Dissenting.
I am unable to concur in the conclusions reached by the majority of the court. I do not think it was the intention of the legislature in the enactment of chap. 5, title 10, of the Revised Codes, entitled “Transfer Tax on Successions, Legacies and Devises,” as found in secs. 1875 to 1897, inclusive, to permit any property within the state of Idaho, subject to such transfer or succession tax to escape the payment thereof, and it was not intended that any property subject to such tax should escape the payment thereof simply by protecting the title to such property behind any number of screens in the way of shareholding corporations, as might be devised by astute persons, attorneys or corporations seeking to evade the payment of such tax.
The Oregon Short Line Railroad has about 500 miles of railway in this state and its value is estimated to be worth from seventy-five millions to one hundred millions of dollars. Mrs. Harriman received an interest in that property by a transfer of the capital stock of the Union Pacific Railway Company, which was simply a holding corporation for the stock of the Oregon Short Line Railroad Company, and she ought not to be permitted to escape the inheritance tax any more than should a corporation which owned a large amount of real estate in this state and organized a corporation out*806side of the state to hold all of the stock of the corporation owning the property in this state. Where corporations keep their property in such shape that the interest of a deceased person in such property may be transferred to his heirs by will, devise or otherwise, or by simply an assignment of the capital stock of the holding corporation, it ought not by a technical or other construction of our statute be permitted to escape such tax.
This proceeding was brought under sec. 1890 of said transfer tax law, which provides, among other things, as follows:
“If it shall appear to the probate court, or judge thereof, that any tax accruing under this chapter has not been paid according to law, it shall issue a citation, citing the persons known to own any interest in or part of the property liable to the tax, or any person or corporation liable under the law for the payment of said tax, to appear before the court on a day certain, not more than ten weeks after the date of such citation, and show cause why said tax should not be paid.”
' Under the provisions of said section, the determination of an inheritance tax may arise either in a matter of probate or in the settlement of the estate of a deceased person, and I think in either of those cases the constitutional authority of the legislature to confer jurisdiction on the probate court is beyond question.
When a person dies his estate cannot be said to be “settled” until all debts and other obligations owing to the state have been paid. So far as the state of Idaho is concerned, the settlement of the Harriman estate cannot be regarded as complete until it has been made to pay any transfer tax which may be due this state under the provisions of said law.
•The authority of the legislature in regard to the rights of the state in questions of this character is very well stated in the case of Greves v. Shaw, 178 Mass. 205, 53 N. E. 372, where it is said:
“It cannot be supposed that the legislature intended that the question whether the succession to property of nonresidents should be taxed or not should depend in each ease upon the ability or inability of the foreign executor to obtain pos*807session of it in this commonwealth without a suit. It must be held that the provisions of the law imposing the tax are to be carried out, and that the right and title of the foreign executor or administrator are subject to the prior right of the commonwealth to have property so administered by officers of its courts as to produce the. tax for which it is liable..... Since the enactment of St. 1891, c. 425, persons claiming a succession to property in this commonwealth under nonresident owners must hold their right subject to the prior right of the commonwealth to have the property administered here, in order that taxes must be paid upon the saccession.”
If a tax is owing to this state from the Harriman estate, it was the duty of his administratrix or executrix to comply with the laws of this state in the payment of any transfer tax due, even if it required her to offer the Harriman will for probate in this jurisdiction and to pay said tax before proceeding to settle said estate. Because she failed to do this, it can in no wise affect the right of the state to demand the payment of the tax. Certain sections of said law provide the duty of the probate court under the different circumstances which may arise with reference to probate proceedings or the settlement of estates. Sec. 1886, Rev. Codes, provides, among other things, as follows:
“When the value of any inheritance, devise, bequest or other interest subject to the payment of said tax is uncertain, the probate court in which the probate proceedings are pending, on the application of any interested party, or upon its own motion, shall appoint some competent person as appraiser,” etc.
This paragraph undoubtedly refers to cases arising within the state of Idaho where the probate of wills is a necessity incident to the administration of estates, or to such cases where the administration of an estate occurs in some other state, but the will is offered for probate in this state in order to free the estate in question from such obligations as may arise under our statutes. In cases where the will of a resident decedent is not probated and the transfer tax is not paid, or where such a tax arises on the transfer of properly of a *808nonresident decedent, the probate court is given authority under said see. 1890 to issue a citation, citing the persons known to own any interest in or part of the property liable to the tax, or any person or corporation liable under the law for the payment of said tax, to appear before the court on a certain day, not more than ten weeks after the date of such citation, and show cause why said tax should not be paid. It was under the provisions of this section that this proceeding was begun, and it was made to appear by the complaint or petition filed in this proceeding that the interest of the Harriman estate in the Oregon Short Line Railroad located within this state was subject to such tax. “When that was made to appear to the probate court, it was its duty to appoint an appraiser to ascertain the value of the Harriman interests in such property.
We hear considerable about the strict construction of such statutes. Some appear to overlook sec. 4 of the Rev. Codes, which provides that the laws of this state “respecting the subjects to which they relate, and their provisions and all proceedings under them are to be liberally construed, with a view to effect their objects and to promote justice.” So our statutes in regard to the transfer or succession tax should be so construed as to make all property within the state liable therefor subject to the payment of such tax.
It was not intended that the payment of said transfer tax should be limited to proceedings of a probate court for the purpose of proving a will or the settlement of an estate and thus permit a great deal of property within the state subject to such transfer tax to escape the payment thereof by subterfuge or conditions such as are shown in this ease. Said sec. 1890 provides that “If it shall appear to the probate court, or judge thereof, that any tax accruing under this chapter has not been paid according to law, it shall issue a citation,” and in order to determine whether such tax should be paid the probate court has the authority under sec. 1886 to appoint an appraiser to ascertain the value of such property. This is for the purpose of determining whether or not such tax should be paid; and if it should, to determine the amount. *809If specific authority is not contained in said sec. 1890 for the appointment of an appraiser, such specific authority is not necessary, for the reason that sec. 3925, Rev. Codes, provides that “When jurisdiction is, by this code or by any other statute, conferred on a court or judicial officer all the means necessary to carry it into effect are also given; and in the exercise of the jurisdiction if the course of proceedings be not specially pointed out by this code, or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this code. ’ ’
The majority of the court hold that it was not the intention of the legislature to attempt to provide for the appointment of an appraiser under the circumstances disclosed by this application, but it authorizes such appointment by the probate court only in eases where the proceedings to probate an estate are pending. This narrow construction placed upon said statute would permit all property held behind the screen of other corporations to escape such transfer tax.
In the fourth paragraph of the syllabus of the decision of the majority, it is said: “Since no proceeding is pending to probate the estate of the late E. H. Harriman, and since he does not appear to have left an estate in Idaho subject to settlement under our laws,” etc., that this case does not come within the prescribed limits of the jurisdiction of the probate court as defined by sec. 21, art. 5, of the state constitution.
To my mind, it clearly appears in this proceeding, from the facts alleged in the petition, that the Harriman estate has a large interest in the Oregon Short Line Railroad situated in this state, and simply because Mrs. Harriman declined and refused to have the will of her late husband probated in this state, her interest in the Oregon Short Line, transferred to her on the death of her husband, is thus permitted to escape the inheritance tax. I do not think that the inheritance tax law of this state was intended to compel the payment of such a tax only on the estates that are probated under the laws of this state and to permit all other transfers of the estates of deceased persons to escape the payment of such tax. Such a construction would make said act special or class legislation, *810and would apply only to residents of the state and estates probated in this state.
It is clear to me that E. H. Harriman, prior to his death, was the actual owner of an equitable interest in the property of the Oregon Short Line Railroad Company. The shareholder of stock in a corporation is certainly an owner of the interest in the property standing in the name of the corporation. This was held in the case of People of New York ex rel. Hatch v. Reardon, 204 U. S. 152, 162, 27 Sup. Ct. 188, 51 L. ed. 415, 423, 9 Ann. Cas. 736, where the court said:
“It is said that the property sold was not within the state. The immediate object of sale was the certificate of stock present in New York. That document was more than evidence, it was a constituent of title. No doubt, in a more remote sense, the object was the membership or share which the certificate conferred or made attainable. More remotely still, it was an interest in the property of the corporation, which might be in other states than either the corporation or the certificate of stock.”
Practically the same is held in Mann v. Carter, 74 N. H., at p. 348, 68 Atl. 130, 15 L. R. A., N. S., 150. The question before that court was whether or not a deposit of money represented by a certificate of deposit could be held to be “ property within the state.” Among other things the court said:
“But her proprietary right to the property would not disappear if the partners became incorporated and carried on the business under a corporate name. The technical change in the form of ownership and management would not diminish her substantial rights as a beneficial owner of the property.”
It may be admitted that there is considerable weight of authority on the side of the majority opinion, to the effect that the stock in a foreign corporation is itself the property which passes by will or succession to an heir or legatee, and not the physical property of the corporation where it is actually located. But very slight investigation will disclose potent and significant reasons for the prevalence of this doctrine in certain states from which such authorities are cited. In the states of New York and New Jersey, for instance, enormous *811aggregations of capital are held in the form of stock certificates in railroad and industrial corporations, the physical property of which is scattered all over the United States.
By upholding inheritance taxes on the stock as distinct from the tangible property of the corporation, these states are enabled in effect to levy tribute by virtue of their taxing powers on property located in the states of Idaho, Kansas or North Dakota, as the case may be, and thereby secure a great and wholly inequitable fiscal advantage over the taxing powers of the states in which the property is actually situated; since it will hardly be contended that the stock would be worth more than the paper on which it is written without the existence of the physical property and franchise which is back of it.
The deplorable results of the development of this doctrine are manifest in constant clashes between the inheritance laws of different states, and the logical outcome of the doctrine leads to the absurd and inequitable position which is approved by my associates, to the effect that the same corporate stock or other personal property may actually be twice mulcted in inheritance taxes by different states and such double taxation be held valid and constitutional. If the imposition of such a tax were limited to the actual physical property of which stock is only the evidence, the tax could be collected only once, and it could be collected only in the state where it is situated and which affords such property the protection of. its laws. This -duplication of tax burdens upon the devolution of the same property has become so serious by reason of conflicting state inheritance laws, and the abuse has grown to such proportions, that the attention of economists and authorities on taxation has everywhere been attracted to it, and many suggestions have been made for the substitution of a more equitable system, which it should certainly be the endeavor of a court of justice to encourage so far as consistent with sound legal principles.
We cannot reasonably suppose that the legislature intended that the question whether the transfer or succession of property of nonresidents should be taxed or not should depend in *812each ease upon the ability or inability of the foreign executor to obtain possession of it in this commonwealth without a suit or proceeding in the probate court.
I think this court ought to hold that the provisions of the law imposing the tax should be carried out and that the right or title of the foreign heir, executor or administrator is subject to the prior right of this state, and that nonresident heirs of the owners of property in this state hold their right to such property subject to the payment of such tax to this state.
The writ ought to issue directing the probate court to appoint an appraiser.