Opinion.

lieu thereof which was given; and that the court further erred in refusing to set aside the verdict and grant a new trial.

But it also appearing that by reason of his failure to qualify, as required by law, the said office became vacant, and the said Branham being rightfully in possession, and discharging the duties of said office, is entitled to hold over until his successor is qualified; that the judgment of said corporation court is erroneous and must be reversed and annulled, the said verdict set aside, and such judgment entered here as ought to have been entered by said corporation court.

JUDGMENT REVERSED.

Syllabus-Statement.

Richmond.

SCHOOLFIELD'S EX'OR V. CITY OF LYNCHBURG.

January 24, 1884.

1. TAXING POWER-State.-The legislature hath absolute sovereign power of taxation, save so far as restricted by the federal or State constitution. But all taxation-State, county or town-must be equal, uniform and ad valorem, except as to incomes, licenses and capitation. 2. IDEM-Municipal.-Municipal corporations have no power of taxation, unless the power be plainly and unmistakably conferred, and laws conferring on them powers of taxation must be strictly construed.

3. COLLATERAL INHERITANCE TAX.-Such succession tax is a premium demanded for the privilege of transmitting one's estate, and is not a tax on property in the sense of the constitution, Art. 10, ? 1. To impose a tax on such privilege is a power inherent in the legislature in the absence of constitutional inhibition.

4, COUNTIES AND MUNICIPALITIES.-The legislature may delegate to counties and municipal corporations the power to impose a succession tax; but the burden is always on them to show the clear legislative intent to do so.

5. CONSTRUCTION of Statutes.-The power to impose a collateral inheritance tax has been delegated to the city of Lynchburg neither by Code 1873, ch. 54, 33, nor by the charter of that city.

Appeal of John L. Schoolfield, executor of Henry D. Schoolfield, deceased, from decree of circuit court of Lynchburg, rendered 21st November, 1882, in suit of appellant in his own right and as such executor, and Henry O., James M, John T., Walter S., Mildred M. and Ormond M. Humphreys, infant children of John T. Humphreys, deceased, by Ro. I. Davis, their next friend, against the city of Lynchburg. The object of this suit was to enjoin

Statement-Opinion.

and prevent the city of Lynchburg from levying and collecting a collateral inheritance tax of five per cent. upon a legacy of $82,081.71 bequeathed by the will of the said Henry D. Schoolfield to the appellants. The circuit court dissolved the injunction as to all of the property bequeathed, which was situated within said city. From the decree the legatees obtained an appeal to this court.

Opinion states the case.

Kean & Kean, and Ro. I. Davis, for the appellants.

Kirkpatrick & Blackford, and Stephen Adams, for the appellee.

LACY, J., delivered the opinion of the court.

Said

Henry O. Schoolfield died in the State of North Carolina in May, 1880, having made his will with two codicils, which were all duly proved in the corporation court of Lynchburg, where the testator had real estate of the value of $32,200, on the third of July, 1880. The appellant and John T. Humphreys qualified as executors thereof. Humphreys has since died. By said will the testator gave certain special pecuniary legacies to his nephews and nieces and to the Humphreys children, and devised his real estate for the support of the widow and children of said Humphreys. By a tax ordinance passed on the 7th of May, 1880, and another passed May 6th, 1881, the common council of the city of Lynchburg imposed a collateral inheritance tax upon this real estate and the personal estate of the testator given in these legacies, which passed by his will, of five per centum on the aggregate value, which was $82,081.74, making a tax to the city on this succession of $4,104.09.

The collection of this tax was stayed by injunction by the circuit court; the city answered, and at the November

Opinion.

term, 1882, the cause came on for final hearing, when the court decreed that the city had no power by its charter to collect collateral inheritance taxes; that such power could be found only in section 33 of chapter 54 of the Code of 1873; that under the said statute said tax could be levied and collected by the city only on the value of so much of the estate which passed to the legatees and devisees as was situated within the corporate limits of the said city.

It was agreed that the value of this property was $32,200, the tax on which, at 5 per centum, amounts to $1,610, and the court dissolved the injunction as to so much of said tax, perpetuating it as to the residue.

From this decree an appeal to this court was applied for and allowed March 23d, 1883.

The 33d section of chapter 54 of the Code of 1873 is as follows:

"§ 33. It (the council or board of trustees of any town) shall annually cause to be made up and entered on its journal an account of all sums lawfully chargeable on the town which ought to be paid within one year, and order a town levy of so much as in its opinion is necessary to be raised in that way, in addition to what may be received for licenses and from other sources. The levy so ordered may be upon the male persons in the said town above the age of sixteen years, and upon any property in the said town, and on such other subjects as may at the time be assessed with State taxes against persons residing in the town."

The language of the city ordinance levying a tax upon collateral inheritances for city purposes, is as follows:

"IV. That upon the estate of any decedent which shall pass by his will, or in case of his intestacy, to any person other than his lineal descendant, or his father, mother, husband, wife, brother or sister, the tax thereon shall be five per centum upon the value or amount thereof, which is the provision of the act of the legislature for State taxation on collateral inheritances."

Opinion.

Section 33 of chapter 54 has been held by this court to apply to cities of the State as well as to the towns, and was adopted for uniformity by the legislature See City of Richmond v. Daniel, 14 Gratt., opinion of Samuels, Judge, and Mayo, Mayor v. James, 12 Gratt., opinion of Moncure, Judge.

The right of the city of Lynchburg to assess the collateral inheritance tax in question is contested. The right of the city to levy this tax has been held by the learned judge of the circuit court to be established by § 33, ch 54 of the Code of Va., which has been set forth above. The language relied on as giving the authority is as follows: "The levy so ordered may be upon any property in the said town, and on such other subjects as may at the time be assessed with State taxes against persons residing in the town." The State imposes a collateral inheritance tax upon the estate of any decedent of five per centum. The property taxed is situated in the city of Lynchburg. There is no authority in the charter of the city expressly given to the common council to levy a collateral inheritance tax, although the subjects enumerated are very numerous. The pretext for the authority to levy this tax is based solely on the said section 33 and the ordinance of the common council cited above.

Under the act of March 2d, 1854, § 15, which imposed a tax upon collateral inheritances, the right to levy this tax was contested in the case of Eyre v. Jacob, upon the ground that the tax was a violation of the constitution of the State, which provided the provision for uniformity and equality of taxation. In that case it was insisted that the provision for uniformity and equality of taxation applied to every species of tax, and it was also insisted that this tax was a tax on property and was a violation of the constitution of the State, which provided that all taxes should be equal and uniform. On the other hand, that this tax VOL. LXXVIII-47