The laws of Louisiana impose a tax of ten percent upon what an
heir, legatee, or donee may receive upon the succession to an
estate of a person deceased, where such heir, legatee, or donee is
not domiciliated in Louisiana and is not a citizen of any state or
territory of the Union. They also provide that the executor &c.
shall pay the tax.
Where the state court decided that this tax was properly imposed
upon the succession accruing to persons who were born in France,
had always lived in France, without ever having been in Louisiana,
this is not such a decision as can be reviewed by this Court under
the 25th section of the Judiciary Act.
No question was made in the court below that these laws
conflicted with any provision of the Constitution of the United
States. In a petition for rehearing, several grounds were alleged
as reasons for granting it, but the record does not show why the
court refused it.
Page 59 U. S. 193
The case is stated in the opinion of the Court.
Page 59 U. S. 194
MR. JUSTICE McLEAN delivered the opinion of the Court.
The Treasurer of the State of Louisiana instituted a suit in the
Second District of New Orleans, claiming, in behalf of the state, a
tax of ten percent on the amount of the succession of Benjamin
Poydras de la Lande, inherited by persons alleged to be citizens
and residents of France.
This tax was claimed by virtue of two acts of the Legislature of
Louisiana, one passed on the 26th of March, 1842, which
"That each and every person not being domiciliated in this state
and not being a citizen of any state or territory of the Union, who
shall be entitled -- whether as heir, legatee, or donee -- to the
whole or any part of the succession deceased, whether such person
shall have died in this state or elsewhere, shall pay a tax of ten
percent on all sums, or on the value of all property which he may
actually receive, or so much thereof as is situated in this
The 76th section of the Act of March 21, 1850, provides that
"Every executor, curator, tutor or administrator having the
charge or administration of succession property belonging in whole
or in part to a person residing out of this state and not being a
citizen of any other state or territory of the United States, shall
be bound to retain in his hands the amount of the tax imposed by
law and to pay over the same to the state treasurer."
Benjamin Poydras, an old and wealthy naturalized citizen of
Louisiana, having died in 1851, in France, leaving a widow and
three minor children in that country, the Treasurer of the State of
Louisiana filed, on the 27th of February, 1852, a petition in the
Second District Court of New Orleans against the widow, as tutrix
of her minor children, claiming ten percent on the amount of the
property left by the deceased in Louisiana. The grounds for this
claim, as alleged in the petition, are "that the said tutrix, as
well as her said minor children, are all citizens of France, and
reside in that country."
Page 59 U. S. 195
The answer of the defendants denied their liability for the
payment of the tax, alleging that they were citizens of the State
of Louisiana, legally domiciliated therein. The lower court gave
judgment for the state, which judgment, on appeal, was affirmed by
the supreme court of the state.
This being a writ of error under the 25th section of the
Judiciary Act of 1789, the defendant in error insists that there is
no jurisdiction. That section provides, that on
"a final judgment or decree in any suit in the highest court of
law or equity in which a decision in the suit could be had, where
is drawn in question the validity of a treaty or statute of, or an
authority exercised under, any state, on the ground of their being
repugnant to the Constitution or laws of the United States and the
decision is in favor of such their validity, may be re examined,
and reversed or affirmed in the Supreme Court of the United States
upon a writ of error."
In the petition, the respondents are alleged to be citizens and
residents of France. In their answer they allege that the deceased,
in the year 1804, settled in Louisiana and became a citizen of the
United States, and maintained his residence and citizenship in
Louisiana; that his last visit to France was intended to be
temporary, but he was involved in law suits in that country for
years, though he intended to return to Louisiana and would have
done so had he not died. During his absence, he acquired a large
amount of property in Louisiana, and he continued to express his
determination to return to that country during his life. And they
alleged that they were citizens of the State of Louisiana.
In the final judgment in the lower court, the judge said:
"The deceased was a French subject who was born and did in
France, and his heirs, now residents and natives of France who have
never been in this state, claim his estate. It appears to me that
they came within the purview of the act of 1842."
A judgment for $45,208.80 and costs of suit was entered against
the defendants. An appeal was taken to the supreme court of the
state, where the judgment of the inferior court was affirmed.
It does not appear from the pleadings and procedure in the
inferior or in the supreme court that the question was made whether
the acts of 1842 and 1850 were in conflict with any provision of
the Constitution of the United States.
The supreme court held that the tax in question "attaches not
only to property falling to alien heirs who are nonresidents, but
also to the property falling to citizens of our own state residing
abroad." And they say the object of the law is to discourage
absenteeism. The court held that neither the act of
Page 59 U. S. 196
1842 nor that of 1850 is repugnant to the 187th article of the
constitution of the state of 1845.
Up to the final judgment in this case in the Supreme Court of
Louisiana, no question was raised by the counsel nor decided by the
court involving the constitutionality of either of the acts before
us under the Constitution of the United States. Indeed, this is not
asserted by the counsel, but it is contended that such a question
was raised and decided on the petition for a rehearing. If this
were admitted, does it bring the case within the 25th section? It
must appear from the record that one or both the acts referred to
are not only repugnant to some provision of the Constitution of the
United States, but that the point was presented to the court and it
decided in favor of the unconstitutional act or acts.
The points which the defendants requested the court to review
1. That a citizen of Louisiana, whether native or naturalized,
who absents himself, even for temporary purposes, from the state
for more than two years thereby loses his domicile and residence,
and is bound to pay to the state ten percent on any inheritance,
legacy, or donation to which he may be entitled as intestate or
under a will if the estate of which he is heir and legatee is
opened in the state after his aforesaid absence of more than two
years, but that he would not be liable to this tax if during his
absence he had become a citizen of another state or territory of
2. That the Act of March 26, 1842, which establishes the tax of
ten percent upon foreign nonresident heirs, is not contrary to the
12th article of the Constitution of 1845.
3. That Benjamin Poydras, by his prolonged residence in France
during the latter part of his life, had lost his domicile in
In neither of the above grounds is there an intimation of any
conflict with the federal Constitution in the decision. Whether
there was a repugnancy between the tax acts and the state
constitution is a matter which belongs exclusively to the state
The court refused the rehearing, on what ground does not
This Court can exercise no appellate power over the supreme
court of a state except in a few specified cases, and the ground of
jurisdiction must be stated with precision, and the ruling of the
court to bring the case under the 25th section must appear on the
record to have been against the right claimed. Any reason assigned
for a rehearing or a new trial is not sufficient.
The case is dismissed for want of jurisdiction.