
    No. 10126.
    No. 10127.
    Friend v. Levy. Bing v. Bing.
    
      Law requiring equal operation to be constitutional — Cannot be given unequal operation by an amendment — Or by an exception in repealing statutes — When act of legislature is repealed without saving clause — Stands as though it had never existed — Except as to transactions past and closed — Section 79, Revised Statutes — Effect of amendments and repealing statutes — Interpretation of statutes — Conflict of laws.
    
    1. A law that must have an equal operation to be constitutional cannot be given an unequal operation by an amendment or by an. exception in a repealing statute; either the subsequent statute or so much of it as would have that effect is void.
    2. A general rule of interpretation of statutes is, that when an act of the legislature is repealed without a saving clause, it is considered, except as to transactions past and closed, as though it never had existed. This rule is largely superseded by Section 79, Revised Statutes, which provides that: “Whenever a statute is repealed, or amended, such repeal or amendment shall in no manner affect pending actions, prosecutions, or proceedings civil or criminal, and when the repeal or amendment relates to the remedy, it shall not affect pending actions, prosecutions, or proceedings, unless so expressed; nor shall any repeal or amendment affect causes of such action, prosecution or proceeding, existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act,” but one legislature cannot prescribe binding rules for the interpretation of the statutes passed by a subsequent legislature and while in the absence of anything in a statute indicating a different intent the legal presumption is that the legislature intended the statutory rule to apply, yet when it clearly manifests a different intention the statutory rule does not apply.
    3. The exception, as to estates in which the inventory had already been filed, in the act of April 2, 1906, 98 Ohio Laws, 229, repealing the inheritance tax law, would give the law an unequal operation and is therefore void.
    4. It clearly appears that Section 79, Revised Statutes, was not intended to apply to the repealing act and the right to collect such taxes terminated when that act took effect.
    (No. 10126
    Decided February 26, 1907.)
    (No. 10127
    Decided February 26, 1907.)
    Error to the Circuit Court of Hamilton County.
    These suits were instituted to obtain a construction of the act repealing what is known as the inheritance tax law. In the first case the decedent died testate, October 8, 1905. On November 7, 1905, an inventory and appraisement that had been made as provided by Section 6023, et seq., Revised Statutes, relating to executors and administrators, was filed in the probate court, November 17, 1905, the executors made application to the probate court as provided in the inheritance tax law, for the appointment of appraisers to make an inventory and appraisement of all the property of the decedent, including the real estate. The appraisers were appointed and returned an inventory and appraisement to the probate court on November 25, 1905, and the probate judge reported the same to the auditor of state. The petition, after reciting the above facts, avers that the probate court has not determined the value of said property or that it is subject to the inheritance tax, but that the probate judge, the auditor of state, and the executors claim that it is subject to such tax, and that unless restrained the probate judge will proceed to fix the amount of the tax, and that the executors will pay it to the auditor of state, notwithstanding the repeal of the statute.
    In the second case, the decedent died testate, November 14, 1905. On December 22, 1905, the will was duly probated, and the executors qualified. Prior to May 8, 1906, no inventory or appraisement was made or filed in the probate court, but on that day one was filed as provided by Section 6023, et seq., Revised Statutes. The petition then avers, substantially as in the first case, that the claim is 'made that the property is subject to the inheritance tax, and an injunction is prayed for.
    In each case a general demurrer was filed, sustained, and the petition dismissed, and on error in the circuit court the judgment was affirmed.
    (No. 10126.) Messrs. Burch & Johnson; Mr. David Davis; Mr. W. W. Boynton and Mr. James 0. Troup, for plaintiff in error.
    (No. 10127.) Messrs. Burch & Johnson; Mr. David Davis; Mr. W. W. Boynton; Mr. R. B. Murray and Mr. James O. Troup, for plaintiff in error.
    
      Mr. Wade H. Ellis, attorney-general, and Mr. Roscoe J. Mauck, for defendants in error in both cases.
    Brief of Mr. Troup.
    
    The controversy in each case grows out of the statute repealing the inheritance tax law of 1904. The repealing act was passed April 2, 1906.
    
      The exact questions in dispute are:
    1. Does the repeal relieve from the tax any estates in which the decedent died prior to its passage?
    2. If so, does the relief extend as well to estates in which an inventory was filed before the repeal as to those in which an inventory was not so filed ?
    If the first question shall be answered in the negative, the second becomes of no consequence. If answered in the affirmative, the second question becomes vital in the Friend case, unless the last clause of the repealing act shall be held invalid.
    In the able brief of the attorney-general he states as his first proposition that “the act either repeals the law, or is unconstitutional.” He refers, of course, to the act of April 2. We can not believe that his meaning is as broad as his statement. He must mean that the last clause only is unconstitutional. Otherwise he does violence to-the very common doctrine that part of a statute may be constitutional, and the remainder unconstitutional, and if the parts can be separated without destroying the efficacy of the part which is not obnoxious to the constitution, that part will stand.
    In our view of the case it is immaterial whether the last clause of the repealing act is or is not obnoxious to the constitution. The legislature could repeal the inheritance tax law, and has repealed it, whether the last clause of the repealing act is valid or invalid. If it is unconstitutional, we have, in what precedes it, an unqualified repeal of the inheritance tax law, unless it be qualified by the last clause of Section 79, Revised Statutes. The attorney-general concedes that if it were not for Section 79 an •unqualified repeal of the inheritance tax law, including the remedies which it prescribed, would cut off the right and power of the state to collect any taxes under it. The contention is that all right and power of the state to collect the tax ceased on the passage of the repealing act.
    In so stating the proposition, we, of course, assume the last clause'of the act to be invalid.
    Section 79 saves three things from the operation of unqualified .repealing acts. They are:
    1. Pending actions.
    2. Remedies in so far as they relate to pending actions.
    3. “Causes of such action * * * existing at the time of the repeal.”
    To avoid confusion of thought, let us inquire first what a cause of action is, and, second, when it accrued under the inheritance tax law. A cause of action is more than an obligation, however strong the obligation may be. A cause of action always implies an obligation, but an obligation does not necessarily imply a cause of action. 5 Am. & Eng. Ency. Law, 2d Ed., 776; Bouvier’s Law Dictionary, Vol. 1, 247.
    Under none of the definitions cited by the foregoing authorities had a cause of action accrued under the inheritance tax law, at the date of its repeal, against either the Bing estate or the Friend estate. True, the first section of that'law declared that, “Such taxes shall become due and payable immediately upon the death of the decedent, and shall at once become a lien upon said property.” But it does not follow that the lien could be immediately enforced or the tax at once collected. A promissory note payable on or before one year from date and secured by mortgage is payable at any time, and the debt is a lien on the mortgaged property, but it will not be claimed that a cause of action oh either note or mortgage exists until a year from their date.
    In fact, the second section of the inheritance tax law precluded any right of action to enforce payment of the tax under eighteen months from the date of the death of the decedent.
    From the language of said Section 2 it' clearly appears that before an action could be brought, that is to say, before a cause of action accrued, eighteen months must have elapsed after the death of the decedent, the auditor of state must have notified the attorney-general in writing and the latter must have issued his instructions to the prosecuting attorney of the proper county. All these and one other thing preceding all of them must have occurred before a cause of action for the enforcement of the tax: could exist. There must have been an appraisement of the estate. Otherwise it was impossible to determine whether there was even an obligation on the part of any person to pay an inheritance tax, much less a present right in the state to enforce collection, The right to succeed to, or inherit property under three thousand dollars in value was exempt from taxation. Only an appraisement of the estate could determine either-the existence of an obligation to pay, or the amount of the obligation if it existed. The appraisement could be had in either of two ways, by the inventory under Section 6023, Revised Statutes, or by the method prescribed in Section 9' of the inheritance tax law.
    
      Brief of Messrs. Burch & Johnson.
    
    
      ° It is conceded that the Inheritance Act of 1904 has been absolutely repealed, but it is insisted that Section 79, Revised Statutes, is to be read into and considered a part of the act repealed.
    Section 79, Revised Statutes', is by its terms made applicable to the state of Ohio only in criminal prosecutions. There are no other supposable instances in which the state could be affected by so general a statute.
    There is no express language of Section 79, Revised Statutes, making the same applicable to any pending actions or proceedings of the state. There are no remedial statutes by which the state is bound, apart from criminal statutes, nor are there any causes of such action existing either in favor of or against the state.
    Section 13, Revised Statutes of the United States, by apt language, preserves to the government all penalties, forfeitures and liabilities incurred by others to the government under any statute which imposes them in favor of the government, notwithstanding the repeal thereof. It required such direct provisions to preserve governmental rights, which would otherwise have been lost. Their absence in the statute under consideration is conclusive that such rights were not intended to be preserved thereby.
    Had the repealing act in question contained the proviso, “That such repeal shall in no manner affect the collection of taxes by the state from all estates in the process of administration at the time of such repeal,” it might be conceded (but only for the present argument) that the repealed law would still be in operation for the collection of all taxes theretofore fixed and determined by the court as due thereunder. It is sought to give a like effect to the act of April 2, 1906, by incorporating therein the provisions of Section 79, Revised Statutes.
    Counsel then cite and comment upon: Commonwealth v. Desmond, 123 Mass., 407; Tobin & Neary v. Hartshorn, 69 Ia., 648; State v. Water-ville Savings Bank, 68 Me., 515; Clapp v. Mason, 94 U. S., 589; Bruce, Treas., v. Cook et al., 136 Ind., 214; State v. Barlow, 70 Ohio St., 363; State v. Cincinnati Tin & Japan Co., 66 Ohio St., 182; Desty on Taxation, Vol. 1, Sec. 6, p. 9; Mitchell v. Board of Trustees, 71 N. C., 400; McQuilkin v. Doe, 8 Blackford, 581; Rinard v. Nordyke, Treas., 76 Ind., 130; Gorley v. Sewell, 77 Ind., 316; Flanigan v. Sierra County, 196 U. S., 553; Blackwell on Tax Titles, Sec. 1048; Lewis’ Southerland Statutory Construction, Sec. 282; Gull River Lumber Co. v. Lee et al., 7 N. Da., 135.
    
      Mr. Davis cited and commented upon the following authorities:
    
      State, ex rel., v. Trustees of Crane Township, 71 Ohio St., 496; Lewis v. Eutsler et al., 4 Ohio St., 354; Act of April 2, 1906, 98 O. L., 229; Section 79, Revised Statutes.
    Brief of Mr. Boynton.
    
    We claim that the Act of April 2, 1906, repealing the direct inheritance tax law, passed April 25, 1904 (97 O. L., 398), relieves existing estates, legacies and devises from the payment of the inheritance tax in all cases where the inventory of the estate had not been filed at the date of the passage of the repealing act, and where eighteen months from the death of the decedent had not elapsd at the date of its passage. The repealing act provides, “That the act entitled ‘An act to impose a tax upon the right to succeed to, or inherit property,’ passed April 25th, 1904 (97 Ohio Laws, 398-400), be and the same are hereby repealed, except as to estates' in which the inventory has already been filed at the date of the passage of this act.” Passed April 2, 1906 (98 O. L., 229). This language exempts from the tax all estates except those enumerated unless the exemption is defeated by Section 79, Revised Statutes. ’ The claim that Section 79, Revised Statutes, defeats the exemption, utterly ignores the plain meaning and intendment of the clause “except-as to the estates in which the inventory has already been filed at the date of the passage of this act,” and, besides, gives án effect to Section 79 wholly unauthorized by its language. The first and second clauses of this section have no bearing on the question under discussion because they relate wholly to “pending actions, prosecutions and proceedings.” , An action to collect the tax would not, ordinarily, at least, be pending except in, a.case where the inventory had been filed, and an action brought to collect the,tax; and the right to the tax where the inventory has been filed is expressly reserved to the state by the repealing statute, and is also saved to the state if an action was pending for the collection at the date of the repealing act. The question therefore resolves itself into the inquiry whether the last clause of Section 79 saves the tax to the state in cases where the inventory of the estate was not filed in the probate court prior to the passage of the repealing act.
    
      We respectfully submit that this inquiry must be answered in the negative. The clause, “Nor shall any repeal affect causes of such action, prosecution, or proceeding existing at the time of such repeal unless otherwise expressly provided in the repealing act,” applies only to cases where the right of cause 'of action is.mature, and where suit may be at once brought for its enforcement. “The cause of action, prosecution, or proceeding” does not exist until the point of time when the action, prosecution or proceeding may be commenced and an action brought upon the claim sought to be enforced. “An action is the process by which a right is enforced” (Sander’s Justinian, 48), and a cause of action can not exist until the right to such process may be resorted to. A demurrer certainly would lie to a petition that sought to recover a judgment upon a promissory note not yet due upon the ground that the petition did not state facts sufficient to constitute a cause of action; and the ground of the demurrer would be that it appeared from the face of the petition that the note was not due. A cause of action, ex vi termini, implies a cause upon which action may be taken or suit brought in a court having jurisdiction to give judgment upon it. An unmatured claim is not a cause of action. It ripens into one, when, and not until, the time arrives at which an action may be brought to collect or enforce it. This proposition ought not to require more than a mere statement to secure an acceptance of its correctness. The inheritance tax law, 97 O. L., 399, Section 2, expressly extends the time for the payment of the inheritance tax until the expiration of eighteen months “after' the death of the decedent,” requiring the executor, administrator or trustee charged with the payment of the tax, to pay interest on the tax at the rate of six per cent, after the expiration of twelve months from the death of the decedent. Hence there can be no cause of action until eighteen months have elapsed. It is true that Section 1 of the inheritance tax law declares “that such taxes shall become due and payable immediately upon the death of the decedent, and shall at once become a lien upon said property.” This language, considered in connection with the subsequent sections of the act, was clearly not intended to give a right of action for its collection, at once, but to authorize the executor, administrator or trustee to pay the tax and sa\re the discount of one per cent, per month provided by the last clause of Section 2, when payment is made prior to the expiration of one year from the death of the decedent. To say because of the language that “such taxes shall become due and payable immediately” that a cause of action exists for their collection, is to hold the subsequent provisions extending the time for the commencement of the action until eighteen months have expired nugatory and inoperative. The statute expressly námes the time at which an action may be brought for the recovery of the taxes, and definitely extends it for the period of eighteen months, charging interest for the last six months. Consequently there is no condition or state of circumstances for Section 79 to act upon, as there is no “pending action, prosecution or proceeding,” nor any cause of action, prosecution, or proceeding until after the expiration of eighteen months from the death of the decedent, whose estate is being administered.
    
      Brief of Mr. Murray.
    
    This court has determined that the General Assembly has power to impose an inheritance tax, in State, ex rel., v. Ferris, 53 Ohio, St., 314, and has substantially determined by a majority opinion that the direct inheritance tax provided for by Sections 2731-18, et seq. (97 O. L., 398) is not'inhibited by the Constitution. See State, ex rel., v. Guilbert, Auditor, 70 Ohio St., 229.' We will not enter into discussion in this case of the binding force and validity of the Act of 1904, but confine ourselves to the effect of the repealing Act of 1906.
    It appears that the filing of the “inventory” provided by the general administration statutes is the initial step which brings the state within the remedial features of the statute.
    The inventory and appraisement is that from which the probate court and the auditor of state learns as to what property of the estate has descended by the death of the decedent, either by will or the law of descent, and the copy thereof transmitted to the auditor of state as the beginning point of his jurisdiction to collect any tax upon the right to succeed to it.
    In the repealing act the word “inventory” is used and refers to the inventory mentioned in the general administration acts and which is the same inventory mentioned in Section 6 of the Act of 1904.
    In considering the effect of the exception in the repealing statute we will be aided by the rule ex-pressio unius est exclusio alterius. This rule is No. 64. Black on Interpretation of Laws, 146; Endlich on Interpretation of Statutes, Sec. 399.
    
      The converse of the above rule is also well established, and is stated in 26 Am. & Eng. Ency. Law, 605.
    Thus the exclusion or exception from the operative effect of the repeal .of all estates having filed an inventory, pperates to include within the effect of the repeal'all estates not having filed an inventory.
    As to effect of repeal, Endlich on Interpretation of Statutes, Section 478, lays down the rule.
    And we are not unmindful, in calling attention to ' the above rule, of the provisions of Section 79, Revised Statutes, of which we shall speak hereafter, as to its bearing, if any, upon the questions in this case.
    Another matter to be kept constantly in view in the consideration of the questions involved in this case is that it has reference to. the, imposition of a tax in favor of the state which, under the law, is the real party to this case, through the auditor of state. And the state is acting for itself in the passage of the- law in reference thereto, and it is un1 der the Act of 1904, the beneficiary; and under the Act of 1906 repealing the the Act of 1904, it is ácting in its sovereign capachy with reference to its own rights. For what the legislature does within its constitutional limitations, the state does, and when it repeals acts relating to taxes it is the state acting with regard to the same, and no refinement of words or circumlocution can make it otherwise.
    The state, through its legislature had the right to excuse its-citizens from the payment of any tax, which it had a right to collect. It had the right to remit in whole or in part any tax. It had the right to say, We will not take this tax upon the right to inherit property any longer. Such taxes as have not been paid are no longer required to be paid. Such taxes, the amount thereof that has not been determined, no proceedings shall be taken to determine the same, and all proceedings relative to the determination of the same shall be repealed. The state had the right through its legislature to prohibit the collection of any vested interest that may have accrued under any statute. -In this repealing statute we have the party to be beneficially interested by the provisions of the statute saying that it will not accept the benefits provided by the statute from any estate in any situation it may provide for. We have the state of Ohio passing a law with reference to its conduct toward its own citizens, evidencing thereby its intention not to accept or require the payment of the inheritance tax from any estate that has not already filed an inventory.
    . The sovereign state of Ohio, over and above and beyond its citizens and subjects has said thus far and thus far only will I insist upon any rights which I might have had under the previous statute; and I will proclaim it to them in a statute, and in that statute it proclaimed that it would no longer burden any class of citizens named in it with the' tax imposed by the Act of 1904, and I will stop it here, to-wit: All estates that have not filed an inventory in accordance with the previous statute shall forever be absolved from any obligation under that statute.
    The question may be asked, What is your answer to that portion of Section 79, Revised Statutes, which says:
    “Nor shall any repeal or amendment effect (affect) causes of such actions, prosecution, or proceeding, except at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act.”
    Grant for the sake of the argument, that there is a cause of action or proceeding existing at the time of such repeal in favor of the state, it is expressly provided by the repealing statutes, what causes of action or proceeding shall survive the statute; for it expressly provides that such causes of action or proceeding shall survive the repeal, as existed against such estates as have filed an inventory. There ar'e only two classes of estates, one in which an inventory has been filed, and one in which an inventory has not been filed. The statute says the repeal shall affect all causes of action or proceeding, except against such estates as have filed an inventory. .Is it not “otherwise expressly provided in the repealing act, what causes of action or proceeding shall be reserved from its provision,” and having expressed what shall survive, it is an expression that causes of action or proceeding against those estates in the other class shall not survive; and if there ever was an instance where the rule expressio unius exclusio alterius applies, it is this case. State, ex rel., v. Board of Public Works, 36 Ohio St., 414; Trustees v. Campbell et al., 16 Ohio St., 11; State, ex rel., v. Railway Co., 37 Ohio St., 176; State, ex rel., v. Cappellar, 39 Ohio St., 207; State v. Barlow, 70 Ohio St., 363.
    Therefore, we contend that the provisions of Section 79, Revised Statutes, has no bearing upon statutes of the kind in controversy. The fact of the state moving in regard to its own interest as against its own citizens and prescribing a rule to govern itself, carries it beyond all question that so far as the state is concerned its right of action or proceeding has been expressly repealed or amended.
    It may be claimed that the repealing Act of 1906, if given the foregoing construction is retroactive, but this court has decided in Kumler v. Silsbee, 38 Ohio St., 445, that it is the design of Article 2, Section 28 of the Constitution, prohibiting the legislature from passing retroactive laws to prevent retrospective legislation injuriously affecting individuals and thus protect vested rights. State, ex rel., v. Peters, 43 Ohio St., 651; Lewis v. Eutsler et al., 4 Ohio St., 354.
    Brief of Mr. Ellis, attorney-general, and Mr. Mauck.
    
    Plaintiffs in error contend that' the effect of the passage of the foregoing act was to absolutely and unqualifiedly repeal the direct inheritance tax law of 1904. We are, inclined to believe that this proposition is sound. Either the qualification in the repealing act is to be given no force or effect, or the act is unconstitutional.
    If the words “except as to estates in which the inventory has already been filed at the date of the passage of this act” express an intent which the General Assembly was qualified to express, that intent was to cover in part the ground more fully and completely covered by Section 79, Revised Statutes, and hence may be ignored. But if the intent of the General Assembly was to release a part and part only of the taxes to which the state had become entitled under the law, then such excepting clause violates both the bill of rights and the uniformity clause of the Constitution.
    It is not disputed that by virtue of the direct inheritance tax law the state became entitled to taxes upon all successions to property, subject only to an exemption of three thousand dollars upon each inheritance. The General Assembly in passing the law of 1904 could not have provided that all estates,, in which an inventory is filed- prior to April 16, 1906, should be subject to the tax. It is the duty of the personal representatives of all estates to file an inventory (Sec. 6023, Revised Statutes), arid the General Assembly is without power to levy a tax upon estates complying with that section and exempting those being administered in violation thereof. This court has already determined that.a tax less invidious in its discrimination than this clause is violates the Constitution. State, ex rel., v. Ferris, 53 Ohio St., 314.
    If it were not competent for the General Assembly to have provided originally for so flagrant a discrimination, it is difficult to see how it could do so indirectly by accomplishing the same end in a repealing act. If so, a biennial repeal followed by an immediate re-enactment of the original governing statute could accomplish what would be denied the General Assembly if done directly.
    At, the time of the repeal the taxes from many inheritances remained unpaid. The law in force-at the time of the death of the decedent governs the imposition of the tax. 27 Am. & Eng. Ency. Law (2d Ed.), 341, and cases cited.
    The status of - all estates having been fixed while the taxing law was in force it was not competent for the General Assembly to make an arbitrary classification of debtors and forgive one and not the other, arid if the excepting clause is found to attempt- such a course, and the General Assembly would not have repealed the law without such exception, then the whole repealing act must fail as violating in its essential terms the Constitution of Ohio. For these reasons only we agree with counsel for plaintiffs in error, that this repealing act is an absolute, unqualified repeal, if it is anything.
    Plaintiffs in error contend that the effect of an absolute, unqualified repeal is to destroy all further power to proceed thereunder, and in support thereof quote from Dos Passos on Inheritance Tax Law.
    The author of this work is a member of the bar of the state of New York, and his book relates, in the main, to the New York Statute, and the chief authorities upon which the author seems to rely are those of the state of New York. The book was written in 1890, and at that time the above doubtless fairly expressed the law of that-state, for it does not appear that the statutes of the state of New York provided any sufficient saving of remedies for a right of action arising under a repealed statute, until a codification of the laws of New York in 1892. Revised Statutes of N. Y. (1889), Chapter 21; General Laws of N. Y. (1904), p. 3838-.
    Since the codification in 1892 it is hardly to be presumed that the author quoted would contend that the repeal of a tax law destroys the power to collect the tax where an ample saving clause for the protection of accrued rights is in force.
    Plaintiffs in error also rely upon Cooley on Taxation, 3d-Ed., 21.
    
      The case of Montague v. State, 54 Md., 481, cited in support of the position of plaintiffs in error, does not seem to sustain that position.
    In brief, the Court of Appeals of Maryland held that, notwithstanding the tax had accrued, the General Assembly might by express provision forgive the payment of all taxes of that class remaining unpaid. That is not the case now under consideration. In the case at bar the state does not dispute the power of the General Assembly to surrender the. right to collect all taxes,. but insists that the act under consideration has no such effect and discloses no such purpose.
    We do not deny the general rule that where both a right and remedy are dependent upon a statute no recovery can be had after the repeal .of the statute creating the right and providing the remedy. This became so generally recognized as the rule many years ago that many of thé states of the Union and the federal government have adopted by general statute such saving clauses as are necessary to defeat the rule. In obedience to the generally recognized demand for such remedial legislation, Ohio provided for saving rights accruing under repealed statutes by the enactment of Section 79 of the Revised Statutes, and the state relies upon that section for the recovery of taxes owing by virtue of the now repealed direct inheritance tax law.
    . It has been repeatedly held in jurisdictions having a general saving statute of this nature that such section is to be read into and considered a part of every act repealed. Lewis’ Sutherland Statutory Const. (2d. Ed.), Section 287; Commonwealth v. Desmond, 123 Mass., 407; Section 13, Revised Statutes of United States; United States v. Reisinger, 128 U. S., 398.
    
      In Iowa, under a section very similar to Section 79, Revised Statutes of Ohio, in the case of Tobin & Neary v. Hartshorn, 69 Ia., 648, it was expressly held that where a tax had been levied, but not collected before the repeal of the governing statute, the right to realize upon such levy was preserved. Arnaud’s Heirs v. Executor, 3 La. Rep., 336; Quessart’s Heirs v. Canonge, 3 La. Rep., 560; State v. Waterville Bank, 68 Me., 515; Mason v. Clapp, Holmes, 417.
    Plaintiffs in error argue that Section 79 can not be invoked by the state on the ground that said section preserves only the right of private litigants. In support of this position here are cited: State, ex rel., v. Board of Public Works, 36 Ohio St., 409; State, ex rel., v. Cincinnati Central Railway Co., 37 Ohio St., 157; State, ex rel., v. Cappellar, 39 Ohio St., 207.
    In none of these cases, however, was it held that the state could not be a beneficiary of its own general statutes. The point decided in each case was that:
    “The state is not bound by the terms of a general statute, unless it be so expressly enacted.”
    The court thus held that the state was not bound to pay interest upon a past due claim, notwithstanding a general statute applying to debtors; nor could it be held liable for certain costs in the absence of a statute particularly applicable to the state; nor could it in any way be divested by general statute of any of its prerogatives or interest unless the statute particularly subjected the state to the provisions of such statute.
    
      Section 79, however, does not come within the language of the cases cited nor within the spirit controlling them. Its application to the case at bar is not for the purpose of divesting the state of any of its rights, but of preserving them.- The statute by its terms must relate to the state because it especially applies to criminal proceedings in which the state is necessarily a party. Chinn v. State, 47 Ohio St., 575; Bergin v. State, 31 Ohio St., 111.
    If the General Statutes, preserving rights to litigants, do not apply to the state, it is difficult to see why any general statute granting a right of providing a remedy should be deemed applicable to the state. If such a rule of construction should obtain the state could not claim interest upon past due obligations; it could not invoke the statute of limitations; it would have no power to review judgments in civil cases in reviewing courts; and perhaps no power to commence any but a certain few civil actions especially provided for. To say that the state can not have the advantage of its own general legislation is to assert a new doctrine which we believe is without the 'support of any of the authorities. ■
    It must be borne in mind, as has already been determined by this court, that the direct inheritance tax is levied upon the succession to property. The right of the successor inures upon the death of the ancestor. Executors of Eury v. State, 72 Ohio St., 448.
    The succession being upon the death of the ancestor and the tax being upon the succession, it must follow that the tax attaches upon the death of the owner.
    It seems manifest therefore that upon the death of the owner of the property the tax upon the succession-attaches and immediately becomes due and payable. If the tax is due and payable and unpaid the -relations of the state and the parties in interest would seem to create a cause of action within every definition of “cause of action” ever given. Unquestionably upon the death of the owner of the property a right is created in favor of the state. To enforce these rights the state certainly has ample remedy through causes of proceeding. To be sure, the state can-not immediately collect a certain determined amount of money because the amount “due and payable” is riot yet ascertained, and can not be ascertained until the probate court has acquired jurisdiction over the property. The first cause of proceeding existing in favor of the state therefore arises upon the death of the owner, and that is the right of the state to compel administration. After this' the state has a cause of proceeding to compel the making of the special inventory required by Section 9 of the direct inheritance tax law. It’has a further cause of proceeding-in its power to compel the probate court to determine the amount of the tax owed. These various causes of proceeding are not only sufficient to determine the amount owing-the state, but are sufficient to compel the payment of the tax to the state. It is made the duty of the administrator or executor to pay the tax, and upon his refusal to perforin that duty, he may be removed frorn his trust and a new administrator may be appointed to perform the duties required by law. Section 6017, Revised Statutes.
    And when the funds are in the hands of the administrator he is subject, to the order of the court which may at any time require him by motion to pay out, such funds in satisfaction of preferred claims. The direct inheritance tax is a preferred claim. Section 1, Direct Inheritance Tax Law.
    The error in the position of those opposing the right of the state to collect accrued taxes lies in their failure to observe, that other ample remedies than that provided by Section 2 of the act itself are available to the state. The view of the defendants in error is that Section 2 merely imposes a new duty upon prosecuting attorneys and that any remedy afforded by that section is cumulative and not exclusive. This view seems to be justified by the fact that during the existence of the law the remedy provided by Section 2 has never been availed of by the state.
    Inasmuch as the tax is due and payable upon the death of the decedent, and an additional charge is levied upon the succession each month thereafter, it is difficult to see why both causes of action and causes of proceeding in favor of the state do not arise instanter upon the death of the decedent. Nor does any reason appear why such causes of action and causes of proceeding are not saved to the state by Section 79, Revised Statutes.
   Summers, J.

The question presented is the effect of the repeal of the inheritance tax law. The repealing, statute is as follows' (98 O. L., 229) “That the act entitled ‘An act to impose a tax upon the right to succeed to, or inherit property,’ passed April 25, 1904, 97 Ohio Laws, 398-400, be and the same are hereby repealed, except as to estates in which the inventory has already been filed at the date of the passage of this act.

“C. A. Thompson,
“Speaker of the House of Representatives.
“James H. Williams, “President pro tern, of the Senate.
“Passed April 2 ,1906.
“This bill was presented to the governor, April 3, 1906, and was not signed or returned to the house wheréin it originated within ten days after being so presented, exclusive of Sundays and the day said bill was presented, and was filed in the office of the secretary of state, April 16, 1906.
“Lewis B. Houck,
“Secretary to the Governor.”

Counsel agree that the exception is invalid, but from different motives. On the part of counsel for the plaintiffs it is contended that the exception being invalid, the right to the tax expired with the repeal, while on the part of the defendants the contention is that the exception being unconstitutional, the whole act is void, and the inheritance law is still in force, or, if only the exception is void, that a retrospective operation by the statute is saved by Section 79, Revised Statutes, which is to the effect that a repeal shall not affect causes of action, prosecutions or proceedings, existing at the time of such repeal, unless otherwise expressly provided in the repealing act.

In State of Ohio, ex rel., v. Ferris, 53 Ohio St., 314, the first inheritance tax law of this state was held'unconstitutional on the ground of inequality in its exemptions and in the rate of the tax. If there must be equality in the law imposing the tax, upon what ground can it be given an unequal operation by an amendment or by an exception in a repealing statute. The constitutionality of a statute depends upon its operation and effect, and not upon the form it may be made to assume. State v. Hipp, 38 Ohio St., 199.

. The exception being void, the question arises whether the whole act must be declared unconstitutional. The rule of construction is that “where the void parts of a statute were evidently designed as a compensation for, or inducement to, the valid portions thereof, so that the whole' taken together warrants the belief that the legislature would not have passed the valid portions alone, the whole statute should be held inoperative.” State, ex rel., Walsh, and Walsh v. Dousman, 28 Wis., 541. The title of th'e act does not leave room for even suspicion that the exception was an inducement to the repeal.

The remaining question is as to the effect of Section 79, Revised Statutes. The general rule is that when an act of the legislature is repealed without a saving clause, it is considered, except as to transaction past and closed, as though it had never existed (Lewis’-. Sutherland on Statutory Construe-' tion, Section 282), and in Surtees and Another, Assignee, v. Ellison, 9 B. & C., 750, Lord Tenterden, C. J., says -that it must not be destroyed by indulging in conjectures as to the intention of the legislature. The rule is áncient and is grounded upon the presumed intention of the legislature, however, in nearly every state the rule has become largely inoperative because of general saving statutes, like our Section 79. Such statutes are to be given the same effect as a saving clause in the repealing statute unless a different intention is clearly apparent. Of course one legislature has no authority to make rules that are binding upon its successor, but the statutory rule evidently was suggested by experience, and from the generality of its adoption undoubtedly it is important, and in the absence in the repealing statute of any manifestation of a different intention perhaps a legal presumption arises that the legislature intended it to apply, but if a different intent appears in the repealing statute effect must be given to that intent notwithstanding the statutory rule. That the legislature intended that no inheritance tax should be collected after the repeal is necessarily implied by the exception and so Section 79 does not apply. It follows that the demurrers should have been overruled and the judgments are

Reversed.

Shauck, C. J., Price, Crew, Spear, and Davis, JJ., concur.  