delivered the opinion of the court:
The right of appellant to maintain this bill has not been challenged by the appellees, and it will therefore be assumed, without argument, for the purpose' of this appeal, that the allegations of the bill are sufficient to show that a property right of the appellant was involved in the court below and ,that the bill could be maintained to avoid a multiplicity of suits. Craft v. Indiana, Decatur and Western Railway Co. 166 Ill. 580; Cragg v. Levinson, 238 id. 69; Pelton v. National Bank, 101 U. S. 143; Cummings v. National Bank, id. 153; Hills v. Exchange Bank, 105 id. 319; Union Pacific Railway Co. v. Ryan, 113 id. 526.
The counsel for the appellant and the counsel for the State differ widely and fundamentally upon the relation which the appellant sustains towards its lessees, and the property which its lesse’es place in the safety deposit boxes and safes which they rent from the appellant, and as to the interest of the State in the property situated in a safety deposit box or safe, placed there by a lessee, upon the death of the lessee, when the property is subject to the payment of an inheritance tax. We think, for the proper decision of this case, the exact relation which the appellant sustains to a person to whom it rents a safety deposit box or safe, and the property placed in such box or safe by the lessee, and the interest which the State has in the property of a lessee remaining in such safety deposit box or safe upon his death, if such property is subject to an inheritance tax, must necessarify be determined as a preliminary question, as, according to our view, the correct determination of those questions will simplify many of the questions discussed in the briefs and eliminate others, and place the case in such a situation that a rational solution of the question here involved, whose determination is vital to a correct decision of this case, may readily be determined.
We think it clear that where a safe-ty deposit company leases a safety deposit box or safe, and the lessee takes possession of the box or safe and places therein his securities or other valuables, the relation of bailee and bailor is created between the parties to the transaction as to such securities or other valuables, arid that the fact that the safety deposit company does not know, and that it is not expected it shall know, the character or description of the property which is deposited in such safety deposit box or safe does not change that relation, any more than the relation of a bailee who should receive for safe keeping a trunk from a bailor would be changed by reason of the fact that the trunk was locked and the key retained by the bailor, although the obligation resting upon the bailee with reference to the care he should bestow upon the property in the trunk might depend upon his knowledge of the contents of the trunk. Obviously, the bailee would be in possession of the trunk and its contents, and no amount of argument would demonstrate that while the trunk was in possession of the bailee its contents were in the possession of the bailor, solely by reason of the fact that the bailor of the trunk retained the key and the bailee did not have access to the trunk. We are of the opinion that the relation of bailee and bailor exists between the appellant and its lessees, and that the deposit of the securities and valuables by its lessees in rented safety deposit boxes or safes is a bailment, and that .the law applicable to bailments, generally, applies to such transaction and to such property.
In Mayer v. Brensinger, 180 Ill. no, the appellee rented from the appellant a safety deposit box in his safety deposit vault, in which he deposited cash. During the illness of the appellee the cash was removed from the box, and suit was brought and a recovery was had. In that case, as in this, the appellee retained the key to the box. The court, on page 113, said: “The relation which the appellant bore to the appellee was that of a bailee or depositary for hire. As-such, bailee or depositary for hire the appellant was bound to exercise ordinary care and diligence in the preservation of the property entrusted to him by the appellee. Ordinary ’care in such cases is such care as every prudent man takes of his own goods, and ordinary diligence in the preservation of such goods is such diligence as men of common prudence usually exercise about their own affairs. (Chicago and Alton Railroad Co. v. Scott, 42 Ill. 132.) Although one who hires a box in the Vaults of a safety deposit company may keep the key himself, yetz the company, without any special contract to that effect, will be held to at least ordinary care in keeping the deposit.”
In the case of Lockwood v. Manhattan Storage and Warehouse Co. 50 N. Y. Supp. 974, it appeared that the defendant, among other things, maintained at its warehouse safe deposit vaults, containing separate safe deposit boxes or safes. Plaintiff had, for a consideration paid, rented a safe deposit box of defendant. One key to the box was held by the plaintiff and one by the defendant. Access to the box could be gained only by the use of said two keys. The plaintiff deposited in her box certain sums of money, which, when she returned some days later, she found had disappeared, Suit was brought to recover the value of the property abstracted. That defendant was not in the possession of plaintiff’s property was urged upon the court. In disposing of the case the court said: “It is urged upon the part of the defendant that it was not the bailee because it was not in possession of the plaintiff’s property. If it was not, it is difficult to know who was. Certainly the plaintiff was not, because she could not obtain access to the property without the consent and active participation of the defendant. She could not go into her safe unless the defendant used its key first and then allowed her to open the box with her own key, thus absolutely controlling the access of the plaintiff to that which she had deposited within the safe. The vault was the defendant’s and was in its custody, and its contents were under the same conditions. As well might it be said that a warehouseman was not in possession of silks in boxes deposited with him as warehouseman because the boxes were nailed up and he had no access to them.” See, also, Cussen v. South California Savings Bank, 133 Cal. 534; Roberts v. Safe Deposit Co. 123 N. Y. 57; Safe Deposit Co. v. Pollock, 85 Pa. St. 391.
We think the above authorities clearly sustain the position that the appellant, in law, is in possession of the property of its lessees deposited in the safety deposit boxes or safes which it rents to them, and while it may not have knowledge of the character, amount or quantity of the property which its lessees have deposited in the safety deposit boxes or safes leased from it, nevertheless it is in the legal custody and control of such property. True, while a lessee is living, by the terms of the lease with the appellant he has access to the box or safe, and upon his death the duty devolves upon the appellant to hold the contents of his box or safe and to deliver them to those persons, only, to whom they belong or to whom the law directs they shall be delivered, and such delivery must be made at the appellant’s peril. We conclude, therefore, upon the death of a lessee of a safety deposit box or safe the contents of such box or safe are in the possession and control of the appellant, and the same duty rests upon it as rests upon every other bailep who finds himself in the possession of property that belongs to a bailor who has died during the existence of the bailment,—that is, to deliver the bailment to the party or parties upon whom the law casts the title, with the right of possession. The law is also well settled that the right to take property, either real or personal, by inheritance or by bequest or devise is purely a statutory right and one which rests wholly within legislative enactment, and the State, acting in its sovereign capacity, by appropriate legislation may regulate and contrdl the devolution of property after the death of the owner. (Evans v. Price, 118 Ill. 593; Wunderle v. Wunderle, 144 id. 40; Kochersperger v. Drake, 167 id. 122; Billings v. People, 189 id. 472; In re Estate of Speed, 216 id. 23; In re Petition of Mulford, 217 id. 242; In re Estate of Graves, 242 id. 212.) In the Kochersperger case, on page 125, the court said: “The laws of descent and the right to devise and take under a will within the State of Illinois owe their existence to the statute law of the State. The right to inherit and the right to devise being dependent on legislative acts, there is nothing in the constitution of this State which prohibits a change of the law with reference to those subjects at the discretion of the law-making power. The laws of descent and devise being the creation of the statute law, the power which creates may regulate and may impose conditions or burdens on a right of succession to the ownership of property to which there has ceased to be an owner because of death, and the ownership of which the State then provides for by the law of descent or devise.” And in the Graves case, on page 216, it was said: “The descent of property in this State, whether by inheritance or devise, is regulated entirely by statutory provisions.”
It has been decided by this court that an inheritance tax is a tax upon the right of succession and is not a tax upon the property itself. (Kochersperger v. Drake, supra; Estate of Merrifield v. People, 212 Ill. 400.) It is obvious that the money received by the State in the form of inheritance taxes constitutes a part of the public revenue of the State, and by numerous adjudicated cases it has been determined that the right of the State to such taxes is a vested right, and that such right vests, in point of time, at. the time the estate vests, that is, upon the death of the decedent. (In re Estate of Graves, supra.) The State, therefore, has a vested financial right in the estate of every decedent in this State which is subject to the payment of an inheritance tax, and that right is equal in degree to that of the personal representative, the heir or devisee of the decedent, and it vests at the same moment of time that the interest of the personal representative, heir or devisee vests. In the Graves case, on page 216, this court said: “All the property owned by any person at his decease passes either under the Statute of Descent, to the persons mentioned in that statute, or under the Statute of Wills, to his devisees. In either event it passes subject to the indebtedness of the decedent and the expenses of administration, and to no other charges. The Inheritance Tax law provides that all property so descending, whether under the Statute of Wills or the Statute of Descent, shall be subject to a tax, at certain specified rates, at the fair market value thereof, which shall be due at the death of the decedent. The tax is not upon the estate of the decedent but upon the right of succession, and it accrues at the same time the estate vests,— that is, upon the death of the decedent. Questions may arise as to the persons in whom the title vests, and such questions may affect the amount of the tax and the person whose estate shall be chargeable with it; but when those questions are finally determined their determination relates to the time of the decedent’s death. No changes of title, transfers or agreements of those who succeed to the estate, among themselves or with strangers, can affect the tax. All questions concerning it must be determined as of the date of the decedent’s death.”
In Matter of the Estate of Stanford, 126 Cal. 112, the court had under consideration a statute of the State of California which, in part and in effect, surrendered to the beneficiary all the tax which had accrued in certain cases under a prior law. The constitution of California prohibited the legislature from releasing or extinguishing, in whole or in part, the indebtedness, liability or obligations of any corporation or person to the State. As to estates which had become subject to the tax under the prior law but in which the tax had not been paid, the court held that the amendatory act under consideration was invalid, as infringing the constitutional provision above referred to. The court placed its holding upon the ground that the State, upon the death of the decedent, acquired a vested interest in the tax due the State. Upon that point the court said: “This being so, and the legislature in this case having determined that ninety-five per cent of the' decedent’s estate may go to his heirs and beneficiaries and that five per cent be retained to the State, it is too clear for argument that this five per cent vested in the State at the same time that the ninety-five per cent vested in the heirs or other beneficiaries. ‘An estate is vested when there is an immediate right of present enjoyment or a present fixed right of future enjoyment.’ (Kent’s Com. 202.) The State here, from the death of the decedent, has a present fixed right of future enjoyment to the five per cent of his estate. This is property or a thing of value belonging to the State.”
It is clear, therefore, that the State has an interest in every estate that is subject to the payment of an inheritance tax, and in all such proceedings the Attorney General, or some other designated officer, is the representative of the State. (People v. Sholem, 238 Ill. 203.) We think, therefore, that the conclusion, from what has been said, logically and necessarily follows that where a lessee of the appellant dies leaving property in one of the safety deposit boxes or safes of the appellant, the State, by its proper representative, has the right to be advised whether or not it shall ultimately be established that it has an interest in such property and of the time when the property will be surrendered and delivered by the appellant to the personal representative, heir or devisee of the decedent, for the purpose of becoming informed as to whether the succession to such property is subject to an inheritance tax. If such were not held to be the law, all moneys, securities or other valuables held by appellant in its safety deposit boxes or safes for its lessees, upon the death of a lessee might be transferred to parties other than the State or its representatives and immediately removed -to a foreign State or country or concealed or otherwise disposed of, and the true owner of the property, in part,—that is, the State,—be deprived of all right to enjoy the use and possession of such property. It therefore legitimately follows, we think, that the provisions of section 9 which require the representative of the State to have notice of the time when property held by safety deposit companies, the former owners of which are deceased, is to be surrendered and removed from the custody of the safety deposit company and delivered to the personal representative, heir or devisee of the decedent, are not an unreasonable measure to protect the State from loss of property in which it has a "vested right. Neither do we think, as will hereafter be shown, that the appellant or the personal representative, the heir or the legatee of the decedent is deprived of any constitutional right by requiring that the representative of the State be given notice of such surrender and delivery. Nor can we see that the appellant will be deprived of any of its constitutional rights by making it liable for the amount of the inheritance tax in case it violates the clear mandate of the law and parts with the possession of such property without giving notice to the State of such removal and delivery, or in being penalized for so doing. It is obvious, should doubts arise as to whether an inheritance tax is due on the succession of property held by a safety deposit company whose former owner is dead, or as to the amount of such tax, the courts will always be open, upon the application of the safety deposit company, the State or those interested, to adjudicate upon such questions as may arise and solve the doubt, so that the appellant’s expressed fear that it might be wrongfully required to pay an inheritance tax upon property which it had supposedly properly surrendered and delivered, or be penalized for the infraction of the statute and mulcted in costs, is, we think, a groundless fear.
From what has been decided, 'it follows that it is our view that section 9 of the act of 1909 is a valid enactment so far as it covers property held by a safety deposit company and which had been deposited in a safety deposit box or safe, in a case where" the sole lessee of such safety deposit box or safe had died leaving his property in a safety deposit box or safe and in the custody of and under the control of the appellant, it being our view that in consideration of such enactment the appellant has no more right, under the constitution, either State or national, to ignore the property rights of the State and to surrender and deliver property thus situated by turning it over to the personal representative, heir or devisee of the decedent, than it would have to deliver the same to the" State to the entire exclusion of the rights of the personal representative, heir or devisee of the deceased. All the parties in interest for whom the appellant, as a safety deposit company, holds property thus situated, are under the law entitled to be informed of the condition and amount of such property so found in safety deposit boxes or safes, before the appellant parts with the possession thereof. This would be "the law which would govern any other bailee under like circumstances if the statute had not been enacted, and we think no valid reason is or can be assigned why such should not be held to be the law in view of said statute governing safety deposit companies.
It is contended by the appellant that even though the constitutionality of section 9 of the act of 1909 should be sustained when applied to property found in a safety deposit box or safe where the sole lessee of such receptacle is dead, it is clearly unconstitutional when applied to property found in a safety deposit box or safe where there are joint lessees and one of the lessees is dead, even though the lessees were not jointly interested in the contents of such safety deposit box or safe and the property was not commingled in the safety deposit box or safe; that the enforcement of the statute would be far more objectionable, on constitutional grounds, where one of two or more lessees was deceased and the property found in a safety deposit box or a safe was owned jointly by the lessees, or where the lease was made by a co-partnership and the property belonged to- the co-partnership and one of the co-partners had died and the surviving joint owner or the surviving partner or partners were seeking to have the joint property or co-partnership property surrendered and delivered to such joint owner or surviving partner or partners. As to the case .of the death of one of two or more joint lessees, where the property of such joint lessees was deposited in the safety deposit box or safe but the property of the several lessees had not been commingled and the property of the surviving lessee could be readily separated from the property of the deceased lessee, we see no difficulty in the way of the enforcement of the statute. All that would be necessary for the appellant to do to protect the rights of the surviving lessee would be to deliver to him his property and protect the parties representing the deceased by holding the property which belonged to the deceased lessee. If inconvenience arises it would arise otit of the joint relation of the parties, and might as readily arise between the appellant, the surviving lessee and the personal representative or heir of the decedent as between the appellant and the surviving lessee and the State. Whatever inconvenience to the appellant or to the surviving lessee would be caused by the joint occupancy of the safety deposit box or safe would be necessarily an inconvenience which they must have contemplated when they entered into the joint relation, and would, we think, place -each of them in a position where they could not object to the owners of the property who succeeded to the rights of the deceased joint lessee (which would include the State) from obtaining their full rights in the property of the deceased lessee found in such safety deposit box or safe. We therefore conclude that there is no constitutional objectidn to the enforcement of the statute as to property owned jointly by a deceased lessee and another and deposited in a safety deposit box or safe, where the property of the several lessees has not been commingled by the acts of the parties but has been kept separate. We think it can be -said that where the property of joint lessees has been commingled or is jointly owned by the lessees, upon the death of one of the joint lessees the parties who succeeded to the rights of the deceased joint lessee (which would include the State) would have the 'right, as against the appellant and the surviving lessee, to have the amount, character and value of the property deposited jointly in such deposit box or safe determined before the property is surrendered or delivered by the appellant and to have the property belonging to the parties who succeeded to the rights of the decéased lessee valued and determined, and that the appellant and the surviving joint owner who had assisted in creating such joint relation could not complain of the enforcement of the statute, which was enacted for the determination of the rights of the parties (which would include the State) who sueceed, in part, to the rights of such deceased owner. Clearly, when the joint relationship was formed it was known to all joint owners who entered into the relation, as well as to the appellant, that if the death of one of the joint owners intervened before the joint relationship was terminated it would be necessary to determine the question of each joint owner’s interest in the property. We think the same course of reasoning which controls where property is found in a safety deposit box or safe which was leased jointly and where the property of each lessee has been kept separate and apart, must, in favor of the State and all others interested in the property, be applied as against the appellant and the joint surviving owner who has commingled his property with a joint lessee who has died, and that the statute can be enforced in the same manner against the appellant and the joint surviving lessee who has voluntarily commingled his property, as against appellant and a joint lessee who has kept.his property separate. We therefore hold the act constitutional in the latter as well as the former case.
A more difficult question is presented when the safety deposit box or safe has been leased by a co-partnership and one member of the co-partnership has died leaving co-partnership property remaining in such safety deposit box or safe. We think, however, if it be borne in mind that the co-partnership by the death of a co-partner is dissolved, and that while the assets may be lawfully retained by the surviving member or surviving members of the co-partnership they ultimately must account to the personal representative of the deceased partner for his share and that the inheritance tax will only be assessed upon the succession to what may remain after the partnership debts are paid, it must be held that the statute applies to a co-partnership lease and to co-partnership assets. We can see no objection to the personal representative of the deceased partner, and all other persons who have or will have an interest in his estate, (which would include the State,) being informed as to the amount, character and value of the co-partnership assets in a leased co-partnership safety deposit box or safe at the time of the dissolution of the partnership by the death of a partner. In the Graves case, supra, it was held that while questions may arise as to the persons ip whom the title rests, and such questions may affect the amount of the inheritance tax and the persons whose estate shall be chargeable with it, still, when those questions are finally determined, their determination relates back and becomes fixed as of the date of the death of the decedent. It can not be legitimately urged that the true object of the organization of the safety deposit company is to furnish receptacles where parties may secrete their property from the eye of the tax-assessing and tax-collecting officer of the State with a view of escaping taxation, or that when property is found in the possession of a safety deposit company which formerly belonged to a person who has since died or in which he is interested it should not be taxed, and we think no valid reason can be suggested why every person interested in property thus found (which would include the State) has not the right, whether it be held individually or jointly or by a co-partnership, to know the amount, value and kind of such property. When a partnership is dissolved by the death of a partner the law requires the surviving partner or partners to inventory the partnership estate, to have it appraised and to file a list of liabilities,— in short, to make a full showing of the partnership estate. It has never been thought that statutes of that character were unconstitutional by reason of the fact that the surviving partners were required thereby to disclose the partner- ' ship assets or spread upon the records of the county court the secrets of the business of the partnership. The whole scope and object of section 9 is to require a disclosure of the assets of the deceased person,—not alone those which are deposited in safety deposit vaults, but such as are held by trust companies, corporations, banks or other institutions or by any person or persons; and there is no valid reason why, when assets are deposited in the safety deposit boxes or safes of a safety deposit company for safe keeping, the State, and every other person having a property right in such deposit, upon the death of the depositor should not be permitted, at the time such assets are withdrawn from the vaults of the safety deposit company, to be informed of their character, value and amount. We are fully convinced that the statute legitimately places the State in the same position as any other owner in regard to its right to be informed as to the value of the assets of a deceased lessee, and that the right of the State to secure such information rests on valid constitutional grounds.
We will now consider in detail some of the objections which are specifically urged by counsel for the appellant against the constitutionality of section 9.
It is first contended that the section impairs the obligation of the charter of the appellant. The charter of the appellant, which is its contract with the State, provides that it is organized “for the express purpose of providing a suitable building or buildings with vaults and safes, with a special regard to protection against loss by fire, robbery or otherwise, and to carry on the business of safety deposit and storage.” In pursuance of its corporate powers it has provided a building and entered upon the business of renting safety deposit boxes and safes, and we are unable to ascertain wherein section 9 impairs, takes from or infringes any of the powers of the appellant granted to it by its charter. Section 9 in no way deprives the appellant of the right of constructing or renting a building, vaults, etc., or of renting its safety deposit boxes or safes, or deprives it of its right to act as a depository for hire and to receive and accept for deposit all securities or other valuables which may be delivered to it by its lessees, or prevents it from delivering to the rightful owner or owners of or persons entitled to all or .any of such securities or other valuables as may have been delivered to it, upon the termination of the relation which is created between it and its lessees. The utmost that can be said is, that upon the termination of the relation which has been created between the appellant and a lessee by the death of such lessee, it cannot part with the possession of or surrender the securities or other valuables which have been placed in its safety deposit box or safe without pursuing the method contained in section 9, to the end that if there is due upon the succession of the property deposited with it an inheritance tax, the amount of such inheritance tax may first be determined and collected. The law has always been that a bailee must deliver the bailmént to the person to whom it belongs, upon the termination of the contract of bailment, and all the legislature has done is to pass a statute which vests the State with an interest in the estate of a -deceased person which is subject to an inheritance tax, and which provides that where the bailment is terminated by the death of the lessee and the property is to be surrendered by the safety deposit company, the State shall be treated as a part owner of such bailment and receive notice, through its appropriate officer, of the proposed surrender, to the end that it may receive and be paid its proper proportion of the property so deposited with appellant. This, as has heretofore been determined, is not an unreasonable or unconstitutional regulation. That the State has the right to modify, regulate or impose conditions upon the right of succession, by inheritance or by will, to property which was owned by a person who has died there can be no question. (In re Estate of Speed, supra.) The right to take property in pursuance of descent or will is wholly, statutory, and that such right may be changed by the legislature is unquestioned. (Kochersperger v. Drake, supra; In re Estate of Speed, supra; In re Petition of Mulford, supra.) The right to bequeath or devise property by will or to take by inheritanee can be enjoyed only because such right is conferred by statute. (Evans v. Price, supra; Wunderle v. Wunderle, supra.) The proposition that the State has the right to provide for an inheritance tax and to levy the tax upon the right of the succession to property, and to provide that the State shall take a vested interest in the estate immediately upon the death of the deceased, has become in this State axiomatic. We do not think, therefore, that a law which, in fact, only requires that the appellant shall not, without notice to the State, deliver the property which it has received into its vaults where the owner or part owner of such property has died since its receipt by the appellant, and, if it is subject to an inheritance tax, not deliver the same, without the consent of the State, until the tax is paid, can rightfully be said to infringe upon the charter rights of the appellant.
It is also contended that the appellant is deprived of property and liberty without due process of law, and that it is deprived of the due protection of the law, by said section 9. Having heretofore reached the conclusion that a safety deposit company is in possession and control of the securities and other valuables delivered to it by its lessees, and that the relation of bailee and bailor exists between the safety deposit company and its lessee, and that upon the contingency of the death of a lessee who is an owner, in whole or in part, of property in the possession of the safety deposit company the safety deposit company may rightfully hold such deposit, and must hold it, until it can deliver it to the true owner, and that the State is a part owner of the deposit in case it is subject to the payment of an inheritance tax, we think by the terms of section 9 the appellant’s right of contract is not infringed upon and that it is not deprived of liberty, property or the due protection of the law,-—in short, that section 9 provides first for the determination of the question, Is the property subject to an inheritance • tax ?■—and if it is, that it must be paid before the appellant can rightfully part with the possession of the property. In this connection the objection to the statute that the appellant is made a trustee and tax gatherer without its consent may be considered, and the answer to these propositions will, we think, demonstrate the fallacy of the argument that the appellant has been deprived, by the statute, of liberty,, property and the due protection of the law.
The appellant is not a trustee in the ordinary sense, but a bailee, and the fact, if it were a fact, that it is used, in part, as a tax-assessing and tax-collecting officer would not invalidate the statute. Numerous statutes have been passed by the legislatures of this and other States which require banks, trustees, executors, administrators and agents to return for taxation property in their possession, and such statutes frequently provide that if the banks, trustees, executors, administrators and agents holding such property surrender the same without the tax thereon being paid, they shall be liable for the tax. (Walton v. Westwood, 73 Ill. 125; Ottawa Glass Co. v. McCaleb, 81 id. 556; Lockwood v. Johnson, 106 id. 334; Warren v. Cook, 116 id. 199; People’s Loan and Homestead Ass’n v. Keith, 153 id. 609; Scott v. People, 210 id. 594.) In many instances the corporations have been made collecting officers by being required to deduct the taxes from the stockholders’ interests and pay them over to the State. (Haight v. Pittsburg, Ft. Wayne and Chicago Railroad Co. 73 U. S. 15; United States v. Baltimore and Ohio Railroad Co. 84 id. 322; National Bank v. Commonwealth, 76 id. 353; Minot v. Philadelphia, W. & B. R. R. Co. 85 id. 230; Maltby v. Reading & C. R. R. Co. 52 Pa. 140.) In Citizens’ Nat. Bank v. Kentucky, 217 U. S. 443, the revenue law of Kentucky, which charged the banks with the duty of collecting the taxes on shares, was sustained. Mr. Cooley, in his work on Taxation, (vol. 2, 3d ed. p. 832,) in discussing this subject, says: “For the most part, the taxes levied by the State are collected of the persons taxed or enforced against the property in respect to which they are imposed. In a few cases, however, in which such a course could not work injustice, the State may reach the party taxed by indirection, and collect, in the first instance, from someone else, who in turn will become collector from the person on which the tax is really imposed. The reason for this is, that in such cases it is more convenient to the State and perhaps makes more certain the collection, and it could be resorted to only when the case is such that injustice could result to no one. A case of the kind is where a tax is imposed on the dividends or other receipts of shareholders from the profits of corporations, or upon their shares, or upon the interest paid by indebted corporations, and where the corporation is required to make the payment, which it would then deduct from the payment to be made to shareholders or to the holders of the evidences of indebtedness. There is no doubt of the right to do this, except as to payments to be made to non-residents, nor even as to them if the statute under which their interests were acquired provided for the levying and collecting of taxes jn that manner. Other instances are, where a tax is required under a lease, the amount of which tax may be deducted from the rent, or where the person having the custody of distilled spirits is obliged to pay the tax thereon, he being given a lien on them for what he so pays.” We conclude the appellant is not deprived of its liberty, property or due protection of the law or wrongfully made a trustee or tax-gathering agent against its will.
It is also uged that the property of the lessees of appellant is subject to unreasonable searches and seizures. In the case of People ex rel. Natch v. Reardon, 184 N. Y. 431, and People ex rel. Ferguson v. Reardon, 197 id. 236, the constitutionality of a statute was sustained which required the transferee of corporate stocks to keep a record of such transfer or transfers for the information of the tax-levying and tax-gathering officers, and in the corporation tax cases (Flint v. Stone-Tracy Co. 31 Sup. Ct. Rep. 343,) the Supreme Court of the United States sustained the constitutionality of a statute which required the corporations which fell within the "purview of the statute then under consideration to keep a record for the inspection of the revenue officer which showed the net income of such corporations. In the Flint case, Mr. Justice Day, who spoke for the court, in the course of his opinion (p. 358) said: “It is urged in a number of .the cases that in a certain feature of the statute there is a violation of the fourth amendment of the constitution, protecting against unreasonable searches and seizures. This amendment was adopted to protect against abuses in judicial procedure under the guise of law, which invade the privacy of persons in their homes, papers and effects, and applies to criminal prosecutions and suits for penalties and forfeitures under the revenue laws. (Boyd v. United States, 116 U. S. 632; 29 L. ed. 751; 6 Sup. Ct. Rep. 524.) It does not prevent the issue of search warrants for the seizure of gambling paraphernalia and other illegal matter. (Adams v. New York, 192 U. S. 585; 48 L. ed. 575; 24 Sup. Ct. Rep. 372.) It does not prevent the issuing of process to require attendance and testimony of witnesses, the production of books and papers, etc. (Inter-State Commerce Commission v. Brimson, 154 U. S. 447; 38 L. ed. 1047; 4 Int. Com. Rep. 545; 14 Sup. Ct. Rep. 1125; Inter-State Commerce Commission v. Baird, 194 U. S. 25; 48 L. ed. 860; 24 Sup. Ct. Rep. 563.) Certainly, the amendment was not intended to prevent the ordinary procedure in use in many, perhaps most, of the States, of requiring tax returns to be made, often under oath.” In the cases heretofore referred to, the assessed corporations or individuals were required to keep a record for the information of the tax-assessing and tax-collecting officers, while the statute under consideration here requires only that notice be given, and that the representative of the State be permitted to be present at the time the property is surrendered. The representative of the State, in this instance, gets the information first hand, while in the instances covered by the Reardon and Flint cases the tax officers obtained the information from a record which those statutes required to be kept for their information. If the legislature or Congress may require such record to be kept, we see no reason why the information, which is the important thing, may not be required to be given direct to the tax officer.
It is finally contended that the property of the appellant and its lessees is devoted to a public use without just .compensation, in this: that it is held pending the noticfe to the officers of the State required by the statute and pending the time of the determination by such officers of the liability to the succession of the property to be subjected to an inheritance tax. If the required notice is lawful and the determination of the question whether the succession to the property in the possession of the safety deposit company is subject to the payment of an inheritance tax is proper, then there is no infringement upon the constitutional provision, either State or national, which forbids property to be taken "for public use without just compensation. In the very nature of things, in the settlement of estates of deceased persons there must be some delay in determining who is entitled to receive the estate, and as we have heretofore held, when the appellant leases its safety deposit boxes and safes, it and its lessees must necessarily have contracted with reference to the inevitable fact that some of its lessees will die pending the continuation of their leases. This being true, we think it manifestly follows that appellant’s leases are made and the rent therefor is fixed upon the contingency that in case of the death of a lessee pending the lease there will be some delay in the delivery of the property of the lessee to the true owner by the appellant. The only damage that the appellant could incur in such cases would be the loss of box or safe rent during the time of said delay, which, upon a safety deposit box or safe which rents for five dollars a year, would be inconsiderable, and we must conclude, as to the appellant, that the question of box rent or safe rent is a matter that was taken into consideration when the lease was executed. As the lessee is dead, he clearly will be deprived of nothing by reason of such delay. Those persons who are to succeed to his estate take what they get only by force of the Statute of Descent and Statute of Wills, and as the inheritance or bequest which they receive comes to them burdened with the inheritance tax which the law places upon their right of succession, they necessarily take their inheritance or bequest subject to the costs, expenses and damages accruing out of the delays which must intervene before they may enjoy their inheritance or bequest. We therefore conclude that neither the appellant nor its lessees are, within the meaning of the law, deprived of property for a public use without just compensation.
We have given this case the patient care which its importance demands, and have reached the conclusion that section 9 of the Inheritance Tax law of 1909 is a valid and constitutional enactment.
The-decree of the circuit court will be affirmed.
Decree affirmed.
Farmer, Vickers and Cooke, JJ., dissenting.