*GEORGE O. CAMPBELL, Benjamin F.

Campbell, Corlista E. Jess, and Alonzo E. Campbell, Heirs-at-Law of Cornelia E. Campbell, Deceased, Plffs. in Err., v.

STATE OF CALIFORNIA.

(See S. C. Reporter’s ed. 87-95.)

X. Error to state conrt — questions re- viewable — statutory construction. —

The Federal Supreme Court cannot, inde¬ pendently of the Federal questions involved, reverse a judgment of the highest court of a state on the ground that a state statute en¬ acted after the judgment under review was rendered had the effect of depriving the state of the power to enforce such judgment.

tion-moot case.— The enactment by a state of a new inheritance tax law after a decision of the highest court of the state sus¬ taining the previous legislation on that sub¬ ject as against the contention that it denied the equal protection of the laws guaranteed by U. S. Const., 14th Amend., does not con¬ vert such Federal question into a moot ques¬ tion, so as to preclude a review in the Su-

Notb.— As to tames on succession and col¬ lateral inheritances — see notes to Re Howe, 2 L.R.A. 825 ; Wallace v. Myers, 4 L.R.A. 171 ; Com. v. Ferguson, 10 L.R.A. 240 ; Re Romaine, 12 L.R.A. 401 ; and Magoun v. Illinois Trust' & Sav. Bank, 42 L. ed. U. S. 1037.

Error to state courts in cases presenting merely abstract or moot questions.

The question relied upon to sustain a writ of error from the Supreme Court of the United States to a state court must not be a merely abstract or moot one. Kimball v. Kimball, 174 U. S. 158, 43 L. ed. 932, 19 Sup. Ct. Rep. 639 ; Little v. Bowers, 134 U. S. 547, 33 L. ed. 1016, 10 Sup. Ct. Rep. 620.

Thus, where the question involved was the impairment of the obligation of a contract by certain assessments for taxation, and it appeared that the taxes had been paid under a compromise agreement, the Supreme Court of the United States refused to entertain juris¬ diction. Little v. Bowers, supra.

Compliance by a foreign corporation with a judgment of the highest state court ousting it from doing business in the state until it should satisfy the requirements which the state laws exact of foreign corporations precludes any review of such judgment in the Federal Supreme Court, although, in another similar suit pending in the state courts, such judg¬ ment is pleaded as decisive of all or some of the issues. American Book Co. v. Kansas,

200 U. S.

Campbell v. Califobnia.

preme Court of the United States, unless it is obvious that such new legislation relieved the plaintiffs in error from their obligations under tbe earlier law.

tion of tlie laws — validity of state inheritance tax. — Brothers and sisters of a decedent may be subjected to the burden of the inheritance tax imposed by Cal. Stat. 1803, p. 193, as amended by Cal. Stat. 1890, p. 10, without denying them the equal pro¬ tection of the laws guaranteed by U. S. Const., 14th Amend., although such legisla¬ tion does not impose any tax on such stran¬ gers to the blood as the wife or widow of a son or the husband of a daughter of the de¬ cedent.

[No. 70.]

Argued November 27, 28, 1905. Decided January 2, 1906.

IN ERROR to the Supreme Court of the State of California to review a decree affirming an order of the Superior Court of the City and County of San Francisco, in that state, for the payment of an inherit¬ ance tax by brothers and sisters of a de¬ cedent. Affirmed.

See same case below, 143 Cal. 627, 77 Pac. 674.

The facts are stated in the opinion.

Mr. Charles H. Garoutte argued the cause, and, with Messrs. William N. Good¬ win and Curtis E. Lindley, filed a brief for plaintiffs in error:

The basis of classification is blood rela¬ tionship.

Don Passos, Inheritance Tax Law, p. 5; Minot v. Winthrop, 162 Mass. 113, 26 L.R.A, 259, 38 N. E. 512.

193 U. S. 49, 48 U. ed. 613, 24 Sup. Ct. Rep.

The assertion that a state statute violates the Federal Constitution presents but a moot question, which confers no jurisdiction on the Supreme Court of the United States to review a judgment of a state court, where, in the case presented, the statute is not so applied as to deny a right claimed under such Consti¬ tution. Castillo v. McConnico, 108 U. S. 674, 42 L. ed. 622, 18 Sup. Ct. Rep. 229.

A decision by a state court, which denied the validity of an order for the issue of bonds by an irrigation district, rendered on a peti¬ tion in a proceeding substantially ex parte be¬ fore issue of the bonds, although a resident of the district appeared in answer and claimed a right under the Federal Constitution, will not sustain a writ of error from the United States Supreme Court, since the adjudication is simply of the right to make a contract, which is a purely moot question, unless the board shall see fit to exercise such right, the pro¬ ceeding being substantially but one to secure evidence. Tregea v. Modesto Irrig. District, 164 U. S. 179, 41 L. ed. 395, 17 Sup. Ct. Rep. 52.

A decision by a state court, which denied the petition of a woman, claiming to be the decedent's widow, for revocation of letters of administration to others and for her own appointment as administratrix on the ground that a divorce in another state from her former husband was void, involves no Federal ques¬ tion which will warrant a review in the Supreme court of the United States, wheie the possibility of issuing any letters of ad¬ ministration has been superseded by the pro¬ bate of a subsequently discovered will. Kim¬ ball v. Kimball, 174 U. S. 158, 43 L. ed. 932, 19 Sup. Ct. Rep. 639.

A writ of error to review the judgment of a state court in an action for usurpation of pub¬ lic office, instituted on the relation of persons superseded therein by a legislative act chal¬ lenged as unconstitutional, will be dismissed where the terms of office of all the parties to the suit, both relators and defendants, have ex¬ pired. Tennessee v. Condon, 189 U. S. 64, 47 L. ed. 709, 23 Sup. Ct. Rep. 579.

A writ of error to review a judgment of a state court refusing to cancel the revocation of a permit to do business in the state, granted

200 U. S.

renewable annually to a foreign insurance com¬ pany, must be dismissed where the permit itself has become of no effect by the lapse of one year since it was granted. Security Mut. L. Ins. Co. v. Prewitt, 202 U. S. 246, post, — , 26 Sup. Ct. Rep. 619.

And see note to Apex Transp. Co. v. Gar- bade, 62 L.R.A. 513, on What adjudications of state courts can be brought up for review in the Supreme Court of the United States by writ of error to those courts.

But the fact that there are no resident mort¬ gagees in a particular case does not make the question of discrimination between nonresi¬ dent and resident mortgagees by a state statute a merely abstract or moot question, so as to pre¬ clude a decision against the validity of the statute on writ of error to a state court, if such statute makes a discrimination against nonresident mortgagees with respect to sharing in the distribution of the assets of an insolvent foreign corporation. Sully v. American Nat. Bank, 178 U. S. 289, 44 L. ed. 1072, 20 Sup. Ct. Rep. 935.

In considering whether a state statute is re¬ pugnant to congressional legislation, the Su¬ preme Court of the United States, on writ of error to a state court, can only consider- the state statute in connection with the case before it. It cannot inquire whether, in another case arising upon a different state of facts, the statute may not produce results in conflict with the act of Congress, which the court will be bound to revise and correct. Austin v. Boston, 7 Wall. 694, 19 L. ed. 224.

And see note to State ex rel. Hill v. Dockery, 63 L.R.A. 571, on What questions the Federal Supreme Court will consider in reviewing the judgments of state courts.

Other notes discussing writs of error to state courts are : How and when questions must be raised and decided in a state court in order to make a case for a writ of error from the Supreme Court of the United States, Mutual L. Ins. Co. v. McGrew, 63 L.R.A. 33 : What the record must show respecting the Fed¬ eral question and its decision. — Hooker v. Los Angeles, 63 L.R.A. 471 ; What is the record for this purpose, — Home for Incurables v. New York, 63 L.R.A. 329 ; The practice and pro¬ cedure governing the transfer of causes to the Federal Supreme Court on writ of error or ap¬ peal, — Wedding v. Meyler, 66 L.R.A. 833.

Supreme Court of the United States.

Oct. Term,

It is the presence and recognition of this relationship with its reciprocal demands that obviates the necessity in the legisla¬ ture of making one great clas9 of all peo¬ ple. And it is for this reason that all per¬ sons do not stand alike before the law, and, therefore, constitutional discriminations may be made by dividing them into classes.

Black v. State, 113 Wis. 205, 90 Am. St. Rep. 853, 89 N. W. 522'; Magoun v. Illinois Trust d Sav. Bank, 170 U. S. 283-296, 42 L. ed. 1037-1042, 18 Sup. Ct. Rep. 594.

In many instances the courts may not be able judicially to notice or declare that the classification made is purely arbitrary, and may, therefore, regard the question as a proper one for legislative consideration and determination, and, hence, may not inter¬ pose to declare that the legislative discretion has been abused. If, however, the legisla¬ ture has singled out any class of persons or corporations, and imposed upon them re¬ strictions or penalties from which others are exempt, and there is no reason why the for¬ mer should be subject to the restriction and the latter not, the statute must be pro¬ nounced unconstitutional.

Gulf, C. d S. F. R. Co. v. Ellis, 165 U. S. 150, 41 L. ed. 666, 17 Sup. Ct. Rep. 255; Re Eight Hour Law, 21 Colo. 29, 39 Pac. 328; Braceville Coal Co. v. People, 147 Ill. 66, 22 L.R.A. 340, 37 Am. St. Rep. 206, 35 N. E. 62; Chicago, St. L. d N. O. R. Co. v. Moss, 60 Miss. 641; State v. Loomis, 115 Mo. 307, 21 L.R.A. 789, 22 S. W. 350; Magoun v. Illinois Trust d Sav. Bank, supra.

This court always applies the rule of rea¬ sonable ground.

Gulf, C. d. S. F. R. Co. v. Ellis, 165 U. S. 150-157, 41 L. ed. 666-669, 17 Sup. Ct. Rep. 225; Connolly v. Union Sewer Piper Co. 184 U. S. 540-563, 46 L. ed. 679-691, 22 Sup. Ct. Rep. 431; Cotting v. Kansas City Stock Yards Co. ( Cotting v. Godard) 183' U. S. 79, 46 L. ed. 92, 22 Sup. Ct. Rep. 30; Amer¬ ican Sugar Ref. Co. v. Louisiana, 179 U. S. 89, 92-95, 45 L. ed. 102-105, 21 Sup. Ct. Rep. 43; Atchison, T. d S. F. R. Co. v. Matthews, 174 U. S. 96-101, 43 L. ed. 909- 911,19 Sup. Ct. Rep. 609 ; Orient Ins. Co. v. Daggs, 172 U. S. 557-562, 43 L. ed. 552-554, 19 Sup. Ct. Rep. 281; Missouri, K & T. R. Co. v. May, 194 U. S. 267, 48 L. ed. 971, 24 Sup. Ct. Rep. 638.

Especially is this a case where presump¬ tions in favor of the validity of legislative action will not be indulged in to support the constitutionality of the act here in- volved. These presumptions may be in¬ voked to support the constitutionality of some state legislation, but that principle of law cannot apply here. Of course, such a presumption cannot be invoked in all cases, 384

for, if it could, there would be no constitu¬ tional limitation upon legislatures in mak¬ ing classifications.

Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 150-154, 41 L. ed. 666-668, 17 Sup. Ct. Rep. 255; Magoun v. Illinois Trust & Sav. Bank, 170 U. S. 283, 42 L. ed. 1037, 18 Sup. Ct. Rep. 594.

No legislature, by adroit legislative clas¬ sifications, should be allowed to classify persons out of the equal protection of the law. It is the highest duty of this court to condemn all attempts of that kind.

Smyth v. Ames, 169 U. S. 466-527, 42 L. ed. 819-842, 18 Sup. Ct. Rep. 418'; Yiclc Wo v. Hopkins, 118 U. S. 366—369, 30 L. ed. 225, 226, 6 Sup. Ct. Rep. 1064.

The principle of equality in placing the burdens of taxation upon the people is just as applicable here as if this were a law creating a direct property tax.

Railroad Tax Cases, 8 Sajvy. 238, 13 Fed.

Clear and hostile discriminations against particular persons and classes, especially such as are of an unusual character, un¬ known to the practice of our governments, might be obnoxious to the constitutional prohibition.

Bell’s Gap R. Co. v. Pennsylvania, 134 U. S. 232-237, 33 L. ed. 892-895, 10 Sup. Ct Rep. 33.

Inheritance laws must not discriminate between persons.

Magoun v* Illinois Trust & Sav. Bank, 170 U. S. 292, 42 L. ed. 1042, 18 Sup. Ct. Rep. 594.

Tested by the law of the country, the act of 1893, as amended in 1S99, is a taxation act.

United States v. Perkins, 163 U. S. 625, 41 L. ed. 287, 16 Sup. Ct. Rep. 1073; Ma¬ goun v. Illinois Trust d Sav. Bank, 170 U. S. 301, 42 L. ed. 1045, 18 Sup. Ct. Rep. 594; Plummer v. Coler, 178 U. S. 115, 44 L. ed. 998, 20 Sup. Ct. Rep. 829 ; Dos Passos, In¬ heritance Tax Law, pp. 5, 37; Re Wil- merding, 117 Cal. 281, 49 Pac. 181; Re Campbell, 143 Cal. 627, 77 Pac. 674; Eyre v. Jacob, 14 Gratt. 427, 73 Am. Dec. 367; State v. Hamlin, 86 Me. 495, 25 L.R.A. .632, 41 Am. St. Rep. 569, 30 Atl. 76.

There is no vested right in the state to this tax at the death of decedent.

Dos Passos, Inheritance Tax Law, p. 423; Blackwell, Tax Titles, § 1047 ; 1 Desty, Taxn. p. 9; Flanigan v. Sierra County, 196 U. S. 553, 49 L. ed. 597, 25 Sup. Ct. Rep. 314; Re McPherson, 104 N. Y. 321, 58 Am. Rep. 502, 10 N. E. 685; Re Westurn, 152 N. Y. 99, 46 N. E. 315; Re Arnett, 49 Hun, 599, 2 N. Y. Supp. 428; Pacific Mail S. S. Co. v. Joliffe, 2 Wall. 450, 17 L. ed. 805.

The remedy provided by the act of 1893

200 U. S.

Campbell v. California.

for the collection of the tax is repealed, and the tax cannot be collected.

Re Stanford, 126 Cal. 112, 45 L.R.A. 788, 58 Pac. 462; Rapa State Hospital v. Flaher¬ ty, 134 Cal. 317, 66 Pac. 322; Sonora v. Cur¬ tin, 137 Cal. 589, 70 Pac. 674; Gorley v. Sewell, TJ Ind. 318; Hampton v. Com. 19 Pa. 329 ; Santa Monica v. Guidinger, 137 Cal. 659, 70 Pac. 732.

Mr. U. S. Webb argued the cause, and, with Messrs. E. B. Power, Lewis F. Bying- ton, and I. Harris, filed a brief for defend¬ ant in error:

The rule of constitutional classification adopted by the supreme court of the state of California and applied to this case is the correct rule, and is supported by the decisions of this court.

Re Campbell, 143 Cal. 623, 77 Pac. 674; Deyoe v. Superior Court, 140 Cal. 470, 98 Am. St. Rep. 73, 74 Pac. 2S; Magoun v. Illinois Trust d Sav. Bank, 170 U. S. 283, 42 L. ed. 1037, 18 Sup. Ct. Rep. 594; Gulf, C. d. S. F. R. Co. v. Ellis, 105 U. S. 150, 41 L. ed. 666, 17 Sup. Ct. Rep. 255 ; Orient Ins. Co. v. Daggs, 172 U. S. 557, 43 L. ed. 552, 19 Sup. Ct. Rep. 281; People v. Central P. R. Co. 105 Cal. 576, 38 Pac. 905; Ex parte Jentzsch, 112 Cal. 469, 32 L.R.A. 664, 44 Pac. 803; Re Wilmcrding, 117 Cal. 281, 49 Pac. 181.

No right guaranteed by the 14th Amend¬ ment is invaded by the act in question.

Magoun v. Illinois Trust d Sav. Banlc, Gulf, C. d S. F. R. Co. v. Ellis, and Orient Ins. Co. v. Daggs, supra.

The following cases uphold as constitu¬ tional inheritance tax laws making dis¬ criminations between relatives:

United States v. Perkins, 163 U. S. 625, 41 L. ed. 287, 16 Sup. Ct. Rep. 1073; State v. Dalrymple, 70 Md. 294, 3 L.R.A. 372, 17 Atl. 82; Re Merriam, 141 N. Y. 479, 36 N. E. 505; State v. Hamlin, 86 Me. 495, 25 L.R.A. 632, 41 Am. St. Rep. 569, 30 Atl. 76; Slate v. Alston, 94 Tenn. 674, 28 L.R.A. 178 30 S. W. 750; Minot v. Winthrop, 162 Mass. 113, 26 L.R.A. 259, 38 N. E. 512; Gelsthorpe v. Furnell ( State ex rel. Gels- thorpe v. Furnell) 20 Mont. 299, 39 L.R.A. 170, 51 Pac. 267 ; Eyre v. Jacob, 14 Gratt. 428’ 73 Am. Dec. 367; Re McPherson, 104 N Y 306, 58 Am. Rep. 502, 10 N. E. 685; Re Sherwell, 125 N. Y. 376, 26 N. E. 464; Kocliersperger v. Drake, 167 Ill. 122, 41 L.R.A. 446, 47 N. E. 321 ; Billings v. People, 189 HI. 472, 59 L.R.A. SOI, 59 N. E. 798. See also Scholey v. Rew, 23 Wall. 331, 23 L. ed. 99 ; High v. Coyne, 93 Fed. 451.

Messrs. Leivis F. Byington and I. Harms filed a separate brief for defendant in error:

The act of 1905, even if it repeals the act of 1893 and the amendments thereto, does not affect the right of the state to its 5

200 U. S.

per cent of the estates of persons who died prior to the 1st of July, 1905.

Prevost v. Greneaux, 19 How. 1, 15 L. ed. 572; Amat’s Succession, 18 La. Ann. 405; Rixner’s Succession, 48 La. Ann. 563, 32 L.R.A. 177, 19 So. 597; Rabasse’s Succession, 49 La. Ann. 1413, 22 So. 767.

The same principle which makes the prop¬ erty of a decedent vest in his heir imme¬ diately at death vests the state with a cer¬ tain percentage of it at the same time.

Billings v. Hall, 7 Cal. 1; Re Stanford, 126 Cal. 112, 45 L.R.A. 788, 58 Pac. 462.

Succession taxes are not taxes in the ordi¬ nary sense of the word, but a modification of the succession and inheritance laws de¬ creeing that only a certain percentage of a man’s property shall go to his heirs, and the rest shall remain the property of tho sovereign state.

Minot v. Winthrop, 162 Mass, 113, 26 L.R.A. 259, 38 N. E. 512; State v. Ferris, 9 Ohio C. C. 298; State v. Hamlin, 86 Me. 495, 25 L.R.A. 632, 41 Am. St. Rep. 569, 30 Atl. 76; Re Collateral Inheritance Tax, 88 Me. 587, 34 Atl. 530; State v. Dalrymple, 70 Md. 294, 3 L.R.A. 372, 17 Atl. 82; United States v. Perlcins, 163 U. S. 625, 41 L. ed. 287, 16 Sup. Ct. Rep. 1073.

If the act of 1905 can be held to relieve the estates of persons who died prior to the 1st of July, 1905, it is to that extent unconstitutional.

Re Stanford (Cal.) 54 Pac. 259; Re Moore, 90' Hun, 162, 35 N. Y. Supp. 782.

The act of 1905, in spite of the formal re¬ pealing clause, must be held to be a con¬ tinuation of the act of 1893 and its amend¬ ments, in so far as it affects the estates of persons who died prior to the 1st of July,

26 Am. & Eng. Enc. Law, 2d ed. p. 758 ; Central P. R. Co. v. Shackelford, 63 Cal. 261 ; Pacific Mail S. S. Co.x. Joliffe,2 Wall. 450, 17 L. ed. 805, 6 Rose’s Notes, p. 433; Mc- Minn v. Bliss, 31 Cal. 127; Re Davis, 149 N. Y. 545, 44 N. E. 185; Re Sloane, 154 N. Y. 113, 47 N. E. 978; Provident Hospital d Training School Asso. v. People, 198 Ill. 495, 64 N. E. 1031; Re Scrimgeour, 80 App. Div. 388, 80 N. Y. Supp. 636; Collins v Blake, 79 Me. 218, 9 Atl. 358; Re Prime, 136 N. Y. 347, 18 L.R.A. 713, 32 N. E. 1091.

The tax can be collected either under the old statute or the new, or under the gen¬ eral powers of the superior court in pro¬ bate matters ; or it may be collected by the ordinary civil action against the estate.

23 Am. & Eng. Enc. Law, 1st ed. p. 504; 27 Am. & Eng. Enc. Law, 2d ed. p. 342; Re Vanderbilt, 2 Connoly, 319, 10 N. Y. Supp. 239 ; State v. Poulterer, 16 Cal. 531 ; Bergin v. Haight, 99 Cal. 56, 33 Pac. 760; Re Burton, 93 Cal. 463, 29 Pac. 36; Pennie

385

90-02

Supreme Court of the United States.

Oct. Term,

v. Roach, 94 Cal. 521, 29 Pac. 956, 30 Pac. 106; Simons v. Bedell, 122 Cal. 347, 68 Am. St. Rep. 35, 55 Pac. 3.

*Mr. Justice White delivered the opinion of the court:

In 1893 a law was enacted in California, imposing a charge on collateral inheritances and on bequests and devises. Cal. Stat. 1893, p. 193. The burdens which the law im¬ posed were not laid upon inheritances, be¬ quests, or devises in favor of the father, mother, husband, wife, children, brother, or sister of a decedent, or wife or widow of a son, or the husband of the daughter of the decedent, adopted children, and certain pub¬ lic and charitable corporations. In the year 1899 the law of 1893 was amended.. The amendment caused the charge imposed by the prior act to become applicable in the case of brothers and sisters of a decedent. This resulted because the amendment omitted brothers and sisters from the enumeration made in the act of 1893 of persons to whom the act was not to apply. Cal. Stat. 1899,

p. 10.

In December, 1900, Cornelia E. Campbell died intestate in the city of San Francisco, and her estate was administered upon by the appropriate court. In December, 1901, a final decree was entered, apportioning the estate remaining, after the payment of cer¬ tain specified amounts, among three brothers and a sister, who are of the plaintiffs in er¬ ror in this court. One of the sums directed by the decree to be paid before distribution was a collateral inheritance charge of $488.70, under the act of 1893, as amended in 1899.

The brothers and sister appealed to the supreme court of California from that por¬ tion of the decree directing the payment of the charge just mentioned. The validity of the law imposing the burden was assailed upon various grounds of a local nature, and upon the Federal ground that the amenda¬ tory act of 1899, in so far as it purported to impose a charge on inheritances, bequests, or devises to brothers and sisters, denied the equal protection of the laws, and was hence repugnant to the 14th Amendment to the Constitution of the United States. The supreme court of California affirmed the decree. In doing so it held that the conten¬ tions of a local nature were without merit,

*and the act of 1893, as amended by the act of 1899, was not in conflict with the 14th Amendment. 143 Cal. 627, 77 Pac. 674.

With the questions of a local nature de¬ cided by the state court we are not con¬ cerned, and shall therefore confine our atten¬ tion to the Federal question, that is, the al¬ leged repugnancy to the 14th Amendment, 386

imposing the burden in question on brothers and sisters.

The asserted repugnancy of the statute to the Constitution of the United States, as elaborately argued at bar, rests upon the proposition that the statute denied to broth¬ ers and sisters of a decedent the equal pro¬ tection of the laws, because the statute em¬ braced an inheritance, bequest, or devise in favor of a brother or sister, and did not in¬ clude bequests or devises in favor of a wife or widow of a son or the husband of a daughter of the decedent.

Before coming to consider this subject we must notice a wholly independent question, which the plaintiffs in error assert renders a reversal necessary, irrespective of the merits of the contention based upon the Federal question.

In March, 1905, since the record on this writ of error was filed in this court, the state of California enacted a new inheritance tax law. Cal. Stat. 1905, p. 341. This act dif¬ fers from the act of 1893, as amended in 1899, in many particulars. It includes within the classes subjected to the burdens imposed persons not embraced in the act of 1893 as amended, and whilst it does not ex¬ cept from its operation persons embraced in the prior act as amended, creates as to some of such persons a different rate, and carves out exemptions as to designated amounts of property, not found in the earlier act. Be¬ sides, by the act, brothers and sisters or a descendant of such brothers and sisters, and the wife or widow of a son or a husband of a daughter of a decedent, are made subject to a like charge, less, however, in rate than the one theretofore imposed upon a brother or sister. The act of 1905, as declared in its title, and as manifested by its provisions, was intended to cover generally the sub¬ ject of inheritance taxes, and by necessary effect operated to amend and *re-enact the

prior laws on the subject. In the body of the act was contained a section (27), ex¬ pressly repealing the act of 1893 and the amendments thereto, without embodying a clause saving the right of the state in re¬ spect to the charges which had accrued to the state under the prior acts.

The proposition is that the act of 1965 re¬ lieved the plaintiffs in error from the duty to pay resulting from the prior laws, even if those laws were not repugnant to the 14th Amendment, and, therefore, the contention is that it becomes our duty to so decide, and hence to reverse the judgment without pass¬ ing upon the Federal question. The plain¬ tiffs in error do not suggest that the writ of error be dismissed because, by the California statute, upon which they rely, the constitu¬ tional question has become merely a moot one, but their contention is that we should

200 U. S.

Campbell v. California.

92-94

maintain jurisdiction and reverse upon the ground previously stated. We cannot as¬ sent to the proposition. The statute upon which it is based was enacted subsequently to the decision of the supreme court of Cali¬ fornia, and if that statute had the effect, as asserted, of depriving the state of power to enforce the judgment below rendered, the right to claim relief, based upon the action of the state, taken since the supreme court of California decided the case, will, we as¬ sume, be open to investigation in the state courts,, if in deciding the Federal question adversely to the plaintiffs in error, we do not conclude the question referred to. Under these conditions we think it is our duty to decide the' Federal question upon which the writ of error was prosecuted, and leave open the purely local question, which has arisen since the decision by the lower court.

Of course, of our own motion we must de¬ termine whether the enactment of the sub¬ sequent statute so obviously had the effect of relieving the plaintiffs in error from the burden imposed by the judgment below as to cause the Federal question to become merely a moot one. In view of the general and continuing nature of the legislation con¬ tained in the statute of 1905 (Bear Lake & River Waterworks & Irrig. Co. v. Garland, 104 U. S. 1, 11, 41 L. ed. 327, 331, 17 Sup. Ct. Rep. 7; Pacific Mail S. S. Co. v. Joliffe, 2 Wall. 450, 17 L. ed. 805), we are clearly of

the opinion that it cannot *be said that this case has become a moot one. Especially is this true when the ruling of the supreme court of California in Re Stanford, 126 Cal. 112, 45 L. R. A. 788, 58 Pac. 402, is consid¬ ered. In that case, in 1897, wThile an appeal w’as pending in the supreme court of Cali¬ fornia from a decree directing the payment by the estate of Stanford of a charge or charges imposed by authority of the act of 1893, the legislature of California amended the act, and established certain exemptions, which it declared should apply to all proper¬ ty, which had passed by will, succession, or transfer after the approval of the act of 1893, except in those cases where the tax had been paid to the treasurer of the proper county. As to enforce the proper amenda¬ tory act would have relieved the estate of Stanford from the burdens of which com¬ plaint was made, the question presented to the supreme court of California was wheth¬ er, if the burdens were authorized by the act of 1893, it was the duty of the court to apply the provisions of the amendatory act, and reverse the judgment pending before it, because the right to enforce the impositions had terminated by the effect of the amenda¬ tory act. After deciding that the act of 1893 authorized the burdens complained of, the court, in considering the terms of that 200 U. S.

statute, the nature and character of an in¬ heritance tax, and the power of the state over the disposition of property in case of death, held that it was its duty to affirm the decree because of the vested right exist¬ ing in the state under the act of 1893, and because the act of 1897, in attempting to ab¬ rogate such vested right, was repugnant to specified provisions of the Constitution of California. Putting aside, then, all ques¬ tion as to the operation of the statute of 1905, and reserving from any decree which we may render all rights, if any, in favor of the plaintiffs in error which may have arisen from the passage of that statute, we are brought to a consideration of the merits of the Federal question.

The contention is that the assailed law of California was repugnant to the 14th Amendment because it subjected to the bur¬ dens of an inheritance tax or charge broth¬ ers and sisters of a decedent, and did not subject to any burden such *strangers to the

blood as the wife or widow of a son or the husband of a daughter of a decedent. We do not stop to refer in detail to the many forms of argument by which the contention is sought to be sustained, but content our¬ selves with stating that, whatever be the form in which the propositions relied on are advanced, they all reduce themselves to and must depend upon the soundness of the con¬ tention that the 14th Amendment compels the states, in levying inheritance taxes, and, a fortiori, in regulating inheritances, to con¬ form to blood relationship. That is to say, in their last analysis all the arguments de¬ pend upon the proposition that the 14th Amendment has taken away from the states their power to regulate the passage of prop¬ erty by death or the burdens which may be imposed resulting therefrom, because that amendment confines the states absolutely, both as to the passage of such property and as to the burdens imposed thereon, to the rule of blood relationship. To state the proposition is to answer it. Its unsound¬ ness is demonstrated by previous decisions of this court. Magoun v. Illinois Trust &

Sav. Bank, 170 U. S. 283, 42 L. ed. 1037, 18 Sup. Ct. Rep. 594; Orient Ins. Co. v. Daggs,

172 U. S. 557, 562, 43 L. ed. 552, 554, 19 Sup.

Ct. Rep. 281. It is true that in the first of the cited cases it was expressly declared or impliedly recognized that in the exercise by a state of its undoubted power to regulate the burdens which might be imposed on the passage of property by death, a case might be conceived of where a burden would be so arbitrary as to amount to a denial of the equal protection of the laws. But this sug¬ gestion did not imply that the effect of

387

•4-96

Oct. Tebm,

SUTBEME COUET OF THE UNITED STATES.

the 14th Amendment was to control the states in the exercise of their plenary au¬ thority to regulate inheritances and to de¬ termine the persons or objects upon whicli an inheritance burden should be imposed. In this case there can be no doubt, if the right of a state be conceded to select the per¬ sons who may inherit, or upon whom the burden resulting from an inheritance may be imposed, the complaint against the stat¬ ute is entirely without merit. The whole case, therefore, must rest upon the assump¬ tion that because the state of California has not followed the rule of blood relationship, ]but, as to particular classes, has applied the rule of affinity by marriage, therefore the constitutional provision guaranteeing the equal protection of +he laws was violated. But, unless the effect of the 14th Amend¬ ment was inexorably to limit the states in enacting inheritance laws to the rule of blood relationship, such a regulation plain¬ ly involved the exercise of legislative dis¬ cretion and judgment, with which the 14th Amendment did not interfere. Such a regu¬ lation cannot in reason be said to be an exercise of merely arbitrary power. To il¬ lustrate. It assuredly would not be an arbi¬ trary exercise of power for a state to put in one class, for the purpose of inheritance or the burdening of the privilege to inherit, all blood relatives to a designated degree, ex¬ cluding brothers and sisters, and to place all other and more remote blood relatives, including brothers and sisters, in a second class, along with strangers to the blood. This being true it cannot, without causing the equality clause of the 14tli Amendment to destroy the powers of the states on a sub¬ ject of a purely local character, be held that a classification which takes near relatives by marriage and places them in a class with lin¬ eal relatives is so arbitrary as to transcend the limits of governmental power. If this were not true, state legislation preferring a wife in the distribution of the estate of her husband to a brother or sister of the husband would be void as repugnant to the 14th Amendment. So also would be the provi¬ sion in the California statute we are con¬ sidering, preferring an adopted child of a de¬ cedent to a brother or sister. With the mo¬ tives of public policy which may induce a state to prefer near relatives by affinity to collateral relatives, we are not concerned, since the 14th Amendment does not deprive a state of the power to regulate and burden the right to inherit, but at the most can only be held to restrain such an exprcise of power as would exclude' the conception of judgment and discretion, and which would be so ob¬ viously arbitrary and unreasonable as to be beyond the pale of governmental authority.

Affirmed.

388

*H. C. HERRICK, A. V. Noyes, Charles La-[9tt] brosse, Leon Larrieu, W. S. Gray, and Peter Crane, Appts.,

ti. «

BOQUILLAS LAND & CATTLE COMPANY.

(See S. C. Reporter’s ed. 96-102.)

coart — questions reviewable — suffi¬

ciency of evidence. — The sufficiency of the evidence to support the findings of fact is not open to consideration on appeal from a territorial supreme court to the Supreme Court of the United States, in the absence of any exception duly taken to rulings on the admission or rejection of evidence.

effect of recital in patent. — A recital in a patent from the United States, confirm¬ ing a Mexican land grant to the original grantees, “their heirs, successors in interest, and assigns,” that two persons named there¬ in had acquired an undivided interest in the land, which patent was basfed on a decree to that effect of the court of private land claims, established by the act of March 3, 1891 (26 Stat. at L. 854, chap. 539, U. S. Comp. Scat. 1901, p. 765), is sufficient to establish a record title in the persons so named as against others holding merely by adverse possession, although, under §§ 8, 13, of that act, the confirmation of the grant by that court only quitclaims the title of the United States, and saves the rights of third parties.

effect.— The limitation of ten years, pre¬ scribed by Ariz. Rev. Stat. 1901, jf 2938, for actions to recover lands adversely held, has no application to such an action brought between the date when such statute was en¬ acted and the date when, by its terms, the revision of the statutes was to take effect.

[No. 105.]

Submitted December 7, 1905. Decided Jan¬ uary 2, 1906.

APPEAL from the Supreme Court of the Territory of Arizona to review a judg¬ ment which affirmed a judgment of the Dis¬ trict Court in and for Cochise County, in that territory, in favor of plaintiff in an action of ejectment. Affirmed.

See same case below (Ariz.), 71 Pac. 924; on rehearing, 76 Pac. 612.

The facts are stated in the opinion.

Mr. Ben Goodrich submitted the cause for appellants.

Mr. Francis J. Heney submitted the cause for appellee.

Mr. Justice White delivered the opinion of the court:

This is an action of ejectment, commenced

Note. — As to review by the United States Supreme Court of territorial decisions — see note to Miners’ Bank v. Iowa, 13 L. ed. U. S.

200 U. S.

Hebbick v. Boquillas L. & C. Co.

96-99

in August, 1901, by the appellee, to recover

[97] a tract of land containing 17,355.86 *acres, and damages for the alleged unlawful with¬ holding, of possession. It was alleged that the plaintiff was the owner and entitled to the possession of the described land, and that title had been in it or in its grantors and predecessors in interest ever since Jan¬ uary 1, 1875; and the defendants — thirty in number — were alleged to have unlawfully withheld possession of the premises in dis¬ pute from about November 28, 1900. Some of the defendants filed disclaimers or failed to answer. The appellants and others joint¬ ly answered, relying solely on rights alleged to result from an asserted adverse possession by each of them of a portion of the demanded premises for more than twenty years prior to the bringing of the action. The case was tried to the court without a jury. The court made findings of fact and stated its conclu¬ sions of law thereon. Thereupon judgment was entered in favor of the plaintiff. On appeal, the supreme court of the territory affirmed the judgment; and the opinions de¬ livered on the original hearing and on a re¬ hearing are reported in 71 Pac. 924, and 76 Pac. 612. The supreme court adopted the findings of fact made by the trial court. The findings thus adopted as to the title and right of possession of the plaintiff were as follows :

“That on the 8th day of May, a. d. 1833, the Mexican government, by good and suf¬ ficient grant, conveyed to plaintiff’s grant¬ ors and predecessors in interest the lands and premises herein described, being the lands and premises in controversy.

“Thnt on the 14th day of December, in the year of our Lord one thousand and nine hundred, the government of the United States, by its letters patent, recognized and confirmed the validity of the said grant of lands in plaintiff’s complaint, and herein¬ after particularly described, to Ygnacio Elias G-onzales and Nepumoceno Felix, and to their heirs, successors in interest, and as¬ signs forever; and found and decreed that W. R. Hearst and Phebe A. Hearst had ac¬ quired an undivided interest in such lands and premises of the said two grantees.

“That on the 3d day of July, 1901, the said W. R. Hearst and Phebe A. Hearst, by

[98] deed in writing, conveyed all of their *said interest in and to the said lands and prem¬ ises to the plaintiff herein, and that plain¬ tiff has not since disposed of its title so acquired, or any part thereof, to said lands and premises.”

In addition, the trial court, among its conclusions of law, incorporated the follow¬ ing:

“That plaintiff and its predecessors and grantors in interest have been, since the 1st 200 U. S. U. S.. Book 50.

day of January, 1875, and ever since Have been, and still are, the owners and entitled to the possession of the lands and premises in plaintiff’s complaint, and hereinafter par¬ ticularly described, and each and every part and portion thereof.”

The supreme court of the territory, in its opinion on the rehearing, held this latter statement to be not a mere conclusion of law, but the -finding of an ultimate fact; and the court therefore adopted it as part of the findings of fact upon which it based the decree of affirmance. As to possession by the defendants, it was found as follows:

“That each and every of said defendants in this cause were, on the 14th of December,

1900, and had been for more than ten years next preceding that date, occupying various portions of the said lands and premises, and each and every of the said defendants who have failed to appear and answer herein have, since the last named date, withheld possession of divers portions of said lands and premises from the plaintiff and its grantors and predecessors in interest, and still and now so withhold the same; that since the said December 14, 1900, the an¬ nual value of the rents, issues, and profits of that part of said lands and premises so withheld from plaintiff by the said defend¬ ants is as follows, to wit: . . .”

This appeal was prosecuted.

On appeal from the supreme court of a territory our jurisdiction, apart from excep¬ tions duly taken to rulings on the admission or rejection of evidence, is limited to deter¬ mining whether the findings of fact support the judgment. Harrison v. Perea, 168 U.

S. 311, 323, 42 L. ed. 478, 482, 18 Sup. Ct.

Rep. 129, and cases cited. As on this record there is no question presented as to rulings of the court in respect *to the admission or [99] rejection of evidence, we can alone consider the sufficiency of the findings.

The errors assigned are sixteen in number, and resolve themselves into three classes:

court of the territory refused to consider the findings made by the trial court, and this embraces the 1st, 2d, and - 5th assign¬ ments. But these assignments disregard the opinion of the supreme court of the terri¬ tory, delivered on the rehearing, and do not require further notice.

the evidence to support the findings of fact. These are numbered 8 and 13, and likewise need not be further referred to, as they address themselves to a matter not open for our consideration.

of statement, attack the sufficiency of the findings made by the trial court, and adopted by the supreme court of the territory, which

Oct. Term,

99-101

include all of the assignments not already

dl1 The^contentions concerning the insuffi¬ ciency of the findings to support the judg¬ ment are resolvable into two propositions, which we shall separately consider:

First. That, irrespective of the adequacy or inadequacy of the possession asserted by the defendants below, the findings are insuffi¬ cient to sustain the legal conclusion of title in the plaintiff. This proposition rests upon the premise that the matter included in the conclusions of law of the trial court which the supreme court held to be a finding o fact, and which it adopted as such was but a mere conclusion of law, and, therefore, cannot be considered in determining the

Supreme Court of the United States.

sufficiency of the findings of fact to sustain the deduction of law made by the court below as to title in the plaintiff. And with this premise it is insisted that if the findings of fact proper are alone considered, they are insufficient to establish title in the plaintiff, because, although they show the Mexican grant, and its confirmation and a conveyance by William R. and Phebe A. Hearst to the plaintiff of an undivided interest in the land, [100]the findings fail as against ‘defendant to show any title whatever in William R. and Phebe Hearst, or in the plaintiff as their grantee, derived from the grantees of the Mexican government.

Conceding, merely for the sake of argu¬ ment, the correctness of the premise, we think the proposition based thereon is with¬ out merit, since the findings, without refer¬ ence to the action of the court in adopting the particular finding referred to, sustain as against the defendants the conclusion as to title. Those findings are that the plaintiff held title to an interest in the land in con¬ troversy, acquired by reason of a conveyance made on the 3d day of July, 1901, by William R. and Phebe A. Hearst. They, moreover, established that the land thus conveyed was originally acquired by the predecessors and grantors of the plaintiff through a grant made by the Mexican government in 1833, and that “on the 14th day of December, in the year 1900, the government of the United States, by its letters patent, recognized and confirmed” said Mexican grant to two named individuals, “and to their heirs, successors in interest, and assigns forever; and found and decreed that W. R. Hearst and Phebe A. Hearst had acquired an undivided inter¬ est in such lands and premises of the said two grantors.”

It is urged that the statement in the find¬ ing as to it having been decreed that there was an undivided interest in William R. and Phebe A. Hearst was adopted from a decree to that effect rendered by the court of private land claims, established 390

under the act of March 3, 1891. 26 Stat. at

L. 854, chap. 539, U. S. Comp. Stat 1901, p.

ir the patent as to the title in W. R. and Phebe A. Hearst was res inter alios, and that, in the absence of an express and sub¬ stantive finding of title in the parties named from the grantee of the Mexican government, the mere recital on the subject in the patent furnished no support whatever for the legal conclusion that there was title. This is based upon the terms of §§ 8 and 13 of the act establishing the court of private land claims, wherein it was provided that the ef¬ fect of the confirmation of a grant by that court should be ‘only to quitclaim the title, |1U1J and not to affect the interests of third par¬ ties. But, conceding that the patent, as as¬ serted, is based on a decree of the court of private land claims, and that its recitals are controlled by the terms of the act creating that tribunal, the proposition is without merit. Knight v. United* Land Asso. 142 U. S. 161, 188, 189, 35 L. ed. 974, 984,

12 Sup. Ct. Rep. 258. In that case it was held that although a patent which had been issued in consequence of the report of a tri¬ bunal appointed by Congress merely quit- claimed the rights of the United States, and saved the rights of third parties, it never¬ theless was conclusive as to the existence of a record title upon those claiming to hold under rights which originated subsequent to the cession, and, a fortiori, as to a person claiming title by mere possession. By the application of this doctrine it follows that the judgment confirming the land grant and the patent thereunder, which specifically de¬ creed an interest in the confirmed grant to the parties named, was adequate to establish a record title as against persons asserting the character of rights upon which the de¬ fendants relied.

Second. It is further insisted that, in view of the finding of the court below as to posses¬ sion of the defendant for more than ten years prior to the commencement of the action, the findings are inadequate to sustain the legal conclusion of the right of the plaintiff to recover, because of the force and effect of the period of limitation prescribed in paragraph. 2938 of the Revised Statutes of Arizona for

“Any person who has a right of action for recovery of any lands, tenements, or heredit¬ aments against another having peaceable and adverse possession thereof, cultivating, using, and enjoying the same, shall institute his suit therefor within ten years next after his cause of action shall have accrued, and not afterward.”

The court below held, and its ruling on this subject is not questioned, that prior to the adoption of this revision of the Arizona

200 TJ. S.

Sebballes v. Esbki.

101-103

statutes there was no statute of limitations in that territory barring a right of action {102] for the recovery of lands by *one claiming title against another holding merely by peaceable and adverse possession. The revi¬ sion went into effect on September 1, 1901, and the present action was brought a few days prior to such date, viz., on August 26,

In approaching the question whether para¬ graph 2938 was applicable to the case, the court below assumed that the effect of the finding as to possession by defendants was to show peaceable and adverse possession by them for the period of ten years. The court, however, decided that under no canon of con¬ struction or rule giving a retroactive effect to a new statute of limitation could para¬ graph 2938 be made to apply to this case. Thus, suggesting the possible construction which might be claimed for the paragraph, it was said that if construed as absolutely barring causes of action existing at the time of its passage it was unconstitutional, — cit¬ ing Sohn v. W aterson, 17 Wall. 596, 21 L.ed.

construed as providing that all actions exist¬ ing at the time of the passage of the statute should be barred if not sued upon within the time which elapsed between the date of such passage and the date fixed for the going into effect thereof, this action was brought within such period, and the statute could not operate as a bar, — citing Wrightman v. Boone County, 82 Fed. 413, and various state decisions therein referred to. And, lastly, it was decided that if the paragraph was con¬ strued as not applying to a suit which, though commenced after the passage of the act, was pending at the time the same took effect, the statute had no application, — cit¬ ing State, Vreeland, Prosecutor, v. Bergen, 34 N. J. L. 438.

We think the supreme court of the terri¬ tory was clearly right in the views which it thus expressed, and therefore it committed no error in determining that under no pos¬ sible hypothesis could the limitation pre¬ scribed in paragraph 2938 of the Revised Statutes of Arizona operate to bar the plain¬ tiff’s action, in view of the findings of fact in respect to the title of plaintiff.

Affirmed.