The opinion
HARRISON, J., dissenting.
—I dissent. After the appeal herein had been taken the legislature at its next session passed an act, March 9, 1897 (Stats. 1897, p. 77), amending section 1 of the collateral inheritance act, approved March 23, 1893, by including among those who are exempt from the tax "niece or nephew when a resident of this state,” together with certain classes of corporations, of which the above-named university is one, and provided that the exemption should apply to all cases arising subsequent to the passage of the original act, "except in those cases where the tax has been paid to the treasurer of the proper county.”
1. The appeal herein must be determined in accordance with the law as it now exists, and not as it stood at the time the court made the order appealed from.
(First Nat. Bank v. Henderson,
101 Cal. 307 .)
2. The power of the legislature to determine whether to impose a succession tax or an excise tax upon the right of inheritance, as well as its right to determine upon which heirs or legatees of a decedent such a tax shall be imposed, was held in
Wilmerding’s Estate,
117 Cal. 281 , to be plenary; and any statute enacted for this purpo.se may be amended equally with any other
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statute. The legislature has the same power to add other classes to those who are to be exempted from the tax by an amendment to the original act as it would have had to exempt them from the tax in the original statute. The respondent does not controvert the effect of the amendment upon the estates of persons dying subsequent to its enactment, but insists that the provision in the second section of the act extending the exemption to cases arising prior to its enactment, when the tax has not been already paid, is in violation of the sixteenth subdivision of section 25, article IY, of the constitution of this state, by which the legislature is prohibited from passing local or special laws “releasing or extinguishing, in whole or in part, the indebtedness, liability, or obligation of any corporation or person in this state, or to any municipal corporation therein.”
The right of the legislature to repeal the entire act cannot be-questioned, and upon such repeal without any saving, clause there would be no statute authorizing the collection of any portion of the tax then unpaid, and the tax could not be collected. If the legislature was of the opinion that the tax ought not to have been imposed upon the nephews and nieces, it had the same power to repeal that portion of the statute authorizing the collection from them of the tax then imposed as it had to exempt them from the payment of the tax. Such a statute is neither a local nor a special act. It extends to every part of the state> and applies to every person within the class. A classification of the persons thus to be exempted from the collection of the taxes previously imposed is no more a special act than the same classification of those upon, whom the tax is to be imposed, or who are to be exempt from its payment; and, whether the legislature takes away the power of collecting the tax by direct words to that effect, or by .a declaration that the persons in the class shall be exempt from its payment, is immaterial. In
Montague v. State,
54 Md. 481 , the legislature of Maryland had, by an amendment to the statute, included the “husband” in the exempted classes, and provided that the exemption should apply in all cases where the tax had not been actually paid. In passing upon the question here presented, the court reached the same conclusion as above, saying: “If the legislature is satisfied that a given tax is no longer necessary, that it is unjust, that a change of cir
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cumstances requires its repeal, that public policy demands that the repeal should he prompt, should give instant relief, and should therefore extend to all who had not yet actually paid, the legislature has in its discretion the constitutional' right so to enact, without being at the same time compelled to embarrass the treasury hy a sweeping restitution to all who had paid the tax from the time of its imposition. Under some circumstances, such a retrospective exemption might be highly expedient, and under others not. The question is one of policy for the legislature, and not one of law for the courts.” It was further objected in that case, as hy the respondent here, that the tax claimed from the appellant had become a specific, ascertained debt due from him to the state, and that the act exempting the husband from its payment was void under a provision of the constitution of that state similar to the above subdivision of section 25, forbidding the general assembly from passing local or special laws releasing persons from their debts or obligations to the state; but it was held that this provision of the constitution did not apply to a public general law releasing persons from their debts or obligations to the state, but that the inhibition was directed to “local” or “special” laws, and that the law under consideration was neither local or special.
McFarland, J., being disqualified, did not participate in the decision.