1856, but the exemption remained superior | Amendment, recognizing a distinction between to legislative change. Southwestern R. R. citizenship of the United States and citizenship Co. v. Georgia, 92 U. S. 676, 23 L. Ed. 762. of one of the states, places beyond abridg As remarked by Chief Justice Waite in a ment by the states, are those which owe their like suit between the same parties, the lan-existence to the federal government, its naguage of the exempting clause is somewhat tional character, its Constitution, or its laws. unusual, and means the railroad specified in 4. CONSTITUTIONAL LAW 206 (1), 207(4)— STATE TRANSFER TAX DOES NOT INFRINGE ON RIGHTS OF CITIZENS. *525 the charter and none other. Southwestern R. R. Co. v. Georgia, 116 U. S. 231, 6 Sup. Ct. 375, 29 L. Ed. 626. But conversely it means that that road shall be exempt while owned by this corporation whether used or demised. (250 U. S. 525) MAXWELL et al. v. BUGBEE, Comptroller Nos. 43, 238. 1. TAXATION 856, 859(1)-TRANSFER TAX IS ON RIGHT OF SUCCESSION WITHIN TAXING POWER OF STATE. The tax imposed by Act N. J. April 20, 1909 (P. L. p. 325), §§ 1, 12, as amended by Act April 9, 1914 (P. L. p. 267), on the transfer by will or intestate law of property in the state of a nonresident decedent, is on the right of succession, a creature of local laws, and within the taxing power of the state, and is constitutional. 3. CONSTITUTIONAL LAW 206(1)—PRIVILEG- OF THE UNITED STATES ARE THOSE BASED Act N. J. April 20, 1909 (P. L. p. 325), as amended by Act April 9, 1914 (P. L. p. 267), regulating and taxing the right to succeed to property in the state on the death of a nonresident owner, does not infringe any of the rights of citizenship, either of the states or of the United States, secured by Const. art. 4, § 2, par. 1, or the Fourteenth Amendment. The privileges and immunities of citizens of the United States, which the Fourteenth 5. CONSTITUTIONAL LAW 206(1), 207(4) — Any discrimination in Act N. J. April 20, 1909 (P. L. p. 325) §§ 1, 12, as amended by Act April 9, 1914 (P. L. p. 267), being based on deceased's residence within or without the state, Const. art. 4, § 2, par. 1, and the Fourteenth Amendment, as to privileges and immunities of citizens, are not strictly applicable. 6. CONSTITUTIONAL LAW 283-TRANSFER TAX ON PROPERTY IN STATE OF NONRESIDENT DECEDENT NOT WANTING IN DUE PROCESS. Act N. J. April 20, 1909 (P. L. p. 325) §§ 1, 12, amended by Act April 9, 1914 (P. L. p. 267), by adopting as a measure of the tax on the transfer of property within the state of a nonresident decedent the proportion which does not in effect tax property beyond its juristhe local property bears to the entire estate, diction, and so amount to a deprivation of property without due process of law. 2. CONSTITUTIONAL LAW 207(1) STATES legitimate authority of the state. PROHIBITED TO DISCRIMINATE AGAINST CITI- Const. art. 4, § 2, par. 1, is intended to prevent discrimination by the several states against citizens of other states in respect of the fundamental privilege of citizenship. 7. CONSTITUTIONAL LAW 229(1)—TRANSFER The equal protection of the law, which must be decided as between resident and nonresident decedents as classes, rather than by the incidents of a particular estate, is not denied by Act N. J. April 20, 1909 (P. L. p. 325), §§ 1, 12, as amended by Act April 9, 1914 (P. L. p. 267), adopting as the measure of the tax on the transfer of property within the state of a nonresident decedent the proportion of the local estate in certain property to the entire estate; the difference in the manner of assessment as between the two classes not being so wholly arbitrary and unreasonable as to be beyond the The Chief Justice, Mr. Justice Holmes, Mr. Justice Van Devanter, and Mr. Justice McReynolds, dissenting. In Error to the Court of Errors and Appeals of the State of New Jersey. Certiorari by Lawrence Maxwell and another, executors of James McDonald, deceased, against Newton A. K. Bugbee, Comptroller of the Treasury of the State of New Jersey, and another, to review an assess For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (40 Sup.Ct.) ment of a transfer tax, with a like proceed-, testate law, of property within the state, and ing by Louis W. Hill, administrator of James the decedent was a nonresident of the state at J. Hill, deceased. In the former case, judg- the time of his death." ment of the Supreme Court of New Jersey, affirming the tax, was affirmed by the Court of Errors and Appeals of that state (90 N. J. Law, 707, 101 Atl. 248); and in the latter case, judgment of the Supreme Court, modifying the tax, was affirmed by the Court of Errors and Appeals (92 N. J. Law, 514, 105 Atl. 893). Prosecutors bring error. Affirmed. In No. 43: And by section 12 it was provided that upon the transfer of property in that state of a nonresident decedent, if all or any part of the estate, wherever situated, passed to persons or corporations who would have been taxable under the act if the decedent had been a resident of the state, such property located within the state was made subject to a tax bearing the same ratio to the entire tax which the estate of such decedent would have been subject to under the act if the nonresident decedent had been a resident of the In No. 238: Messrs. E. C. Lindley, of St. Paul, Minn., and Joseph Coult and William A. Smith, both state, as the property located in the state of Newark, N. J., for plaintiff in error. *532 bore to the entire estate of such nonresident Mr. John R. Hardin, of Newark, N. J., for decedent wherever situated. defendants in error. Messrs. Joseph Coult, of Newark, N. J., Lawrence Maxwell, of Cincinnati, Ohio, and William A. Smith, of Newark, N. J., for plaintiffs in error. Messrs. John W. Westcott, of Camden, N. J., and John R. Hardin, of Newark, N. J., for defendants in error. The taxes thus imposed were at the rate of 5 per cent. upon the clear market value of the property, with exemptions not necessary to be specified, and were payable to the treasurer for the use of the state of New Jersey. 530 The act, having first been amended by an act approved March 26, 1914 (P. L. 1914, p. *Mr. Justice DAY delivered the opinion of 91), not necessary to be recited, was again the Court. amended by the act approved April 9, 1914, which is now under consideration (P. L. 1914, p. 267; 1 Supp. Comp. Stat. N. J. pp. 15381542). Sections 1 and 12 were amended, the former by confining the tax on the transfer of property within the state of nonresident decedents to real estate, tangible personal property and shares of stock of New Jersey corporations and of national banks located within the state; and by modifying the former rate of 5 per centum upon the clear market value of the property passing, which was and other charitable institutions, and of parsubject to exemptions in favor of churches ents, children, and other lineal descendants, etc., by making 5 per centum the applicable rate, but subject to numerous exceptions, and in the excepted cases imposing different rates, dependent upon the relationship of the beneficiary to the deceased and the amount of the property transferred. Thus: These cases were argued and submitted together, involve the same constitutional questions, and may be disposed of in a single opinion. The attack is upon the inheritance tax law of the state of New Jersey, and is based upon certain provisions of the federal Constitution. The statute has reference to the method of imposing inheritance taxes under the laws of the state. The constitutional- | ity of the law upon both state and federal grounds was upheld in the McDonald Case by 531 the Court of Errors and *Appeals. 90 N. J. Law, 707, 101 Atl. 248. In the Hill Case the judgment of the Supreme Court of New Jersey (91 N. J. Law, 454, 103 Atl. 861) was affirmed by the Court of Errors and Appeals (92 N. J. Law, 514, 105 Atl. 893). The statute under consideration is an act approved April 9, 1914, (P. L. 1914, p. 267), being an amendment to an act approved "Property transferred to any child or chil April 20, 1909 (P. L. 1909, p. 325), for taxing dren, husband or wife, of a decedent, or to the the transfer of property of resident and nonresident decedents by devise, bequest, descent, etc., in certain cases. The 1909 act is found in 4 Comp. Stat. N. J. p. 5301 et seq; the amendment, in 1 Supp. Comp. Stat. N. J. pp. 1538-1542. The act of 1909, in its first section, imposed a tax upon the transfer of any property, real and personal, of the value of $500 or over, or of any interest therein or income therefrom, in trust or otherwise, to per-dred and fifty thousand dollars; and three per sons or corporations including the following centum on any amount in excess of two hundred and fifty thousand dollars." shall be taxed at the rate of one per centum issue of any child or children of a decedent, on any amount in excess of five thousand dollars, up to fifty thousand dollars; one and one-half per centum on any amount in excess to [of] fifty thousand dollars, up to one hundred and fifty thousand dollars; two per centum on any amount in excess of one hundred and fifty thousand dollars, up to two hun cases: "First. When the transfer is by will or by the intestate laws of this state from any person dying seized or possessed of the property while a resident of the state. The modified formula for computing the assessment upon the transfer of the estate of a nonresident decedent prescribed in section 12 as amended by the act under consideration, is as follows: "A tax shall be assessed on the transfer of, 018.43. *533 property made *subject to tax as aforesaid, in this state of a nonresident decedent if all or any part of the estate of such decedent, wherever situated, shall pass to persons or corporations taxable under this act, which tax shall bear the same ratio to the entire tax which the said estate would have been subject to under this act if such nonresident decedent had been a resident of this state, and all his property, real and personal, had been located within this state, as such taxable property within this state bears to the entire estate, wherever situated: Provided, that nothing in this clause contained shall apply to any specific bequest or devise of any property in this state." Following the statute, the tax was first ascertained on the entire estate as if it were the estate of a resident of the state of New Jersey, with all the decedent's property both real and personal located there; the tax was then apportioned and assessed in the proportion that the taxable New Jersey estate bore to the entire estate. An amendatory act, approved April 23, 1915 (P. L. 1915, p. 745; 1 Supp. Comp. Stat. N. J. p. 1542), repeated the provision last quoted, and made no change in the act pertinent to the questions here presented. James McDonald died January 13, 1915, owning stock in the Standard Oil Company, a New Jersey corporation, valued at $1,114,965, leaving an entire estate of $3,969,333.25, which included some real estate in the state of Idaho. Of the entire estate, $279,813.17 went to pay debts and expenses of administration. Mr. McDonald was a citizen of the United States and a resident of the District of Columbia, and left a will and a codicil which were admitted to probate by the Supreme Court of that District. The executors are Lawrence Maxwell, a citizen of Ohio, and the Fulton Trust Company, a New York corporation. The principal beneficiaries under the will are citizens and residents of states of the United States other than the state of New Jersey. Under the will the wife takes by specific legacies; the other beneficiaries are specific and general legatees not related to the deceased and a son and two grandchildren, who take the residuary estate. James J. Hill died May 29, 1916, intestate, *534 a resident and citizen of the state of Minne- The The thing complained of is that applying the apportionment formula fixed by the statute, in the cases under review, results in a greater tax on the transfer of property of the estates subject to the jurisdiction of New Jersey, than would be assessed for the transfer of an equal amount, in a similar manner, of property of a decedent who died a resident of New Jersey. The cause of this inequality is said to arise because of imposing the graduated tax, provided by the statute, upon estates so large as these. If a resident, in the case of a wife or children, the first $5, matter in controversy. It is this method of assessment in the case of nonresident decedents which is the subject-000 of property is exempt, the next $45,000 is taxed at the rate of 1 per cent., the next $100,000 at the rate of 11⁄2 per cent., the next $100,000 at the rate of 2 per cent., and the remainder at the rate of 3 per cent. The contention is that, applying the apportionment rule provided in the case of nonresident estates, a larger amount of tax is assessed. The amount of the assessment in the McDonald Case was $29,071.68. the Hill Case the tax assessed amounted to $67, In *535 *The correctness of the figures deduced from the application of the statute as made by the counsel for plaintiff in error is contested, but in our view the differences are unimpor tant, unless the state is bound to apply the same rule to the transmission of both classes of estates. Counsel for plaintiffs in error sum up their objections to the statute, based on the federal Constitution, as follows: (1) It taxes the estates of nonresidents more than those of residents, and therefore gives to residents privileges and immunities denied to nonresidents. (2) It provides for a tax which bears unequally, and therefore is not imposed upon a uniform rule, and it therefore denies to nonresidents the equal protection of the laws. (3) It taxes the transfer of a nonresident's property over which the state of New Jersey has no jurisdiction while it expressly omits like property of residents, that is, real estate without the state, and thereby deprives the nonresident of his property without due process of law. [1] Before taking up these objections it is necessary to briefly consider the nature of the tax. In Carr v. Edwards, 84 N. J. Law, 667, 87 Atl. 132, it was held by the New Jersey Court of Errors and Appeals to be a tax upon the special right, the creation of the statute, of an executor or administrator of a nonresident decedent to succeed to property hav ing its situs in New Jersey. Of section 12, as it stood in the original act of 1909, the court said: "That section contains nothing to indicate that other states the privileges and immunities it is not the succession of the New Jersey rep-granted to citizens of the state of New Jerresentative that is meant to be taxed. It is sey, in violation of paragraph 1, § 2, art. 4, of true that the tax is not necessarily 5 per cent. the federal Constitution, which reads, "The upon the whole New Jersey succession. The amount depends on the ratio of the New Jersey Citizens of each state shall be entitled to all property to the entire estate wherever situated. privileges and immunities of citizens in the This, however, merely affords a measure of the several states;" (b) abridges the privileges tax imposed; the tax is still by the very words and immunities of plaintiffs in error, the deof the section imposed upon the property located ceased persons whom they represent, and within this state. The reason for adopting this those taking by will or intestacy under them, provision was to make sure that the rate of taxas citizens of the United States, in contra*536 ation in case of nonresident decedents *should vention of section 1 of the Fourteenth equal but not exceed the rate imposed in the Amendment. case of resident decedents. * "In the case of the estates of nonresident decedents, it is open for the law of the domicile to provide, as testators sometimes do, that such taxes shall be a general charge against the estate. Our Legislature must be assumed to have had in mind its lack of jurisdiction over legacies under a nonresident's will, and in order to protect the New Jersey executor, administrator or trustee who paid the tax, authorized its deduction from 'property for distribution.' This phrase suffices to reach not only a distributive share of a resident's estate in the case of intestacy, but the whole of the New Jersey property of a nonresident when turned over to the executor or administrator at the domicile of the decedent. The provision for both caseslegacies and property for distribution-demonstrates that the Legislature did not mean to provide, as counsel contends, for a legacy duty only." (40 Sup.Ct.) This language correctly characterizes the nature and effect of the tax as imposed under the amendment of 1914; but that act, under which the present cases arise, instead of reaching "the whole of the New Jersey property of a nonresident when turned over to the executor or administrator at the domicile of the decedent," now confines the transfer tax upon the property of nonresident decedents to real estate and tangible personal property within the state, the stock of New Jersey corporations, and the stock of national banks located within the state. The tax is, then, one upon the transfer of property in New Jersey, to be paid upon turning it over to the administrator or executor at the domicile of the decedent. That transfers of this nature are within the taxing power of the state, and that taxes may be assessed upon such rights owing their existence to local laws, and to them alone, is not disput. ed. The right to inherit property, or to receive it under testamentary disposition, has been so frequently held to be the creation of statutory law, that it is quite unnecessary to cite the decisions which have maintained the principle. While this is confessedly true, the assessment of such taxes is, of course, subject to applicable limitations of the state and federal Constitutions; it is with the latter class only that this court has to do. *537 [2-4] (1) Taking up, then, the objections raised under the federal Constitution, it is said that the law (a) denies to citizens of The provision quoted from article 4 of the Constitution was intended to prevent discrimination by the several states against citizens of other states in respect of the fundamental privileges of citizenship. As is said by Judge Cooley in his Constitutional Limitations (7th Ed.) p. 569: "It appears to be conceded that the Constitution secures in each state to the citizens of all other states the right to remove to, and carry on business therein; the right by the usual modes to acquire and hold property, and to protect and defend the same in the law; the right to the usual remedies for the collection of debts and the enforcement of other personal rights; and the right to be exempt, in property and person, from taxes or burdens which the property, or persons, of citizens of the same State are not subject to." Paul v. Virginia, 8 Wall. 168, 180, 19 L. Ed. 357; Ward v. Maryland, 12 Wall. 418, 430, 20 L. Ed. 449. The Fourteenth Amendment recognized a distinction between citizenship of the United *538 States and citizenship *of one of the States. "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." What those privileges and immunities were was under consideration in Slaughterhouse Cases, 16 Wall. 36, 72-79, 21 L. Ed. 394, where it was shown (16 Wall. 77, 78, 21 L Ed. 394) that it was not the purpose of this amendment, by the declaration that no state should make or enforce any law which should abridge the privileges and immunities of citizens of the United States, to transfer from the states to the federal government the security and protection of those civil rights that inhere in state citizenship; and (16 Wall. 79, 21 L. Ed. 394) that the privileges and immunities of citizens of the United States thereby placed beyond abridgment by the states were those which owe their existence to the federal government, its national character, its constitution, or its laws. To the same effect is Duncan v. Missouri, 152 U. S. 377, 382, 14 Sup. Ct. 570, 38 L. Ed. 485. We are unable to discover in the statute before us, which regulates and taxes the right to succeed to property in New Jersey upon the death of a nonresident owner, any infringement of the rights of citizenship ei 540 ther of the states or of the United States, within its *jurisdiction in such a way as to secured by either of the constitutional provisions referred to. We have held that the protection that they afford to rights inherent in citizenship are not infringed by the taxation or transfer of property within the jurisdiction of a state passing by will or intestacy, where the decedent was a nonresident of the taxing state, although the entire succession was taxed in the state where he resided. Blackstone v. Miller, 188 U. S. 189, 207, 23 Sup. Ct. 277, 47 L. Ed. 439. really amount to taxing that which is beyond its authority, that such exercise of power by the state is held void. In cases of that character the attempted taxation must fail. Looney v. Attorney General, 245 U. S. 178, 38 Sup. Ct. 85, 62 L. Ed. 230; International Paper Co. v. Massachusetts, 246 U. S. 135, 38 Sup. Ct. 292, 62 L. Ed. 624, Ann. Cas. 1918C, 617. To say that to apply a different rule regulating succession to resident and nonresident decedents is to levy a tax upon foreign estates, is to distort the statute from its purpose to tax the privilege, which the statute has created, into a property tax, and is unwarranted by any purpose or effect of the enactment, as we view it. [5] Upon this point it is unnecessary to decide whether the case might not be rested on a much narrower ground. The alleged discrimination, here complained of, so far as privileges and immunities of citizenship are concerned, is not strictly applicable to this statute, because the difference in the method *539 [7] (3) It is further contended that the tax bears so unequally upon nonresidents as to deny to them the equal protection of the laws. The subject of taxes of this character was given full consideration by this court in Magoun v. Illinois, 170 U. S. 283, 18 Sup. Ct. 594, 42 L. Ed. 1037, in which case a graded legacy and inheritance tax law of the state of Illinois was sustained. The statute exempted all estates valued at less than $20,000, if passing to near relations, or at less than $500 if passing to those more remote, made the rate of tax increasingly greater as the inheritances increased, and assessed it differently according to the relationship of the beneficiary to the testator or intestate. The statute was attacked as void under the equal protection clause of the Fourteenth Amendment, but was held to be valid. Of this class of taxes the court said (170 U. S. 288, 18 Sup. Ct. 596, 42 L. Ed. 1037): of taxation rests upon residence *and not upon citizenship. La Tourette v. McMaster, 248 U. S. 465, 39 Sup. Ct. 160, 63 L. Ed. 362. [6] (2) It is next contended that the effect of including the property beyond the jurisdiction of the state in measuring the tax amounts to a deprivation of property without due process of law because it in effect taxes property beyond the jurisdiction of the state. It is not to be disputed that, consistently with the federal Constitution, a state may not tax property beyond its territorial jurisdiction; but the subject-matter here regulated is a privilege to succeed to property which is within the jurisdiction of the state. When the state levies taxes within its authority, property not in itself taxable by the state may be used as a measure of the tax imposed. This principle has been frequently declared by decisions of this court. The previous cases were reviewed and the doctrine applied in Kansas City R. R. Co. v. Kansas, 240 U. S. 227, 232, 36 Sup. Ct. 261, 60 L. Ed. 617. After deciding that the privilege tax, there involved, did not impose a burden upon interstate commerce, this court held that it was not in substance and effect a tax upon property beyond the state's jurisdiction, although a large amount of the property, which was referred to as a measure of the assessment, was situated outside of the state. In the present case the state imposes a privilege tax, clearly within its authority, and it has adopted as a measure of that tax the proportion which the specified local property bears to the entire estate of the decedent. That it may do so, within limitations which do not really make the tax one upon property beyond its jurisdiction, the decisions to which we have referred clearly establish. The transfer of certain property within the state is taxed by a rule which considers the entire estate in arriving at the amount of the tax. It is in no just sense a tax upon the foreign property, real or personal. It is only in instances where the state exceeds its authority in imposing a tax upon a subject-matter "They [inheritance taxes] 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 the creature of the law, and not a natural right-a privilege, and therefore the authority which confers it may impose conditions upon it. From 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 *541 this power *by the provisions of the respective state Constitutions requiring uniformity and equality of taxation." And upon examining (170 U. S. 296, 297, 18 Sup. Ct. 594, 42 L. Ed. 1037) the classification upon which the provisions of the Illinois statute were based, the court found there was no denial of the equal protection of the laws either in discriminating between those lineally and those collaterally related to decedent, and those standing as strangers to the blood, or in increasing the proportionate burden of the tax progressively as the amount of the benefit increased. Equal protection of the laws requires equal operation of the laws upon all persons in like circumstances. Under the statute, in the present case, the graduated taxes are lev |