In the Matter of the Estate of JAMES E. DAMON, Deceased; AMELIA S. DAMON, Executrix, etc., Appellant, v. JOHN E. McDOUGALD, City and County Treasurer, etc., Respondent

[Civ. No. 572. Third Appellate District. —May 6, 1909.] In the Matter of the Estate of JAMES E. DAMON, Deceased. AMELIA S. DAMON, Executrix, etc., Appellant, v. JOHN E. McDOUGALD, City and County Treasurer, etc., Respondent. Estates oe Deceased Persons—Inheritance Taxation—Widow—Discrimination Under Fourteenth Amendment not Involved.— Upon appeal from an order of the superior court directing a widow, as sole devisee of her deceased husband, to pay the “inheritance tax,” under the act approved March 20, 1905, the contention that such tax makes an unjust discrimination between citizens of this state and citizens of other states, in violation of the fourteenth amendment to the federal constitution, is not involved, when it cannot be determined that the appellant is an aggrieved party. It is only when a nonresident of the state assails the validity of the law on that ground that such question will be decided. Id.—Validity • of Inheritance Tax Upheld.—The validity of the inheritance tax in question has been repeatedly upheld by the supreme court of this state, which has settled the constitutionality of the act of 1905. APPEAL from an order of the Superior Court of the City and County of San Francisco directing the widow of the decedent to pay an inheritance tax. J. Y. Coffey, Judge. The facts are stated in the opinion of the court. J. C. Bates, for Appellant. Hartley F. Peart, for Respondent. [MAJORITY — BURNETT, J.] BURNETT, J. The appeal is from an order of the superior court of the city and county of San Francisco directing the widow, sole devisee under the will of said James E. Damon, deceased, to pay $1172, “inheritance tax,” under the act of the legislature approved March 20, 1905. Appellant’s only contention seems to be that said law is repugnant to the constitution of the state and especially to the fourteenth amendment of the constitution of the United States. The argument is based principally upon the theory that there is a discrimination between the citizens of this state and those of other states, but it would be a sufficient answer to say that it does not appear to which class appellant belongs and hence—granting such discrimination—it cannot be determined that appellant is an aggrieved party. What was said in Estate of Johnson, 139 Cal. 534, [96 Am. St. Rep. 161, 73 Pac. 425], might well, therefore, be invoked: “A court will not decide a constitutional question unless such construction is absolutely necessary; and in the Mahoney case, since the appellants were aliens and claimed no protective rights as citizens, no constitutional question was involved. It would have been sufficient in disposing óf their appeal to have said, as was said by the federal court in the case last cited: ‘When a nonresident of the state assails the constitutionality of a statute upon the ground that it denies to him the privilege granted to the citizens of this state, it will be time enough to consider the constitutional question suggested. Courts will not listen to those who are not aggrieved by an invalid law.’ As the Supreme Court of the United States has said in Chicago Ry. Co. v. Wellman, 143 U. S. 339, [12 Sup. Ct. 400]: ‘But exercise of the power to declare the statute unconstitutional and void is the ultimate and supreme function of courts. It is legitimate only in the last resort and as a necessity in the determination of a real, earnest and vital controversy between individuals.’ ” But again, appellant admits that “the validity of said law has been upheld by several decisions of the Supreme Court,” and therefore she hardly expects ‘.‘the court to go back of their own rulings.” With less reason, of course, could she expect us to overrule those decisions. All the questions, indeed, discussed by counsel have been settled adversely to appellant’s contention in the following cases: Estate of Wilmerding, 117 Cal. 281, [49 Pac. 181]; Estate of Stanford, 126 Cal. 112, [54 Pac. 259, 58 Pac. 462], and Estate of Martin, 153 Cal. 225, [94 Pac. 1053]. The order is affirmed. Chipman, P. J., and Hart, J., concurred.