It is not to be questioned that the power to tax is vested in the legislature; that it is unrestricted, except when it is opposed to some provision of the federal or state constitution; and that it extends "to every trade or occupation, to every object of industry, use, or enjoyment, and to every species of possession." Nor is it to be questioned that the subject of the taxation in the present case is one within legislative control, because inheritances, distributive shares, and legacies are but creatures of the law; in fact, the only right to take or dispose of property by descent or devise is derived from the sovereign power of the state through its laws. "Wills, therefore, and testaments, rights of inheritance and successions, are all of them creatures of the civil or municipal laws, and accordingly are in all respects regulated by them." 2 Blk. Com. 12.
It must be conceded, then, that in the absence of constitutional prohibition, the legislature has the power to impose conditions by way of a tax upon legacies and successions; and so the only inquiry is, whether the taxation in question is excluded either by the express terms of the constitution, or by necessary implication, because if it is not, the power of the legislature must be regarded as having been properly exercised.
An answer to the inquiry is readily afforded; for while by Art. 5 of our constitution the legislature is empowered to assess and levy taxes, this grant of power is expressly limited to "proportional and reasonable assessment, rates, and taxes upon all the inhabitants and residents within the said state, and upon the estates within the same," and by the Bill of Rights (Art. 12) every inhabitant is bound to contribute only his share, which manifestly, and according to the uniform decisions of this court for more than half a century, cannot be more than his proportional share of the common burden. *Page 631
All measures for the imposition or collection of taxes must therefore conform to this general principle of just equality; and hence it is immaterial whether the tax imposed by c. 64 is to be regarded as a tax on property or upon a civil right or privilege, for the same principle of equality and due proportion applies to every species of tax alike. And it is this consideration which broadly distinguishes the case at bar from those in Virginia and Maryland, to which our attention has been called, and in which a similar tax was sustained.
In the former state the constitution requires that taxes on property shall be uniform, and in Eyre v. Jacob, 14 Grat. 442, the objection taken was, that the property of the estate having been taxed, a tax on collateral inheritances must be opposed to the constitutional requirement; but the decision (by a divided court) is put expressly upon the ground that such a tax is not one on property, but on the privilege of succeeding to the inheritance, and that there is in that state no constitutional prohibition against taxing a civil right or privilege, or forbidding discrimination between lineal and collateral inheritances, because the requirement of uniformity applies to property only. A similar objection was taken and overruled in Tyson v. State, 28 Md. 577, on the ground that the restrictions imposed upon the legislative power as to taxation are explicitly declared in the state constitution, which only prohibits the taxation of polls and paupers, and requires a uniform mode of taxation on property according to its value; and that "whilst thus providing for a uniform mode of taxation on property, it was not the purpose of the framers of the constitution to prohibit any other species of taxation, but to leave the legislature the power to impose such other taxes as the necessities of the government might require."
It is apparent that these decisions can have no weight in New Hampshire; and immunity from disproportional taxation being expressly reserved in our bill of rights, and the power of proportional taxation only being granted the legislature by the constitution, we are unaware of any ground upon which the statute under consideration can be upheld; for if it is to be regarded as a tax on property, it is open to the objection of unequal and double taxation, and if it is to be regarded as a tax on a civil right or privilege, it is discriminating and disproportional. See State v. U.S. Can. Express Co., 60 N.H. 219.
Nor is the argument that its object was "to defray the cost of probate courts" entitled to any weight, because the constitutional rule of equality cannot be limited or qualified by any consideration of expediency or convenience. The purpose of the act cannot change its character in this respect. Good purposes in taxation are of no consequence if the effect is to subject the tax-payer to exceptional and invidious exactions.
But within the limits of legislative authority, we have nothing to do with the motives or policy of this or any other taxation, and, *Page 632 therefore, whether the expense of administering the probate law should be imposed upon the business of that office is not for us to determine. "It is only where statutes are passed which impose taxes on false and unjust principles, or operate to produce gross inequality, so that they cannot be deemed in any just sense proportional in their effect on those who are to bear the public charges, that courts can interpose and arrest the course of legislation by declaring such enactments void." Bigelow, C. J., in Commonwealth v. Savings Bank, 5 Allen 437. We therefore go no further than to say, that if the legislature deems it expedient to defray the expense of probate courts by a tax upon the recipients of estates therein adjudicated, such tax must be proportional and constitute only the just share of those upon whom it is imposed; that it cannot lawfully make discriminations and cast the burden upon one class of beneficiaries, and exempt all other classes from its operation; and that it cannot, therefore, for purposes of taxation, exempt legacies and successions to husband, wife, children, and grandchildren, and include only those by the collaterals and others than those specified.
It is true that this form of tax comes down from antiquity (Gibbon's Decline and Fall of the Roman Empire, c. 6), and that the tax commissioners of this state, by whom it was recommended, say that there can be no question of the legal right to impose it (Report, p. 31); but, nevertheless, we entertain a contrary opinion, because, under the reservations of the bill of rights and the limitations of the constitution, it is plainly founded upon pure inequality, and is simply extortion in the name of taxation; and it can therefore never be sustained in this jurisdiction so long as equality and justice continue to be the basis of constitutional taxation.
Chapter 64 must be declared void and inoperative, and the plaintiff is
Advised accordingly.
SMITH, J., did not sit: the others concurred.