author: Spear, O. J. Price, J. Davis, J.

text:
    The State ex rel. Taylor, Jr., Prosecuting Attorney, v. Guilbert, Auditor of State.

      Inheritance tax — Power to impose taxes — Section 1 of article 2 of constitution — Limitation of taxing power — Section 2 of article 12 of constitution — Does not apply to excise taxes — Act of April 25, 1904 — Which operates uniformly — Not invalid because of exemption therein — Constitutional law.

    1. The power to impose taxes is a legislative power, and is vested in the general assembly by section 1 of article 2 of the constitution.
    2. Section 2 of article 12 is a limitation upon the taxing, power so far as the same applies to taxation of property, both • as to the method of taxation and the character and amount of property which may be lawfully exempted from taxation, and furnishes the governing principle for all laws authorizing taxes for general revenue on property. But this section has no application to taxes known as excise taxes.
    3. The act of April 25, 1904, entitled, “An act to impose a tax upon the right to succeed or inherit property,” being a tax not upon property but upon the right to inherit or succeed to property, the power to enact the same is not affected by the limitations of section 2 of article 12 of the constitution,
    4. An excise tax which operates uniformly throughout the state, and bears equally upon all persons standing in the same category, does not deprive any of the equal protection of the laws.
    5. The act of April 25, 1904, imposing a tax upon the right to succeed to or inherit property, is not in conflict with the constitution or bill of rights because of the exemption therein contained, and is a valid law.
    (No. 8973
    Decided June 7, 1904.)
    Quo Warranto.
    By Ms petition the relator gives the court to be informed that by the act of the general assembly,, passed April 25, 1904, entitled “An act to impose a tax upon the right to succeed to or inherit properiy, ’ ’ it is made the duty of the auditor of state, defendant herein, to proceed immediately to cause to he prepared blank books and forms upon -which to make the necessary returns and reports to carry into effect and operation the provisions of such act, and to provide for the charging and collection of the tax as therein provided, which duty defendant is about to perform and thereby to expend public moneys of the state. Relator says the act is null and void; that the exercise of the duties required and the exercise of the powers, privileges and franchises sought to be conferred thereby, are all in contravention of the constitution of Ohio and to the fourteenth amendment to the federal constitution. Wherefore relator prays that the defendant may be compelled to answer by what warrant or authority he claims to exercise the powers, privileges, and franchises about to be exercised by him, and that he be ousted and altogether excluded therefrom.
    To this petition a general demurrer was interposed by the defendant and the cause was heard and submitted on that demurrer.

      Mr. Edward L. Taylor, Jr., prosecuting attorney of Franklin county, and Mr. Augustus N. Seymour, for relator.
    The relator invokes the consideration of the court to the following propositions against the law in question:
    (1) The constitution of Ohio provides “All political power is inherent in the people. Government is instituted for their equal protection and benefit.” The attempt on the part of the legislature to impose a tax upon the right to succeed to or inherit property to the extent of two per cent, upon the value of such property in excess of $3,000 so succeeded to or inherited by any one person, is unconstitutional and void.
    (2) The failure to tax the same right of such persons as succeed to or inherit property the value of which will not exceed $3,000, will result in an unequal burden, if borne by all persons succeeding to ■or inheriting property, the value of which exceeds the amount.
    (3) Taxes upon inheritances rest upon the theory that the right to acquire property by descent or devise is' not a natural right, but that the state in return for the privilege conferred by its authority to so receive property may exact a charge upon its devolution; when the legislature undertakes to make such an exaction under the general grant of legislative power, it is controlled by the constitutional restrictions imposed upon that power for the equal protection of all persons within the state.
    (4) The constitution of Ohio, section 2, article 12, contains a limitation upon the general power to tax authorized by section 1 of article 28 of the constitution, and furnishes the governing principle for all laws authorizing taxation for general revenue- to be levied for any purpose, whether state, county, township or corporation. That principle and the object intended to be accomplished by its operation is to secure equality and uniformity in the imposition of public burdens.
    (5) Said section 2 of article 12 also contains a limitation upon the grant of power to the legislature to so far modify the general principle requiring equality and uniformity in the imposition of taxes as to exempt only the following property: “Burying grounds, public school houses, houses used exclusively for public worship, institutions of purely public charity, public property used exclusively for any public purpose and personal property to an amount not to exceed $200 for each individual.”
    '(6) The modification of the constitutional requirement of equality and uniformity contained in section 2 of article 12 of the constitution is limited to a power conferred upon the legislature to exempt the property named therein by general laws, from taxation. This modification of the general restriction as to equality and uniformity of all laws is exclusive in its operation, and the legislature in exempting persons, rights or property from taxation cannot go beyond the power therein conferred.
    (7) The attempt by this act to tax inheritances and by its provisions to further exempt all property inherited up to and including the amount of $3,000 from the burden of such tax, is in excess of the power, granted to the legislature to exempt from taxation, and therefore void.
    (8) No tax may be levied except in pursuance of law, and any law imposing a tax must state distinctly the object of the same to which only it may be applied (constitution of Ohio, article 12, section 5). The object of the act of April 25, 1904, is to increase the revenue of the state and it can be justified upon no other ground. It is, therefore, controlled by the requirements of equality and uniformity which form the governing principles for.all laws authorizing taxes tp be levied for general revenue. The attempt, therefore, to • distribute the burden of general state expense by the provisions of this act is so unequal that a large number of persons who may succeed to or inherit property in this state will escape the burden of the tax altogether, and the share-which should be rightfully borne by them will be placed upon a comparatively few persons who may be fortunate enough fcT inherit property of great-value.
    Many of the questions which suggest themselves-in a consideration of this law were argued and ably presented to this court upon the hearing of the ease-of State of Ohio ex rel. Schwartz v. Ferris, 53 Ohio St., 314, and the voluminous and able briefs that were furnished at that time are now upon file in this-court in that case. It was argued at that time before this court by able counsel — (1) that the right of succession or transmission of property cannot be taxed, under the constitution; (2) that the inheritance tax. under consideration at that time was a tax upon property and not upon the right of transmission or succession; (3) that property is the sole source of taxation for general revenue.
    Without, at this time, taking up the consideration of these three questions which were so vigorously urged upon this court, it is sufficient to say that the court after a full and thorough consideration and. discussion of the arguments then urged, saw fit, for reasons which were then deemed sufficient, to deny each of the above three propositions.
    After examining the able and exhaustive briefs of Mr. Warrington, Mr. McDougall, Messrs. Boynton & Horr and Mr. Ampt upon these questions, these brief s being-now on file in this court in State v. Ferris, we-do not care to further consider the propositions then so ably argued, but denied by the court, but will proceed to the objections to the a'ct of April 25, 1904, which seem insurmountable in the light of recent decisions. That the state may tax other things than, as specified in section 2 of article 12 of the constitution for the purpose of raising general revenue, seems to be fully sustained by the decisions of this court. State ex rel. v. Ferris, 53 Ohio St., 314; Alder v. Cincinnati, 56 Ohio St., 67; Southern Gum Co. v. Laylin, 66 Ohio St., 578.
    It must be further conceded that section 2 of article 12 of the constitution of Ohio is a limitation upon the general power of taxation granted to the general assembly by section 1 of article 2. Hill v. Higdon, 5 Ohio St., 243; Reeves v. Treasurer, 8 Ohio St., 333; Baker v. Cincinnati, 11 Ohio St., 540.
    We wish to challenge the new inheritance tax law under the following propositions:
    I. Section 2 of article 12 of the constitution furnishes the governing principle for all taxation for general revenue. City of Zanesville v. Richards, 5 Ohio St., 590; Cincinnati Gas Co. v. State, 18 Ohio St., 237; State v. Hipp, 38 Ohio St., 199; Baker v. Cincinnati, 11 Ohio St., 534; Wasson v. Commissioners, 49 Ohio St., 622; article 12, section 2, constitution.
    II. Section 2 of the bill of rights requires that all laws imposed by the state government shall result in an equal protection and benefit to all the people within its jurisdiction. The right to exempt from taxation at all is a modification of this constitutional protection, and except as so modified by the latter part of section 2 of article 12 relating to exemptions from taxation, the constitutional protection of equality and uniformity guaranteed by section 2 of the bill of rights is unimpaired and protects all of the people of the state.
    . Although the grant of power to the general assembly by section 1 of article 2 may be exercised by imposing a tax upon franchises, privileges or property as the general assembly may deem best, that power when exercised must operate for the equal protection and benefit of all the people. The act of April 25, 1904, fails to protect equally the people who exercise the right and privilege of succeeding to or inheriting property. The attempt of the legislature to subject to taxation the right to succeed to or inherit property, up to the amount of $3,000, creates a class of persons who may enjoy special privileges and immunities and thereby affords an unequal advantage in respect to the burden imposed upon such right by that act. By section 2 of article 12 the legislature is authorized to exempt from taxation the following property: “Burying grounds, public school houses, houses used exclusively for public worship, institutions of purely public charity, public property used exclusively for any public purpose and personal property to an amount not to exceed $200 per each individual,” and in allowing such exemptions the legislature ■ is required to fix the amount by general law. All power to exempt from taxation is found in this section of the constitution and in no other, and this power to exempt from taxation must be held to modify section 2 of the bill of rights to the extent that it authorizes laws relating to taxation to be unequal to the extent of the exemption specifically authorized. This is a rigid limitation. When the legislature has authorized an exemption from taxation from the general laws relating to taxation, the property or rights authorized to be exempted by that section, the limitation of section 2 of the bill of rights, that government is instituted for the equal benefit and protection of the people, is an absolute controlling restriction. The law of April 25, 1904, is subject to tbe very objection which this court found insurmountable when urged against tbe act of April 20,1894, under consideration in the case of the State of Ohio ex rel. v. Ferris.

    In the law of April 25, 1904, providing for a direct inheritance tax, no charge is exacted from the value of property succeeded to or inherited by any one person which does not exceed $3,000, and in the taxation of such estates as do exceed the sum of $3,000 succeeded to or inherited by any one person, only the value in excess of the amount of $3,000 is taxed.
    It is apparent, therefore, that a distinct line of division is fixed by the legislature for the operation of the new act.
    It seems to us that this section of the law is a distinct violation of the constitutional requirement of uniformity and equality in the operation of all laws, and also a violation of the express prohibition against exemptions exceeding the sum of $200. The power to exempt from taxation, granted by the constitution to the legislature in section 2 of article 12, is exclusive of all other exceptions; and that all persons may enjoy equal protection and benefit of the laws passed by a government which is instituted for these purposes, requires that the limitation on the power to exempt from taxation shall be universally applied.
    If our view of the operation of the act of April 25, 1904, imposing a direct inheritance tax is correct, and the tax imposed thereby will not operate equally and uniformly upon all persons in the state, it is obnoxious to the principle of law announced in the third paragraph of the syllabus of the decision of
      State ex rel. v. Ferris; Hocking Coal Co. v. Rosser, 32 Ohio St., 12.
    The act of April 25,1904, can no more be defended against the objection of inequality in its operation than was the act of April 20, 1894, denounced in the decision of the Ferris case.
    III. If the act be construed as a charge for the exercise of a privilege, it violates section 26 of article 2 of the constitution of Ohio, and the section of the fourteenth amendment to the federal constitution, that no statute shall deny to any person within its jurisdiction the equal protection of the laws. State v. Nelson, 52 Ohio St., 88.
    In the case of Curry v. Spencer, 61 N. H., 624, the court held the general inheritance law unconstitutional because repugnant to the uniformity requirement in the bill of rights of that state. State ex rel. Sanderson v. Mann, 76 Wis., 469; State ex rel. Davidson v. Gorman, 40 Minn., 232.
    We contend that this statute is repugnant to the constitution of Ohio, because by the tax which it imposes, an unequal burden is imposed upon some of the people within the state, and that the inequality is in fact based upon a classification which is purely arbitrary and without foundation.

      Mr. Wade H. Ellis, attorney general; Mr. George H. Jones, assistant attorney general, and Mr. S. W. Bennett, special counsel, for defendant.
    I. There is no inalienable right to devise or inherit property.
    -The act now before the court taxes the right to succeed to or inherit property. By express language tax is “to be borne by the person so succeeding to or inheriting” the estate of á decedent or any portion thereof. The argument has been made in the discussion of inheritance taxes that some natural or inalienable right to dispose of or to succeed to, property, is violated in such laws. This argument is abundantly and conclusively answered in this state in the case of Patton v. Patton, 39 Ohio St., 590, where an attach was made by counsel for the Home and Foreign Missions of the Presbyterian Church upon that section of the Wills act making void all devises or bequests to charitable institutions if made within one year prior to the decease of the testator.
    The decisions in other jurisdictions clearly uphold this well established principle: that the right to dispose of property after death, as well as the right to inherit by descent or devise are purely the creatures of the statutes and within the power of the state to regulate or control. United States v. Perkins, 163 U. S., 625; Strode v. Commonwealth, 52 Pa. St., 181; Eyre v. Jacob, 14 Gratt., 422; Schoolfield v. Lynchburg, 78 Va., 366; State v. Dalrymple, 70 Md., 294; In re Merriam’s Estate, 141 N. Y., 479; State v. Hamlin, 86 Me., 495; State v. Alston, 94 Tenn., 674; In re Wilmerding, 117 Cal., 281; Minot v. Winthrop, 162 Mass., 113; Dos Passos on Collateral Inheritance Tax, 20.
    II. This is not a property tax and the limitations in section 2 of article 12 do not apply.
    It is well settled by this court that a tax upon inheritance is not a property tax. This was decided in State v. Ferris, where it was said that when the operation and effect of the statute there attacked were considered it might be regarded as “taxing the right or privilege rather than the property.” The act now in controversy does not even profess to be a tax upon property. It distinctly declares the-imposition of a burden upon the right or privilege of inheriting property.
    To the same effect is the opinion of the Supreme Court of the United States in Magoun v. Illinois Trust & Savings Co., 170 U. S., 283.
    The tax imposed in this act is in its nature and effect rather an excise tax. In Portland Bank v. Apthorp, 12 Mass., 252, the court say, “The term ‘excise’ is of very general signification, meaning tribute, custom, tax, tollage, or assessment.” In that case it was held that the statute laying a tax on. the stock of a banking corporation was an excise on. the franchise or employment and as such was constitutional. Attorney General v. Bay State Mining Co., 99 Mass., 148; Southern Gum Co. et al. v. Laylin, 66 Ohio St., 578.
    It is necessary thus to mark out a clear line of distinction between a tax on property and an excise tax on the privilege of succeeding to or inheriting property, for our contention is, as we shall further urge, that the language used in section 2 of article 12 of' the constitution, to-wit, “and personal property, to an amount not exceeding in value two hundred dollars, for each individual, may, by general laws, be exempted from taxation,” is the restriction or limitation solely upon the power of the legislature to-grant exemptions in the operation of a property tax, and not a restriction or limitation upon the power to grant exemptions from the operation of an excise-tax.

    It is not necessary for the sake of this argument,, to contend with Bank v. Hines, 3 Ohio St., 1, that a. franchise is or is not property in order to justify excise taxation. It is sufficient for the consideration. •of this case that section 1, of article 2 of the constitution is the source of all power to tax, and that section '2, of article 12 is merely a limitation upon the power to tax property. In other words the authority to pass this particular act is found in the general grant •of legislative power, and that authority is not limited by the special restrictions in taxation of property. Its limitations are to be found in those other sections of the constitution, which we shall discuss later, and which are designed to protect the citizen ‘.by equal and uniform laws.
    If the specific provision of the constitution in section 2, of article 12, authorizing the exemption from taxation of personal property to the amount of two hundred dollars is to be considered as a limitation upon the power of the general assembly in the imposition of other forms of taxation, why did the people, through this constitutional expression, limit the exemption to personal property? If this specific exemption as to personal property is to be insisted upon in the enactment of all revenue laws then franchise taxes, occupation taxes, gross earnings taxes, and every other variety of measures designed to raise revenue by the imposition of burdens upon special privileges must include some kind of a two hundred dollar exemption clause or no exemption whatever. If the suggestion of the learned .judge writing the opinion in the Ferris case be justified by the constitution, it may not be improper to call attention to the fact that care was not taken to provide only two hundred dollar exemptions in the various excise and franchise tax laws now in .force in this state. And yet these laws have uniformly been upheld by this court. Express Co. v. State, 55 Ohio St., 69; State v. Jones, 51 Ohio St., 492; The Southern Gum Co. v. Laylin, 66 Ohio St., 578; Ratterman v. Telegraph Co., 127 U. S., 411.
    Our conclusion is that the provisions of the constitution limiting the power to tax property as such do not apply to the taxation of subjects other than property, and that in the taxation of such subjects the citizen and his rights are protected by section 2 of the bill of rights, which ordains that governments are instituted for the equal protection and benefit of all the people, and section 26 of article 2, which requires that all laws of a general nature shall have a uniform operation throughout the state. The act in controversy in this case does not offend against either of these provisions of the constitution, which we shall next discuss.
    III. This act does not violate section 2 of the bid of rights, or section 26 of article 2 of the constitution of Ohio.
    It was clearly pointed out in the Ferris case, supra, that an inheritance tax must conform to the requirement for equality in section 2 of the bid of rights, and some members of the court in that case seemed of the opinion that section 26 of article 2 also governed in the imposition of such a burden. We desire to show that the act under consideration in this ease does not violate either of these provisions of the constitution. At the outset it must be stated that the rule as to equality and uniformity with respect to inheritance taxes has always been held to be satisfied, although one law may be enacted governing collateral inheritances and another law governing direct inheritances. Further, it must be conceded that this rule of equality and uniformity is satisfied, although direct inheritors are taxed by one rate, collateral inheritors by another rate and strangers by still another. The sole requirement is, that the means and methods shall be applied impartially to all the constituents of a class, “so that the law shall operate equally and uniformly upon all persons in similar circumstances.” Kentucky R. R. Tax Cases, 115 U. S., 321; Hays v. Missouri, 120 U. S., 68.
    This whole question of inheritance tax was examined and passed upon in a full and able opinion rendered by the Supreme Court of the United States on April 25, 1898, three years after the decision of the Ferris case. Magoun v. Illinois Trust & Savings Bank, 170 U. S., 283.
    The opinion of the supreme court in the Magoun case has been adhered to and followed in the recent case of Billings v. Illinois, 188 U. S., 97.
    In another very recent case decided by the Supreme Court of the United States on May 14, 1900, to-wit: Knowlton v. Moore, 178 U. S., 41, there was considered the constitutionality of an act of congress imposing a war revenue tax upon legacies and distributive shares of personal property. The exemption was $10,000 and the rate was graduated. Yet the Supreme Court in a very full opinion by Mr. Justice White, reviewing all the authorities, upholds the act against every constitutional objection. Another recent case of the Supreme Court of the United States, upholding an inheritance tax is that of Plummer v. Coler, 178 U. S., 115, where a law on this subject enacted by the legislature of New York was sustained.
    It is, of course, unnecessary to argue to this court that the fourteenth amendment to the federal constitution covers the same rights and as fully protects the individual from their violation as does section 2 of article 1 of the constitution of Ohio.
    But it is contended in the case at bar that the exemption of $3,000 in the act now before this court renders the law unjust and inequitable. We submit that it treats all inheritances alike. Every individual who succeeds to property by the death of his grantor, pays the tax of two per cent, on the value of the property, and every individual so succeeding to property is allowed an exemption of $3,000.
    Our conclusions upon this branch of the case are, that the act here being considered, clearly does not offend against section 2 of the bill of rights. It treats all persons alike under like circumstances. It grants the same exemption to all who succeed to, or inherit property, whether rich or poor, and it imposes the same rate of taxation upon all.
    But it is said that section 26 of article 2 of the Ohio constitution is violated by this act. Such a contention is readily answered by pointing to the fact that this provision, in protecting personal or property rights, is not broader than section 2 of the bill of rights, and in no case in which the latter is not offended, can the former be violated. This requirement, that all laws of a general nature shall operate uniformly throughout the state has been generally, if not exclusively invoked against the enforcement of laws having a special territorial operation. The long line of decisions, and particularly the recent decisions of this court, construing section 26 of article 2 has almost without exception related to acts affecting the government or powers of municipal corporations or special statutes not operating in all parts of the state. But even if it be conceded, as it may well be, that this section of the constitution forbids tbe enactment of laws which do not operate uniformly upon persons or property throughout the state, there is still no foundation for the contention that the act in the case at bar does not satisfy this constitutional amendment. The mere fact that a $3,000 exemption is allowed, does not justify a contention that the act fails to operate uniformly throughout the state. It operates in every part of the state. It operates as to every legacy. It operates as to every legatee. Assuming that the constitution exemption of $200 in the levying of taxes upon personal property does not apply, as we have already shown, in the levying of taxes upon subjects other than property, the only question that remains is, whether or not any exemption is permitted by the rule requiring uniformity. No system of taxation in any state can exist without exemptions. In the tax laws of Ohio, from which revenues are raised by the imposition of burdens upon special privileges, there.are, either by express terms of the statute, or by tbe failure of the legislature, manifold instances of exemptions. The public service corporations- are exempted from the terms of the Willis law. The private corporations, in general, are exempted from the terms of the Cole law. Stationary engineers are taxed upon their licenses; locomotive engineers are not. A peddler is faxed, while a lawyer is exempted. 1 Cooley on Taxation, 262; Adler v. Whitbeck, 44 Ohio St., 573.
    Could it be argued successfully, that the arbitrary fixing of the figures thirty-five dollars, in determining the character of a crime, disables the act from operating uniformly throughout the state? Is it not as true, that there is in such a criminal law, a discrimination in favor of one who has stolen $34.99, as that there is in this case a discrimination in favor of one who inherits $3,000 or less? Senior v. Ratterman, 44 Ohio St., 678; State v. Nelson, 52 Ohio St., 88; State ex rel. v. Turnpike Co., 37 Ohio St., 481; State v. Gardner, 58 Ohio St., 611.
    IV. The overwhelming weight of authority in the state and federal courts sustains inheritance taxes with varying exemptions.
    The following states have direct inheritance tax laws which have been upheld:
    • Connecticut (by an act passed 1897); Illinois (by an act passed 1895); Michigan (1899); Minnesota (1897); Montana (1897); New York (1891); Wisconsin (1899).
    In New Hampshire in the case of Curry v. Spencer, 61 N. H., 624; in Missouri in the case of Missouri v. Switzler, 143 Mo., 287, and in State v. Gorman, 40 Minn., 232, such acts have been declared unconstitutional for various special reasons, chiefly because of progressive percentages levied-upon the larger estates. In Montana,'Pennsylvania, Virginia, Maryland, New York, Maine, Tennessee, California and Massachusetts, in the cases cited elsewhere in this brief, inheritance taxes have been upheld as-against the contention that they imposed unequal burdens by exemptions or graduated rates. To these must he added the decisions of the Supreme Court of the United States cited elsewhere.
    In the following states collateral inheritances tax laws are now in force, the date when first imposed being put in parentheses: California (1893), Connecticut (1889), Delaware (1869), Illinois (1887, only for Cook county; 1895, for the state), Iowa (1896), Maine (1893), Maryland (1845), Massachusetts (1891), Michigan (1899), Minnesota (1897), Missouri (1899), Montana (1897), New Jersey (1892), New York (1885), Ohio (1893), Pennsylvania (1826), Tennessee (1891), Vermont (1896), Virginia (1844 to 1884, again in 1896), West Virginia (1887), and Wisconsin (1899). The tax was declared unconstitutional in the following states in the years mentioned in brackets: Louisiana (1899), Michigan (1894), Minnesota (1875), Missouri (1898), New Hampshire (1878), and Wisconsin (1890); but in four of these six cases the constitutional objections were obviated by later laws which, as indicated above, now exist in Michigan, Minnesota, Missouri and Wisconsin. The tax at one time existed, but was abolished, in Alabama (1848 to 1868), Louisiana (1828 to 1877, again in 1894 for foreign heirs, but pronounced unconstitutional in 1899), North Carolina (1847 to 1884), Virginia (1848 to 1884, but re-enacted in 1896). Essays on Taxation by Prof. Seligman of Columbia University.
    Au examination of these acts and authorities will show that no state in the union has a fairer or juster law imposing a tax on direct inheritances than the one just passed by the general assembly of Ohio. The exemptions in- other states go as high as $20,000 and in many, if not most of them, the rate is graduated, whilé discriminations are made between kindred descended from the same ancestor.
    1We submit that the general power to levy taxes is derived from section 1 of article 2 of the Ohio constitution, and not from section 2 of article 12. This is clearly decided by an uninterrupted line of authorities in this state. Hill v. Higdon, 5 Ohio St., 243; Zanesville v. Richards, 5 Ohio St., 590; Cincinnati Gas L. & C. Co. v. The State, 18 Ohio St., 238; Anderson v. Brewster, 44 Ohio St., 576; Shotwell v.
      Moore, 45 Ohio St., 632; Southern Gum Company et al. v. Laylin, 66 Ohio St., 578; Baker v. Cincinnati, 11 Ohio St., 534; Exchange Bank v. Hines, 3 Ohio St., 1; Western Union Telegraph Co. v. Mayer, 28 Ohio St., 521; Gas L. & C. Co. v. State, 18 Ohio St., 238.
   Spear, O. J.

Section one of the act contains the provisions which are assailed as beyond the power of the general assembly to enact. It is there provided that: ‘ ‘ The right to succeed to or inherit property within the jurisdiction of this state, and any interest therein, whether belonging to inhabitants of this state or not, and whether tangible or intangible, including annuities, which shall pass by will or by the inheritance laws of this state, or by deed, grant, sale or gift made or intended to take effect in possession or enjoyment after the death of the grantor, to the use of the father, mother, husband, wife, brother, sister, niece, nephew, lineal descendant, adopted child, or person recognized as an adopted child and made a legal heir under the provisions of section 4182 of the Revised Statutes of Ohio, or the lineal descendant thereof, the lineal descendant of any adopted child, the wife or widow of a son, the husband of a daughter of a decedent, or to any one in trust for such person or persons, shall be taxed as follows, to-wit: Upon the value of the property exceeding three thousand dollars, succeeded to or inherited by any. person, two per centum on such excess; such tax to be borne by the person so succeeding to or inheriting the same in the manner herein provided. And all administrators, executors and trustees, shall be liable for all such taxes, with interest, as hereinafter provided, until the same shall have been fully paid. Such taxes shall become due and payable immediately upon the death of the decedent, and shall at once become a lien upon said property. ’ ’

In brief the objection to the act is:

That if there be power in the general assembly to-impose a tax on inheritances, or if this inquiry is foreclosed by previous decisions of the court, still the attempt to impose a tax upon the right to succeed to or inherit property to the extent of two per cent, upon the value of such property in excess of three thousand dollars so succeeded to or inherited by any one person, is the placing of an unequal burden upon those who inherit, or succeed in excess of three thousand dollars, and is therefore in violation of section two article twelve of the constitution,, which requires uniformity and equality in the imposition of the burdens of taxation.

We are relieved of any extended inquiry with respect to the question of the power of the general assembly to impose an inheritance tax. It was held in The State ex rel. v. Ferris, 53 Ohio St., 314, that a tax on inheritances is an excise tax; that is, it is a tax on the right to receive property as distinct from a tax on the property itself, and this right to tax is within the power of the general assembly, which body may regulate the privilege and lay such burdens thereon as it may see fit within the provisions of the constitution, and that such imposition is not in conflict with the first section of the bill of rights. The act in question in that case was held unconstitutional because it undertook to exempt from taxation the right to succeed to estates not exceeding-twenty thousand dollars in value while taxing the whole right of succeeding to estates which exceed that sum in value, and also because it sought to tax at a higher rate per centum the right to succeed to-estates of larger value than to estates of smaller value. The act in question in Hagerty v. The State, 55 Ohio St., 613, laid a tax upon collateral inheritances, making provision for exemptions in the amount, of two hundred dollars, and was assailed because it discriminated among collateral kindred, the tax being imposed upon the value of the property received by some and not upon that received by others. It was sustained on the ground that the-power exercised is legislative, being vested by the first section of the second article of the constitution, which provides that the legislative power of the-state shall be vested in the general assembly; that, the right to receive property by inheritance is not guaranteed by the constitution; neither does that, instrument prescribe any limitation upon the power of the general assembly to designate the persons who may thus receive, and the discrimination is based upon and justified by the fact that there are degrees in collateral kinship. The ground upon which the power .to levy such taxes rests is stated in Magoun v. Illinois Trust & Savings Bank, 170 U. S., 283, thus: “They (the cases cited) are based on two principles :• •1. An inheritance tax is not' one on property, but. one on the succession. 2. The right to take property by devise or descent is a creature of the law, and not a natural right — a privilege, and therefore the authority which confers it may impose conditions, upon it. Upon these principles it is deduced that the states may tax the privilege, discriminate between relatives, and between these and strangers, and grant exemptions; and are not precluded from this power by the provisions of the respective state.•constitutions requiring uniformity and equality in taxation.”

So that the only remaining question relates to the matter of exemptions. The specific complaint is that this act does not prescribe or preserve the rule ■of equality and uniformity of burden in taxation prescribed by the constitution in that it exempts from its operation all inheritances which do not exceed three thousand dollars in value and imposes the burden on such as are above that sum. We think there are two answers to this objection. The person who inherits six thousand dollars has three thousand exempt; the person who inherits three thousand dollars has three thousand dollars exempt. They are •on a perfect equality in that regard. The same reasoning applies where it happens that the smaller inheritance falls below three thousand dollars. As well might it he urged that the law which exempts from execution homesteads of the heads of families of one thousand dollars in value is invalid on the ground of inequality of privilege because one debtor’s homestead may not reach one thousand ■dollars in value while that of another may. It is to he borne in mind that the act does not create a •classification of persons for the purpose of imposing a tax on that class. It is not a tax on persons at all. If it is felt more by some than by others this is owing merely to the fact of the differing circumstances which surround the different persons. No person, nor no set of persons, is selected arbitrarily • or otherwise for the imposition of burdens or for relieving of burdens. But beyond this, when it is •determined, as it was determined in the Ferris case supra, that the tax is an excise tax, and as in the .Hagerty case supra, that the authority to impose the tax is conferred by the general grant of legislative power, then the selection of the subjects on which the tax will be imposed must be within the legislative competency. Those inheritances which do not exceed three thousand dollars in value are not embraced in the class included within the purview of the law, and unless it can be shown that such ^exclusion results in a violation of the rights of those who are included, or that such discrimination is forbidden by some provision of the constitution, the discrimination referred to is not unlawful. We think it cannot be so shown. To say that the mere fact of inclusion in the one case and exclusion in the other constitutes a reason for holding the law invalid is to say that no excise tax can be lawfully laid upon any privilege until all privileges on which it would be possible to lay such tax have been included within its terms. If this proposition were established it is difficult to see why it would not invalidate all the excise laws of the state, many of which have been subjected to judicial scrutiny and have been sustained.

It is insisted further that section two of article twelve of the constitution is a limitation upon the general power of taxation granted to the general assembly by section one of article two, and hence the amount exempted by any act must not exceed the sum therein named, viz.: two hundred dollars. This seems to have been the view of the learned judge who reported the Ferris ease. He was of the opinion that: “The constitution must be regarded as consistent with itself throughout, and as section two of article twelve permits an exemption from taxation of personal property not exceeding two hundred dollars, a construction of section two of the bill of rights is thereby evinced to the effect that in taxation of subjects other than property, an exemption up to two hundred dollars in value would be regarded as for the equal protection and benefit of the people.” This conclusion was, however, not assented to by a majority of the court at that time and is not assented to by the majority now. With due respect it is submitted that section two of article twelve treats wholly and only of taxation of property. Its very terms not only imply this but make it clear. We have gotten in our inquiry here away from the question of taxation of property and are treating only of an excise tax, which is not upon property. It is, we think, unreasonable to assume that the framers of the constitution would have omitted to place in that instrument a clear limitation upon the right'to impose an excise tax had they intended that such limitation should obtain. As held in Baker v. The City of Cincinnati, 11 Ohio St., 534: “An express direction to impose a tax on all property by uniform rule does not necessarily exclude taxation upon that which is not property, or cover the whole ground included within the limits of the taxing power. ’ ’ As distinctly pointed out by Grholson, J., in the above case, the provision of section one, article two “is not that the legislative power, as conferred in the constitution, shall be vested in the general assembly, but that the legislative power of this state shall be vested. That includes all legislative power which the object and purposes of the state government may require, and we must look to other provisions of the constitution to see how far, and to what extent, legislative discretion is qualified or restricted. Hence the difference between the constitution of the United States and a state constitution such as ours. In the former, we look to see if a power is expressly given; in the latter to see if it is denied or limited. The power of taxation is included in the legislative power. In our former constitution it was limited ■ in one particular, the prohibition of a poll-tax. In the present, it is regulated or limited in other particulars. Section two of article twelve is not a grant of power, but a regulation of a power already granted in the first section of the second article. The expression is, ‘laws shall be passed,’ not that the ‘general assembly shall have power to pass.’ So of every provision in the twelfth article, they either prohibit or regulate the exercise of the power of taxation in specific instances.” The conclusion above stated receives added force by recurrence to the preceding section of the present constitution by which the levying of a poll-tax is distinctly inhibited. Expressio unius est exclusio alterius. We are of opinion that an excise tax which operates uniformly throughout the state and applies equally to all the subjects embraced within its terms cannot be said to deprive any one of the equal protection of the law, or in any manner to violate the bill of rights, or any section of the constitution.

The proposition that section two of article twelve of the constitution furnishes the governing principle for all taxation for general revenue, so strenuously insisted upon by counsel for the relator, has support in the language of the opinions in several of the early cases giving construction to our present constitution, and it is further true that the language of some of the later cases appears to imply consent to the proposition, but a careful examination of the cases will show that in most instances the support is more apparent than real because of the fact that in each, case the subject of inquiry was the taxation of property. Of the former class are Hill v. Higdon, 5 Ohio St., 243, and Zanesville v. Richards, same volume 589; and of the latter is Wasson v. Commissioners, 49 Ohio St., 622. Had the words “upon property” been inserted in the proper connection, as perhaps abundant caution would have suggested, no confusion would have resulted from these cases.. But, giving proper effect to the rules to be observed in the study of cases, the report in each case should, be held to be restricted to the precise subject before the court, viz.: the taxation of property. So understood, no one of these cases is authority for the proposition. We do not overlook The State v. Hipp, 38 Ohio St., 199, where it is held by Okey, O. J.: “ Such tax cannot be imposed merely for general revenue,. for the only mode of raising such revenue, whether for state, county, township or municipal corporation purposes, is found in the twelfth article of the constitution.” If this declaration has application to a. tax like the one under consideration, and we presume it was so intended, then a sufficient answer is found in the first paragraph of the syllabus in the Ferris case, viz.: “Funds raised by taxation of franchises, rights and privileges, may be applied to purposes of general revenue, or any other purpose' authorized by statute,” and no further comment, is. needed.

On the whole case we reach the following conclusions :

1. The power to impose taxes is a legislative power, and is vested in the general assembly by section one of article two of the constitution.

2. Section two of article twelve is a limitation upon the taxing power so far as the same applies to taxation of property, both as to the method of taxation and the character and amount of property which may be lawfully exempted from taxation, and. furnishes the governing principle for all laws, authorizing taxes for general revenue upon property. But this section has no application to taxes, known as excise taxes.

3. The act of April 25, 1904, entitled “An act to-impose a tax upon the right to succeed to or inherit, property,” being a tax not upon property but upon, the right to inherit or succeed to property, the power to enact the same is not affected by the limitations, of section two of article twelve of the constitution. Such right is derived from and regulated by municipal law; it arises from the relation of the individual to the state, and is not an inherent or constitutional right. It follows that in assessing a. tax upon such right or privilege, the state may lawfully measure or fix the amount of the tax by referring to the value of the property, passing, and is. not precluded from this power by the provision of the constitution requiring uniformity and equality of taxation.

4. An excise tax which operates uniformly throughout the state, and bears equally upon all persons standing in the same category, does not deprive-any of the equal protection of the laws.

5. The act of April 25,1904, is not in conflict with the constitution or bill of rights because of- the exemption therein contained, and is a valid law.

It has been suggested that the court is without, authority to pass on the constitutional question because quo warranto is not the proper remedy under the facts stated in the petition. We think the observation lacks force. If it be true that relief could not. “be granted relator in ease the act should be held invalid because he had chosen the wrong form of action — and we do not pass upon that question — still ■that fact but affords another reason for sustaining the demurrer since the court has full original jurisdiction in quo warranto, and therefore jurisdiction to entertain and act upon the petition.

Authorities supporting our conclusion are abundant. We do not cumber the record with numerous ■citations because they are fully given in the able and exhaustive briefs of counsel, to which reference is here made.

Finding as we do that the act is constitutional the demurrer will be sustained and the petition dismissed.

Judgment accordingly.

Shatjok, Crew and Summers, JJ., concur.

Price, J.

(dissenting). I cannot concar in the .above judgment for the following reasons:

■ 1. The prosecuting attorney is without authority do make the relation he has assumed, and therefore has no authority in law to institute and maintain this action. Such authority cannot be found in any statute defining his duties, nor is he permitted, under chapter 3, title 4 (Quo Warranto), Revised Statutes, to bring proceedings in quo warranto on •account of any fact stated in the petition.

2. Quo warranto is not the proper and legal remedy to be applied to the facts alleged. The title to the office held by the respondent is not questioned. After pleading the act authorizing an inheritance tax, the only charge made against the auditor of state, is, that he is about to contract for books, blanks, etc., to be used in executing the enactment, which is alleged to be unconstitutional.

Being lawfully in office, if these, or other acts of the respondent, incident to the exercise of the powers of .such office are illegal, they may be enjoined in an action for that purpose and the validity or invalidity of the statute be therein determined.

If any authorities are here necessary, the following may be sufficient: High’s Extraordinary Remedies (3 ed.), sec. 618; The State v. Evans, 3 Ark., 585; Dart et al. v. Houston et al., 22 Ga., 507; The State ex rel. Spalding v. Smith, 55 Tex., 447; The People ex rel. v. Whitcomb et al., 55 Ill., 172; The State ex rel. v. The City of Lyons, 31 Ia., 432; McDonald v. The Board of Supervisors, 91 Mich., 459.

It is said in State of Ohio ex rel. v. The Board of Education, 3 Circ. Dec., 703; 7 C. C. R., 152, that, “the remedy by quo warranto is only employed to test the actual right to an office or franchise, and it cannot afford relief for official misconduct, and cannot be employed to test the legality or the official action of public or corporate officers. So when a public officer threatens to exercise powers not conferred upon him by law, or to exercise the functions of his office beyond its territorial limits, the proper remedy would seem to be by injunction.”

I quote from the above authority because it is warmly approved in State ex rel. Attorney General v. The City of Newark et al., 57 Ohio St., 430. The latter case is a clear and direct authority for our position.

For these reasons the petition should be dismissed without passing on the validity of the statute.

3. However, a majority of the court have entertained the petition and hold the statute to he constitutional. This view does not meet the approval of my judgment.

If we may assume the correctness of the proposition, that the act under consideration does not impose a tax on property, as that word is contemplated in section 2 of article 12 of our constitution, but a tax on the right to succeed to or receive property, still we cannot escape the just rule of uniformity laid down in that provision. It is by the very refinement of reasoning that many courts have reached the conclusion that a statute like the one before us, does not tax property either real or personal, but merely the right to inherit, or receive by devise or bequest, such property. We now make no controversy with conclusions so reached by the several courts taking that view, although other courts hold the opposite doctrine; and yet the truth remains, that the right to receive or succeed to property in either or all the modes specified in the statute, is a property right, or a right in property. It is a species of property and property rights fully recognized by the policy of our laws, and it requires a struggle to suppress the first impulse to say that such right of succession is in fact property. It is at least the spirit of property and so much akin to it, that it is entitled to the protection of the same rule of uniformity in taxation as property itself; otherwise the legislature, on this subject, is beyond constitutional limitations.

The act in question violates the rule of uniformity found in both the letter and spirit of this constitutional provision, because it exempts from taxation property not exceeding three thousand dollars in amount or value, in favor of each claimant of the same, and places the entire burden on succession to property of greater values. The extent of the exemption exceeds the constitutional limit.

Much of the sound reasoning in The State ex rel. v. Ferris, 53 Ohio St., 314, is still authority on this subject.

Davis, J.

(dissenting). I concur in all that is contained in the dissenting opinion of Price, J.; but I wish to add that while there can be no reasonable doubt that there is a clear distinction between a tax on the right to inherit and a tax on the property inherited, yet, to my mind, it is fallacious to argue that a tax on the right to inherit which is measured by the value of the property inherited, as in this case, is not identical with a tax on the property, and it seems to me that no dog ever ran around after his own tail in a more complete circle than is made by this process of reasoning.

The same sort of fallacy is involved in the argument that this statute does not mate any exemption because it taxes every inheritance and deducts three thousand dollars from the amount inherited in every case, and therefore that an inheritance of three thousand dollars or less is not exempt from the tax for the reason that it is liable to the tax but is saved therefrom by an equivalent deduction. ,We need not deceive ourselves by phrases, and we cannot so mislead others. The effect of this statute is to exempt all inheritances amounting to three thousand dollars or less, and clearly that was the intention of the legislature. In State ex rel. v. Ferris, 53 Ohio St., 314, 326, construing a statute which literally taxed the property inherited, this court held “that where the operation and effect of the statute are considered, it may be regarded as taxing the right or privilege rather than the property.” If the court was right in that case in following the operation and effect of the statute rather than its language, then the same rule would conclusively establish that this statute exempts all inheritances of three thousand dollars or less, because that is its effect. It remains to be seen in the future whether it does not exempt from taxation as much in value as will be taxed. If that proves to be the case the inequality will be apparent to everybody. It is plain to be seen, however, that it produces a gross inequality in taxation. The exemption of persons in a class taxed produces inequality, and while complete equality in taxation is impracticable, such wholesale discrimination as is made in this statute is, whether it be a tax on property or not, in violation of article 1, section 2 of the constitution, of Ohio. State ex rel. v. Ferris, supra.

For these reasons I think that so -far as the controversy between the parties is concerned the demurrer to the petition should be overruled; but for the reason that the case is not properly before the court,, as stated by Price, J., the petition should be dismissed. ■