitutional grounds, and there are none here.

So that viewing the Act of 1917, from the angle.suggested by our point one, and from the questions presented by the pleadings therein, it should be held valid, and we so hold it. These are our views, and cover the entire case, but the questions urged by counsel, on the theory that the law is referable to the taxing power of the State, we will take next. We do not think it referable to that power, and to our mind what we have heretofore written disposes of this case.

IV. Going now to the proposition that this law is the exercise of the taxing power of the State, how stands the case? We are not without some authority here, as well as elsewhere. We have held that the tax, if it be or shall be called a tax, is not a tax upon property. [State ex rel. v. Henderson, 160 Mo. 1. c. 215; Maguire v. University, 271 Mo. 1. c. 363.] In the latter case, Bond, P. J., traces the history of such laws, and closes the discussion by saying:

“The constitutional principle upon which this excise or duty rests is that it is not a tax upon property, but only on th,e transmission of property, either by operation of law, or wills or gifts, to take effect upon death. [Ross, Inheritance Taxation, p. 25, sec. 19.]”

It will be observed that the learned writer does not say that it is a tax within the nsnal construction of that term. He does emphasize the idea that it is a duty imposed by the State upon the transmission of property. He in fact rules what we have ruled in our paragraph one, supra. The general rule seems to be, that, although it be considered as a tax of some character, it can not be considered a tax upon property. Not only is this the general rule, but it is so announced in this State. So that in considering the questions urged against the law, conceding that the law is the exercise of the taxing power of the State, we must proceed' upon the theory that it is not a tax upon property. This, because there is no dissent to that question in this State.

V. If it is not a property tax, as we have held, how stand the constitutional objections to the law? Under this proposition the first five points made in relators’ petition (set out in full in the statement) may be eliminated, because the discussion hereinbefore made eliminates them here, as well as under the question then under discussion.

It is urged that the law violates Section 3 of Article 10 of the Constitution. This section says that taxes can be levied for public purposes only. There is no question in this case that the money arising from the-enforcement of the present law (whether you call it a tax or something else) is used for public purposes. This section then further provides that the taxes so levied “shall be uniform upon the same class of subjects.” Nor can there be a question as to the uniformity of the tax or imposition, under the classes, designated by the law. Each class fixed by the law carries the same burden. So that this constitutional provision is not violated. Whether the classification is a reasonable one may with propriety be urged. But that the classes as made by the law (each covering a given line of transmissions of property) and that the particular class (made by the statute) covers all in the class and fixes upon all of the class a uniform burden, can not be gainsaid. The only question is as to the validity of the classification. We have held (in the collateral inheritance tax cases) that the making of collateral kin as a class, is not violative of law. [State ex rel. v. Henderson, 160 Mo. 190.] This, thus makes at least two classes to be recognized, direct and collateral kin. As a matter of public policy we have made those classes. But this is not all. In "White v. Railroad, supra, the question of classification is fully considered. If there is a reason for the class, the Legislature has full authority to act. Is there reason for classifying interests in an estate of different values into different classes, although such interests may be held by persons of the same degree of relationship to the deceased? This is the concrete question. We have no hesitancy in answering the question in the affirmative. Burdens, to be charged to an inherited estate, or taxes if you see fit so to call them, are the general class. But in White v. Railroad, 230 Mo. 287, we held that there might be a reason for having classes within a class. In burdens, or taxes, if you please to so call them, of the character here involved, it must be noted that the property only passes by the grace of the State. It is upon the right of succession that the obligation is imposed. Throughout the Union graduated burdens of this character (dependent upon the amount inherited) have been recognized, and under such circumstances we should he loth to hold that such sub-classifications were not within the power of the law-makers. We hold that they are.

But beyond all this, when we consider the .fact that Section 3 of Article 10 of the Constitution is but a part of the revenue and taxation scheme of the State, we are inclined to the view that it has reference solely to those burdens or taxes fixed hy law which are recurrent at fixed periods, not to duties imposed which only occur once. These are our individuals views, and under them* this provision has no application at all to the matter in hand. In these views we may be wrong, lienee the discussion on the theory that the classification was not violative of any rule.

If, however, the burden to be assumed by the party to whom the privilege of succession is granted by the law, is not a tax upon property, as we have held, and as the courts generally hold, then the inapplicability of any portion of Article 10 of the Constitution is within the line of reasoning in the cases of State v. Distilling Co., 236 Mo. 1. c. 268, 277; State v. Bixman, 162 Mo. 1; and St. Louis v. United Railways, 263 Mo. 1. c. 449.

VI. It is next urged that the law contravenes Section 4 of Article 10 of the Missouri Constitution. This 'too, is a part of our tax and revenue scheme. It simply says that “all property subject to taxation shall be taxed in proportion to value.” If, as we have held herein, and heretofore held, that the imposition made by this law is not a tax upon property, this section can in no way apply. This section applies to a tax upon property, not upon a mere privilege granted as to the succession of property. We do not think that either Section 3 or 4 of Article 10 of our Constitution apply to this law. We have given our views as to Section 3 supra, and as to Section 4 we take it that a mere statement of the section answers the question.

What is here said applies with equal force to Section 8 of Article 10. This section likewise has reference to a tax upon property. We hold that this is not a tax upon property. In fact in our judgment all of Article 10 of our Constitution refers to a scheme and method of fixing taxes upon property, which taxes are recurrent at given periods, and not to other, matters.

So that we rule, that under either theory of this case, the provisions of the law attacked, by the pleadings here, are' constitutional and not subject to the objections made. The scheme and general purpose of the law is a valid one and should be upheld. To say that we cannot have a graduated imposition (or tax, if you please to so call it) upon the right to succeed to the property of a deceased person is so well established elsewhere that we would he taking a step backward, to rule otherwise. We should not take such a step unless compelled so' to do by clear and applicable constitutional provisions.

The question of unreasonable classification, whilst not constitutional (White v. Railroad, 230 Mo. 1. c. 304), we have discussed, but feel that we might add a word.

The classification of subjects is a matter with the Legislature, and it is only when the courts can say that there is no reasonable basis for the classification that we should condemn the law upon that ground. Throughout the length and breadth of this Union graduated charges on the rights of sucession have been imposed, and have been upheld by the courts.

If the State has the right to give, or to withhold the property of the deceased citizen, as the courts generally hold, we can see no reason for saying that a law which classifies the recipients of the State’s favor according to the amount received, is not a reasonable classification. In cases of the kind here, what is there unreasonable about a classification which puts a recipient of a $20,000 donation from the State in one class and the recipient of a $10,000 donation in another class?

Upon the whole, considering only the questions by this record presented, the law challenged is a valid one, and the probate court of Jackson County was acting within legal lines when it did the things disclosed by the record returned to us in obedience to our writ of certiorari. It follows that its record should be sustained and our writ quashed. It is so ordered.

Bond, G. J., concurs in paragraph 4 and in the result; Walker, Blair and Williams, JJ., concur; Baris, J., concurs in result; Woodson, J., concurs in all of the opinion except paragraph1 4, as to which he expresses no opinion.