in Connecticut which state also claimed a succession tax. The court observed: "It is contended by the executors that the proceedings in the Connecticut court and the judgment therein fail to give full faith and credit to the public acts, records and proceedings of the State of New York, and that this is in violation of the Constitution of the United States. We do not think there is anything in this point. There is nothing in the proceedings in the Connecticut court that is inconsistent with those in the New York court. There is nothing to indicate that the New York court decided, assuming it had jurisdiction to decide, that there was no power in the state of Connecticut to impose a tax on the transfer that was taxed in Connecticut. More than that, the proceedings and judgment in New York were not such as would conclude Connecticut even with the full faith and credit clause of the Constitution. Connecticut was not a party to those proceedings or to that judgment, nor was it in privity with any one who was a party." 277 U.S. 1, 18, 19, 48 S. Ct. 410, 417, 72 L. Ed. 749.
Plaintiffs' endeavor to avoid this conclusion in their contention that during the course of the Pennsylvania proceedings citations were served upon the New Jersey Chief Tax Supervisor (by registered mail and also personally in New Jersey) and the Comptroller of New Jersey (by registered mail) is without merit. These parties did not appear in the Pennsylvania proceedings. Furthermore, the notice given them is patently ineffective. Baker v. Baker, Eccles & Co., 242 U.S. 394, 403, 37 S. Ct. 152, 155, 61 L. Ed. 386, made the following comment on this point: "And to assume that a party resident beyond the confines of a state is required to come within its borders and submit his personal controversy to its tribunals upon receiving notice of the suit at the place of his residence is a futile attempt to extend the authority and control of a state beyond its own territory."
We may now look to the Fourteenth Amendment to determine if the state of New Jersey is violating the Constitution.
The court in Worcester County Trust Co. v. Riley, 302 U.S. 292, 298, 58 S. Ct. 185, 187, 82 L. Ed. , made the following statement: "This Court has held that state statutes, construed to impose death taxes upon the intangibles of decedents domiciled elsewhere, infringe the Fourteenth Amendment, and it has accordingly reversed judgments of state courts enforcing such liability. First National Bank v. Maine [284 U.S. 312, 52 S. Ct. 174, 76 L. Ed. 313, 77 A.L.R. 1401] supra; Farmers Loan & Trust Co. v. Minnesota, [280 U.S. 204, 50 S. Ct. 98, 74 L. Ed. 371, 65 A.L.R. 1000]."
The petitioner urges upon the court the same cases for the proposition that the Fourteenth Amendment is violated. In neither of these cases, however, were there conflicting claims as to domicile as in the instant case. Furthermore, the petitioner does not point to any New Jersey statute which operates extraterritorially and unconstitutionally as in those cases. He makes reference, however, to the following statute:
"1. A tax shall be and is hereby imposed upon the transfer of any property, real or personal, * * * in the following cases:
"First. When the transfer is by will or by intestate laws of this State from any person dying seized or possessed of the property while a resident of the State.
"Second. When the transfer is by will or intestate law of real property within this State or of goods, wares and merchandise within this State, and the decedent was a nonresident of the State at the time of his death." R.S.N.J.1937, 54:34-1, 1925-1930 Cum.Supp. to C.S., § 208-537, p. 1829.
The second section of the abovecited statute is obviously in accord with those cases holding that the taxable situs of tangible property is its actual situs. Frick v. Pennsylvania, 268 U.S. 473, 45 S. Ct. 603, 69 L. Ed. 1058, 42 A.L.R. 316; Union Refrigerator Transit Co. v. Kentucky, 199 U.S. 194, 26 S. Ct. 36, 50 L. Ed. 150, 4 Ann.Cas. 493. Accordingly, it is difficult to conceive that this statute could per se be held violative of the Constitution. Plaintiffs argue that New Jersey is without jurisdiction to tax under the first setion of the above statute, because the will was not probated in New Jersey, but in Pennsylvania. It is equally difficult to understand how the probate of a will in a state would deprive the domiciliary state of its right to tax. In re Hartman's Estate, 70 N.J.Eq. 664, 668, 62 A. 560. In fact, if the domiciliary state's power to tax may not be exercised unless the estate is being administered therein, then a chaotic condition in this type of taxation would result. Obviously, there is nothing in the statute violative of the Constitution.
Plaintiffs offer general principles to the effect that the power to tax pepends upon a reciprocal relation existing between the state and the taxpayer; that the state protects his property and enhances its value in civic improvements. Plaintiffs submit that the state of New Jersey has been in no position to render these services, because the property is located in Pennsylvania. This argument could be appropriately used if New Jersey undertook to tax tangible property located elsewhere. If, however, the contention is applicable to intangible property located elsewhere, such would be tantamount to saying that the taxable situs of intangible property is its actual situs.That it is not is too well settled to admit of further argument.
The case of City Bank Farmers' Trust Co. v. Schnader, 291 U.S. 24, 54 S. Ct. 259, 78 L. Ed. 628, Id., 293 U.S. 112, 55 S. Ct. 29, 79 L. Ed. 228, though somewhat analogous to the case at bar, in that an injunction was sought against the imposition of an inheritance tax by the officials of the state of Pennsylvania, is not controlling. In the first opinion, the Supreme Court held the bill of complaint stated a cause of action in equity. In the later opinion, however, it affirmed a denial of an injunction because the situs of the property was within Pennsylvania. The question then was not the owner's domicil as it is in the instant case, but the situs of the property.
For the same reason the facts in the instant case do not come within the case of Safe Deposit & Trust Co. v. Virginia, 280 U.S. 83, 50 S. Ct. 59, 74 L. Ed. 180, 67 A.L.R. 386, which holds that the domiciliary state may not levy taxes upon intangible property located elsewhere if that property has assumed a "business situs" in another state. There the decedent, admittedly domiciled in the state of Virginia, had established a trust for the benefit of his two children, the corpus of which was held by a trustee in the state of Maryland. The court concluded that the corpus could not be taxed by the state of Virginia, because the property, even though intangible, had assumed a "business situs," in the state of Maryland. The court then was not concerned with the domicil of the owner, but with the situs of the property. Counsel have not undertaken to offer any proof or show any facts which would indicate that the state of New Jersey in the instant case is attempting to tax intangible property the "business situs" of which is in Pennsylvania.
As decided in Worcester County Trust Co. v. Riley, supra, the Eleventh Amendment prohibits a suit against state officials unless there is a constitutional infringement. The court, being unable to find such, is constrained to the conclusion that this bill cannot be maintained and that the suit must be dismissed.
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