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son should be taxed only on the beneficial | he received (People ex rel. George v. interest which he receives. It is not a tax, Nelms, supra), and the administrator or on the estate, but on the right to receive executor can only retain from any legacy a portion of the estate. Such is the law the inheritance tax due on that legacy. generally. Knowlton v. Moore, 178 U. S. Section 4 of the inheritance tax law of 41, 44 L. ed. 969, 20 Sup. Ct. Rep. 747; this state provides that any trustee "havRe Westurn, 152 N. Y. 93, 46 N. E. 315. ing any charge or trust in legacies or propThe California courts have held that under erty for distribution, subject to the said its probate act the probate court can do no tax, shall deduct the tax therefrom.” The more than pay the claims against an estate Northern Trust Company, as trustee, is and distribute the remainder to the heirs charged with the responsibility of paying and devisees, or direct the administrator out of the respective amounts of the Calito do so; that it has no power to appro- fornia personal property that came to its priate the share of an heir or devisee to possession for the various beneficiaries, the the payment of his debts. Re Nerac, 35 Illinois inheritance tax on such legacies beCal. 392, 95 Am. Dec. 111; Dunsmoor v. fore paying the legacies, but neither the Furstenfeldt, 88 Cal. 522, 12 L.R.A, 508, administrator nor said trustee should be 22 Am. St. Rep. 331, 26 Pac. ,518; 3 Kerr's charged with the inheritance taxes on Cyclopedic Codes of California Civil Proc. those legacies which did not come to their | 1666, p. 2145. True, the California stat. hands, but were paid out directly by the ute provides that the administrator or California administrator. While such payexecutor may retain out of the funds in his ment directly by said California adminishands sufficient to pay the inheritance tax trator did not make the legacies so paid imposed by the California statute, but that free from the Illinois inheritance tax, yet provision has no reference to an inheritance the collection of that tax, if possible to tax imposed by a foreign jurisdiction be made at all, would be from the indiagainst a portion of the estate or against vidual beneficiaries. There seems to be no the person entitled thereto. Under the dispute that the correct amount of inherstatute and practice of California courts, itance taxes was imposed in the county the Illinois inheritance tax must be held court as to trust funds paid over to the to be a claim or debt against the dis- Northern Trust Company by the California tributee or a portion of the estate, and not administrator, if that court had the right against the estate itself. The conclusion to impose any tax as to the California necessarily follows that the judgment of the assets. As we understand this record, some county court did not deny to the California of these taxes are due now, and some may court proceedings in question the full faith fall due hereafter. and credit to which they were entitled by Counsel for appellants further insist that the Constitution and laws of the United the court erred in basing the inheritance States.

tax against Maud Robinson King, the The order of the county court did not widow, on a supposed succession by her to attempt to impose a liability upon the Cali. one half of the entire estate. If the antefornia administrator or his bondsmen, or nuptial agreement was valid and binding create a lien on any property in that state. upon the widow, she would only be entitled Section 5 of the inheritance tax act provides to receive the $100,000 under said contract that executors, administrators, and trustees and an additional $10,000 as a legacy under shall be personally liable for the payment the will, and the inheritance tax on her of taxes and interest. This provision of right to succeed would be fixed on such the statute applies only to property within amounts. People v. Field, 248 Ill. 147, 33 this state at the date of the testator's death, L.R.A. (N.S.) 230, 93 N. E. 721. If said or to property that thereafter comes into antenuptial agreement void, then, the possession of the executor, adminis- under the statute, she could renounce her trator, or trustee. The administrator here rights under the will and elect to take, in received none of the California personal lieu of dower and other rights, one half property or its proceeds. A part of it was of the real and personal estate after the paid out in costs of administration in that payment of just debts and claims. In the state and to the legatees and the balance latter event the amount of the inheritance turned over to the trustee under the will, tax would be fixed by the amount that the Northern Trust Company. Under our she was entitled to receive under the law the administrator or executor or trus- statute. Billings v. People, 189 Ill. 472, 59 tee cannot retain out of the property that L.R.A. 807, 59 N. E. 798. comes into his hands as a gross amount the It is contended by counsel for the people entire sum of the inheritance taxes imposed. that the renunciation under the will filed That law intended that a person should in the probate court of Cook county, taken be taxed only on the beneficial interest that' in connection with the compromise, canceled


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and rendered null and void the antenuptial INDIANA SUPREME COURT. contract, while counsel for the appellants insist that the settlement did not render PITTSBURGH, CINCINNATI, CHICAGO, & the contract void, but was simply a com

ST. LOUIS RAILWAY COMPANY, Appt., promise to adjust the differences between the contending interests. The estate, under

STATE OF INDIANA. the statute of descent or by the statute

(180 Ind. 245, 102 N. E. 25.) of wills, vests in the party entitled to receive it upon the death of the decedent. Interstate commerce - form of cars The inheritance tax accrues at the time

power of state. the estate vests. If, in order to avoid 1. A state may, without interfering with litigation, the legatees, contestants, and the commerce clause of the Federal Constiothers in interest under a will compromise tution, prescrible the length of and form of their claims, the concessions made, while running gear upon caboose cars used in the binding upon the parties, take effect under state; at least in the absence of any legisthe agreement, and are not a modification by the ľnterstate Commerce Commission up

lation by Congress or attempted regulation of the will or the rights under it, or under

on the subject. the intestate laws of the state. Re Graves, Evidence

to prove unconstitutional. 242 Ill. 212, 89 N. E. 978; Baxter v. The

ity of statute admissibility. Treasurer, 209 Mass. 459, 95 N. E. 854. To 2. Evidence is not admissible to show permit the heirs, legatees, and parties in that a statute requiring caboose cars to be terested in an estate to change, by agree of a certain length and to be mounted on ment among themselves after the death of certain running gear is unreasonable bethe testator or decedent, the proportionate

cause cars corresponding to those specified amounts of the property on which the

are not required for safety, and therefore

that the statute which places additional respective beneficiaries should pay an inheritance tax, might in some instances prac: taking property without due process of law.

expense on railroad companies is void as tically deprive the state of all power of Same - judical notice constitutional. collecting any inheritance tax. Without set

ity of statute. ting out at length the details of the decree 3. The court does not judicially know of the circuit court confirming the com- that a caboose car 24 feet long with adpromise agreement, we deem it sufficient to justable and oscillating four-wheeled trucks say that we do not think the decree or the is not more safe than one 18 feet long with agreement annulled and set aside the ante- two-wheeled rigid ones, so as to declare a nuptial contract. They constituted an ad- statute requiring a change from the one to

the other unconstitutional as taking propjustment and compromise of the dispute as

erty without due process of law. t the validity of the antenuptial contract,

Statute separable sections right to whereby the widow received much less than

question constitutionality. she would have received under the statute 4. A railroad company prosecuted for if she had renounced the will and the ante violating the provisions of a statute requirnuptial contract was held void, but much ing it to remodel caboose cars which go into more than she would have received under the shop for repairs cannot question the the antenuptial contract and the will. The validity of sections of the statute attemptwidow received from the estate of the tes- ing to confer powers upon the Railroad Comtator, as her beneficial interest under the necessary to the determination of the cause,

mission, the provisions of which are not will and the intestate laws of this state, and are separable from the sections under $110,000, and this is the amount upon which which the prosecution is conducted. she should pay an inheritance tax, less

(June 3, 1913.) the exemption to which she, as widow, is entitled. The county court should have so Note. Consideration of extrinsic evi. held.

dence to show unconstitutionality of The judgment of the county court will be

statute. reversed and the cause remanded to that court for further proceedings in harmony Stevenson v. Colgan, 14 L.R.A. 459.

This note is supplemental to the note to with the views herein expressed.

Cases as to evidence of passage of acts

are excluded. On that question, see note Petition for rehearing denied October 3, to Atchison, T. & S. F. R. ('o. v. State, 40 1912.

L.R.A. ( V.S.) 1.

This note includes only the comparatively Writ of error dismissed by Supreme will be seen that in most of the cases cited

few cases where the subject is discussed. It Court of United States for want of finality infra, the court declined to take evidence. in judgment, April 13, 1914, 234 U. S. 748, On the other hand in the rate cases it is a 58 L. ed. 1575, 34 Sup. Ct. Rep. 673. matter of course to admit without discussion

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PPEAL by defendant from a judgment De Cuir, 95 U. S. 485, 490, 497, 24 L. ed.

of the Criminal Court for Marion 547, 548, 551; Bowman v, Chicago & N. W. County convicting it of violating the act R. Co. 125 U. S. 465, 31 L. ed. 700, 1 Inters. regulating the size and construction of Com. Rep. 823, 8 Sup. Ct. Rep. 689, 1062; caboose cars. Affirmed.

Gloucester Ferry Co. v. Pennsylvania, 114 The facts are stated in the opinion. U. S. 196, 29 L. ed. 158, 1 Inters. Com.

Messrs. Samuel O. Pickens and Owen Rep. 382, 5 Sup. Ct. Rep. 826; Henderson Pickens, for appellant:

v. New York (Henderson v. Wickham), 92 The act of March 1, 1911, is a regulation | U. S. 259, 272, 23 L. ed. 543, 549; Lake of interstate commerce, and therefore void, Shore & M. S. R. Co. v. Ohio, 173 U. S. in that it is repugnant to § 8 of article 1285, 43 L. ed. 702, 19 Sup. Ct. Rep. 465; of the Constitution of the United States Southern R. Co. v. United States, 222 U. S. and the laws of the United States made 20, 56 L. ed. 72, 32 Sup. Ct. Rep. 2, 3 thereunder and in pursuance thereof. N. C. C. A. 822; Northern P. R. Co. v.

Western U. Teleg. Co. v. James, 162 U. S. Washington, 222 U. S. 370, 56 L. ed. 237, 650, 655, 40 L. ed. 1105, 1106, 16 Sup. Ct. 32 Sup. Ct. Rep. 160; 2 Willoughby, Const. Rep. 934; Hannibal & St. J. R. Co. v. Hu- $ 310; Southern R. Co. v. Reid, 222 U. S. sen, 95 U. S. 465, 24 L. ed. 527; Hall v. '424, 56 L. ed. 257, 32 Sup. Ct. Rep. 140; evidence of facts bearing upon the question against a legislative assault, it does not

1 whether the rate is or is not reasonable. seem possible at present to go further and

Whatever the practical result in a par- point out any general rule declaring in what ticular case, it must be admitted in theory cases they will take evidence, and in what (1) that a constitutional right is entitled cases they will limit their inquiry to facts to protection; (2) that the courts will pro- of which they may take judicial notice. In tect it against the assault of the legisla- general, the courts will not take evidence, ture, and (3) that if necessary they will for example, to overthrow health statutes, take extrinsic evidence for that purpose (as, and if the health cases seem to be governed for example, in the rate cases). There is by a general rule that the courts will not intherefore no general principle of law that terfere with the decision of the legislature the courts, in considering the validity of a upon a question where there is a controversy statute, are limited to facts of which they as to the facts, how are we to distinguish may take judicial notice.

the rate cases except by the assumption that "If

a statute purporting to have the salient fact is capable of exact ascerbeen enacted to protect the public health, tainment in the rate cases, and not in the the public morals, or the public safety has health cases, that the one is matter of fact no real or substantial relation to those ob- and the other matter of opinion, which is jects, or is a palpable invasion of rights hardly satisfactory. That there is no rule secured by the fundamental law, it is the of law on the subject is indicated by the reduty of the courts to so adjudge.” Harlan, markable statement in Monongahela Bridge J., obiter, in Mugler v. Kansas, 123 U. S. Co. v. United States, 216 U. S. 177, 54 L. ed. 623, 31 L. ed. 205, 8 Sup. Ct. Rep. 273. 435, 30 Sup. Ct. Rep. 356, where the court,

In Chicago, M. & St. P. R. Co. v. Tomp in refusing to review the decision of the kins, 176 U. S. 167, 44 L. ed. 417, 20 Sup. Secretary of War under the Federal statute Ct. Rep. 336, Brewer, J., said: “Courts of 1899, that a certain bridge was an unreamay not inquire whether any given act is sonable obstruction to free navigation, said: wise or unwise, and only when such act "Learned counsel for the defendant suggests trespasses upon vested rights may the courts some extreme cases showing how reckless intervene. A single illustration will make and arbitrary might be the action of executhis clear: It is within the competency of tive officers proceeding under an act of Conthe legislature to determine when and what gress, the enforcement of which affects the property shall be taken for public uses. enjoyment or value of private property. It That question is one of policy over which will be time enough to deal with such cases the courts have no supervision; but if, af- as and when they arise. Suffice it to say ter determining that certain property shall that the courts have rarely, if ever, felt be taken for public uses, the legislature themselves so restrained by technical rules proceeds further, and declares that only a that they could not find some remedy concertain price shall be paid for it, then the sistent with the law, for acts, whether done owner may challenge the validity of that by government or by individual persons, part of the act, may contend that his prop that violated natural justice, or were hoserty is taken without due compensation; tile to the fundamental principles devised and the legislative determination of value for the protection of the essential rights of does not preclude an investigation in the property.” proper judicial tribunals. The same principle applies when vested rights of property

Health laws, etc. are disturbed by a legislative enactment in respect to rates."

It has been held that in matters of the Having thus reached the principle that public health the court would not admit the the courts, if necessary, can and will take testimony of experts in order to review the evidence to protect a constitutional right' action of the legislature. Com. v. Pear,

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State ex rel. Railroad Commission v. Adams, Sup. Ct. Rep. 499; Mugler v. Kansas, 123 Exp. Co. 171 Ind. 138, 19 L.R.A. (N.S.) U. S. 623, 31 L. ed. 205, 8 Sup. (t. Rep. 93, 85 N. E. 337, 966.

273; Re Marshall, 102 Fed. 323; Ives v. It is void because it deprives defendant South Buffalo R. Co. 201 N. Y. 271, 34 L.R.A. of its property without due process of (N.S.) 162, 94 N. E. 431, Ann. Cas. 1912B, law, and denies it the equal protection of 156, 1 N. C. C. A, 517; State v. Redmon, the laws.

134 Wis. 89, 14 L.R.1.(N.S.) 229, 126 Davidson v. New Orleans, 96 U. S. 97, Am. St. Rep. 1003, 114 N. W. 137, 15 Ann. 107, 24 L. ed. 616, 620; Lochner v. New Cas. 408. York, 198 U. S. 45, 49 L. ed. 937, 25 Sup. It is void because it delegates legislative Ct. Rep. 539, 3 Ann. Cas. 1133; Re Jacobs, power to the Railroad Commission of In98 N. Y. 98, 50 Am. Rep. 636; Chicago diana, in violation of the Constitution. v. Netcher, 183 Ill. 104, 48 L.R.A. 261, Cooley, Const. Lim. 6th ed. p. 137; Blue 75 Am. St. Rep. 93, 55 N. E. 707; Ritchie v. Beach, 155 Ind. 133, 50 L.R.A. 64, 80 v. People, 155 n. 98, 29 L.R.A. 79, 46 Am. St. Rep. 195, 56 N. E. 89; Union Am. St. Rep. 315, 40 N. E. 454; Freund, Bridge Co. v. United States, 204 U. S. 364, Pol. Power, $$ 137, 144; Lawton v. Steele, 51 L. ed. 523, 27 Sup. Ct. Rep. 367; Arnett 152 U. S. 133, 137, 38 L. ed. 385, 388, 14 v. State, 168 Ind. 180, 8 L.R.A. (V.S.) 1192, 183 Mass. 242, 67 L.R.A. 935, 66 N. E. 719, Ordinarily it cannot, we think, be a quesaitirmed in 197 U. S. 11, 49 L. ed. 643, 25 tion of fact for the jury.” Sup. Ct. Rep. 358, 3 Ann. Cas. 765 (com- In State v. Layton, 160 Mo. 474, 62 L.R.A. pulsory vaccination) ; State v. Cantwell, 179 163, 83 Am. St. Rep. 487, 61 S. W. 171, the No. 245, 78 S. W. 569, aflirmed in 199 U. S. court, in sustaining a statute forbidding the 602, 50 L. ed. 329, 26 Sup. Ct. Rep. 749 sale of any article to be used in the prepa(limiting hours of labor of men in mines); ration of food which contains alum, etc., People v. Elerding, 254 Ill. 579, 40 L.R.A. said: “What, then, is the test when the (N.S.) 893, 98 N. E. 982 (limiting hours of constitutionality of an act of the legislawomen in certain employments); State v. ture is assailed as invading the right of Somerville, 67 Wash. 638, 122 Pac. 324 the citizen to use his faculties in the pro(a similar statute); People v. Worden duction of an article for sale of food or Grocer Co. 118 Mich. 604, 77 N. W. 315, drink? We answer that, if it be an article (prescribing the proportion of vinegar in. so universally conceded to be wholesome gredients).

and innocuous that the court may take juSee also to similar effect Shelby v. Cleve. dicial notice of it, the legislature, under land Mill & Power Co. 155 N. C. 196, 35 the Constitution, has no right to absolutely L.R.A. (N.S.) 488, 71 S. E. 218, Ann. Cas. prohibit it; but if there is a dispute as to 1912C, 179 (prohibiting discharge of un- the fact of its wholesomeness for food or purified sewage into waters used for drink drink, then the legislature can either regii. ing); People v. Smith, 108 Mien. 527, 32 late or prohibit it. The constitutionality L.R.A. 853, 62 Am. St. Rep. 715, 66 N. W. of the law is not to be determined upon the 382 (requiring blowers to carry away dust question of fact in each case, but the courts from emery wheels.

determine for themselves upon the fundaWhere there is a doubt whether a sub- mental principles of Constitution, stance denounced by a statute as injurious, which vests the legislative power in the to food is or is not so injurious the general assembly, and the rule of construccourt will not investigate the facts for tion adopted by our courts, 'that an act of the purpose of determining whether the dec. the legislature is not to be declared void laration of the legislature was warranted unless the violation of the Constitution is by the facts. People v. Price, 257 1. 587, so manifest as to leave no room for reason101 N. E. 196, Ann. Cas. 1914A, 1154. able doubt.'»

In State v. Schlenker, 112 Jowa, 642, 51 L.R.A. 347, 84 Am. St. Rep. 360, 84 N. W. Statute commanding railroad to maintain 698, the court sustained a statute prohibit

a certain station. ing the adulteration of milk, which provided that "for the purpose of this chapter the In Louisiana & A. R. Co. v. State, 85 Ark. addition of water or any other substance or 12, 106 S. W. 960, it was held upon a prosething, to whole milk, or skimmed milk or cution against a railroad company for fail. partly skimmed milk, is hereby declared an ure to locate and maintain a station at a idul:eration," and said: "That the con certain point as commanded by statute, stitutionality of the statute ought not to be that it was error to exclude evidence of: made to depend on the finding of a jury on fered by the company tending to show that the facts of a case is manifest. If the plain there was no public necessity for a station provisions of the Constitution have been at the place named, the court stating that violated, or if the act cannot be said to be the fact, if proved, that the cost of erecta proper exercise of the police power in ing and maintaining the station would be view of the facts of which udi notice greatly in excess of and out of proportion may be taken, then the duty of declaring to the revenues to be possibly derived from the act invalid is clear. But, in the ab- the business at that place would be imsence of such finding, the act should stand. portant for the court to consider in de


80 N. E. 153; Anderson v. Manchester Fire commerce, and does not violate § 8 of article Assur. Co. 59 Minn. 182, 28 L.R.A. 609, 501 of the Constitution of the United States Am. St. Rep. 400, 60 N. W. 1095, 63 N. W. and the laws of the United States enacted 241; Dowling v. Lancashire Ins. Co. 92 Wis. thereunder and in pursuance thereof. 63, 31 L.R.A. 112, 65 N. W. 738; King v. Pittsburgh, C. C. & St. L. R. Co. v. State, Concordia F. Ins. Co. 140 Mich. 258, 103 172 Ind. 162, 87 N. E. 1034; State v. LouisN. W. 616, 6 Ann. Cas. 87; O'Neil v. Amer ville & N. R. Co. 177 Ind. 553, 96 N. E. ican F. Ins. Co. 166 Pa. 72, 26 L.R.A. 715, 342, Ann. Cas. 1914D, 1284; New York 45 Am. St. Rep. 650, 30 Atl. 943; United N. H. & H. R. Co. v. New York, 165 U. S. States v. Grimaud, 170 Fed. 205 ; Elkhart v. Murray, 165 Ind. 304, 1 L. R.A.(N.S.) 632, 41 L. ed. 854, 17 Sup. Ct. Rep. 418; 940, 112 Am. St. Rep. 228, 75 N. E. 593, Chicago, R. I. & P. R. Co. V. Arkansas, 219 6 Ann. Cas. 748; McPherson v. State, 174 U. S. 465, 55 L. ed. 296, 31 Sup. Ct. Rep. Ind. 60, 31 L.R.A. (N.S.) 188, 90 N. E. 610. 275; Southern R. Co. v. Reid, 222 U. S.

Mr. Thomas H. Branaman, with Mr. 436, 437, 56 L. ed. 260, 32 Sup. Ct. Rep. Thomas M. Honan, Attorney General, for 140. appellee:

The act is not in conflict witi s 1 of The act is not a regulation of interstate the 14th Amendment of the Constitution termining whether or not the requirement Counsel contends that, because facts alwas arbitrary and unreasonable, and wheth- leged are admitted by demurrer, the coner or not there was any corresponding neces- ditions set up in the complaint as existing sity for a station. “How, it may be asked,” in different counties shouid, for the purpose said the court, “is the question to be pre- of determining the validity of the law, be sented and determined whether the statute taken as true. This position is untenable. is a proper exercise of legislative power and The law must be tested as to its constituvalid ? Is the validity of the statute a tionality by its language in the light of such question of law or one of fact? We answer matters as the court will take judicial notice that it is a question of law for the deter- of.” mination of the court. The court may,

In Farquharson v. Yeargin, 24 Wash. 549, however, and should, call to its aid all the 64 Pac. 717, it was urged that an act estabavailable facts and information concerning lishing a new county of Ferry was invalid the public necessity for the maintenance of because it nowhere appears in the records a station at that place, the cost of erect. of the lower house or the senate that the ing and maintaining it, as well as any territory proposed to be set off as Ferry oiber facts tending to show whether there county had, at the time of presenting the is a necessity for a station, and whether the petition to create such a new county, a poprequirement placed upon the company to ulation of 2,000, as required by $ 3 of art. îi build and maintain it is a reasonable one." of the Constitution of the state." The court

quoted Lusher v. Scites, 4 W. Va. 11, cited Formation of counties.

in the earlier note, and said: “We do not

think that it is necessary that the records In Lee v. Tucker, 130 Ga. 48, 60 S. E. of the senate or the house should contain 164, it was held that when the journals of a recital of the facts determined by the the general assembly show nothing to the legislature relative to population, any more contrary, the courts cannot inquire whether than a final judgment in a court of general at the time of a legislative change of a jurisdiction should contain a recital of the county site, there had been the constitu- | facts upon which it is based. Courts, in tional requirement of "a two-thirds vote of considering such acts, unless contrary facts the qualitied voters of the county, voting appear affirmatively in the act under conat an election for that purpose," as there is sideration, must assume that legislative no authority in the courts to hear evidence discretion has been properly exercised. on the subject,-citing and following Cutch evidence was required of a fact, it must be

v. Crawford, 103 Ga. 180, 31 S. E. supposed that was before the legislature 139, where it was held that a certified copy when the act was passed; and if any special of the election return from the oflice of finding was required to warrant the passage the secretary of state, which showed that of the particular act, it would seem that the requisite vote had not been cast for the passage of the act itself might be held the removal, was not admissible, as the equivalent to such finding." court was bound to presume that the legislature in some way had satisfied itself that

Miscellaneous matters. the constitutional two-thirds vote had been given for the change.

In Conlin v. San Francisco, 99 Cal. 20, 21 In State ex rel. Scanlan v. Archibold, 146 L.R.A. 476, 37 Am. St. Rep. 17, 33 Pac. Wis. 363, 131 N. W. 895, the court, in sus. 753, while the appellate court held void as taining the constitutionality of a statute an unconstitutional gift, an act directing a providing certain matters as to the govern- county to pay a claim against it, which act ment of counties above a certain population, stated that the claimant could not obtain and attacked as lacking the degree of uni- compensation in the statutory mode "by reaformity required by the Constitution, said: son of errors, omissions, and irregularities


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