Smith, C. J.,
delivered the opinion of the court.
This is an appeal to settle the principles of the case, and is from a decree overruling a demurrer to an original bill. The bill was filed by the attorney-general at the request of the state tax commission against the administrators and the administratrix of the estate of I. C. Enochs, deceased, in order to coerce them into the filing of a correct inventory of the estate, and to obtain a decree for the inheritance tax due on the value thereof under the provisions of chapter 109, Laws of 1918. The reporter will set out so much of the original bill as may be necessary for an understanding of this opinion. This is the second appearance of the cause in this court, as will appear from Enochs v. State, 128 Miss. 361, 91 So. 20, after the decision of which the statute was amended by chapter 130, Laws of 1922, so as to confer jurisdiction of the cause on the court below.
The contentions of counsel for the appellant to which it seems necessary for us to specifically respond may be stated as follows: (1) The estate of the decedent has been assessed by the state tax commission, which assesment is conclusive, and cannot again be inquired into; (2) the taxes assessed against the estate by the commission have been paid; (3) chapter 130, Laws of 1922, by which jurisdiction of causes of the character of the one here at bar is conferred upon the chancery court is void; (4) that the statutes under which the tax here sought to be collected violate sections 63, 64, 112, and 135 of the state constitution ; and. (5) section 2, article 4 of, and section 1 of the Fourteenth Amendment to, the federal constitution.
[141]*141In a discussion of all of the foregoing questions it must be borne in mind that the tax here sought to be collected is not on property, but on the transmission of property from the dead to the living, which the state may permit, forbid, or attach conditions thereto, at its pleasure. It is an excise and not a property tax.
1. The bill does not allege that the state tax commission has assessed the decedent’s property, but that a partial inventory thereof setting forth their estimate of its value was filed by the administrators with the tax commission. An assessment of property for an inheritance tax must be evidenced by an order or certificate of the tax commission, and none such is here alleged to have been made. Consequently the question of the commission’s power to reassess property does not here arise.
There having been no assessment of the decedent’s property the receipt by the state tax commission from the administrators of money admitted by the administrators to be due the state as taxes on the decedent’s estate is not conclusive of the amount of the tax that is in fact due thereon, for that can be ascertained only by an assessment of the property.
Where the state tax commission has certified the amount of the tax and accepted payment thereof such payment is made “conclusive as to the payment of the tax to the extent of said certification,” by section 29 of the statute here in question. But as the amount of the tax due on the -decedent’s estate had not been certified to by the commission, the payment made thereon does not come within this provision of the statute.
3. Two reasons seem to be assigned by counsel for appellant for the alleged invalidity of chapter 130, Laws of 1922. First, that the legislature cannot confer on the chancery court the power to assess property for taxes. And, second, that no notice is required to be given to the defendant either of the making of the assessment by the tax commission or of the entry of the decree by the chancery court.
[142]*142As hereinbefore pointed out the tax here is not on the property, the value of the property simply being one of the elements by which it is measured, so' that in determining the value of the property tke court is not making a technical assessment thereof, and it has never been doubted that the payment of privilege taxes can be enforced by the courts, although the fixing of the value of property is one of the elements for the determination of the amount of the tax.
We are not now called on to determine the meaning of that portion of the statute which provides that:
“The state tax commission, upon the filing of the defendant’s answer giving the necessary information prayed for, or upon the finding by the chancellor from the pleadings and proof, may proceed, under the direction of the court, at once to certify the proper amount of inheritance taxes shown by said discovery to be due; and upon the written certificate of the state tax commission in any su‘ch cause the court may, and is hereby given full jurisdiction to enter a personal decree, or decrees for the taxes so found to be due, and in addition to said personal decree may declare, adjudicate and foreclose the statutory lien given by other provisions of this act on the property of the estate.”
The statute is undoubtedly valid in so far as it confers power on the court to compel a discovery by the executor, administrator, or trustee of the decedent’s estate, and in event the provision which requires the court to enter a decree on the certificate of the tax commission is invalid, the remainder of the statute will not be affected thereby. It will be time enough to determine the validity of that provision of the statute when a trial court shall render a decree in accordance with it.
4. It is unnecessary for us to decide whether or not the provisions of the statute, which require the state treasurer to refund inheritance taxes erroneously paid without a special appropriation therefor being made by the legislature, violates sections 63 and 64 of the state constitution, for the reason that those provisions may be [143]*143eliminated from the statute if invalid, without affecting or destroying the remainder thereof. This is true, not only under the general rule governing the unconstitutionality of a portion of a statute which can be segregated from the remainder, hut is especially required by section 34 of the statute itself.
The alleged violation of section 112 of the state constitution by the statute is based on the provision in section 2 of the statute, which requires that in valuing the estate on which the tax is to be assessed there shall be included therein “all gains made during the settlement of the estate in reducing the intangible personal property to possession,” etc. The contention is that the property of a decedent vests in his heirs, distributees, devisees, or legatees immediately on his death, and that therefore to the extent that accretions to the property after death are included in the value on which the tax is computed, to that extent the tax is on property, and not on the right to transmit and receive it. The settlement of the estate here contemplated is that by an administrator or executor, and when there is any necessity for an administration of an estate of a decedent, the property composing the estate does not fully vest in those persons entitled to receive it, because of the decedent’s death, until the administration has been closed. The value of the property is one of the elements for measuring the tax, and the inclusion therein of the value of accretions thereto' before it fully vests in the distributees is merely a condition attached to the right to receive it, and is in no way a tax on the property itself.
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Smith, C. J.,
delivered the opinion of the court.
This is an appeal to settle the principles of the case, and is from a decree overruling a demurrer to an original bill. The bill was filed by the attorney-general at the request of the state tax commission against the administrators and the administratrix of the estate of I. C. Enochs, deceased, in order to coerce them into the filing of a correct inventory of the estate, and to obtain a decree for the inheritance tax due on the value thereof under the provisions of chapter 109, Laws of 1918. The reporter will set out so much of the original bill as may be necessary for an understanding of this opinion. This is the second appearance of the cause in this court, as will appear from Enochs v. State, 128 Miss. 361, 91 So. 20, after the decision of which the statute was amended by chapter 130, Laws of 1922, so as to confer jurisdiction of the cause on the court below.
The contentions of counsel for the appellant to which it seems necessary for us to specifically respond may be stated as follows: (1) The estate of the decedent has been assessed by the state tax commission, which assesment is conclusive, and cannot again be inquired into; (2) the taxes assessed against the estate by the commission have been paid; (3) chapter 130, Laws of 1922, by which jurisdiction of causes of the character of the one here at bar is conferred upon the chancery court is void; (4) that the statutes under which the tax here sought to be collected violate sections 63, 64, 112, and 135 of the state constitution ; and. (5) section 2, article 4 of, and section 1 of the Fourteenth Amendment to, the federal constitution.
[141]*141In a discussion of all of the foregoing questions it must be borne in mind that the tax here sought to be collected is not on property, but on the transmission of property from the dead to the living, which the state may permit, forbid, or attach conditions thereto, at its pleasure. It is an excise and not a property tax.
1. The bill does not allege that the state tax commission has assessed the decedent’s property, but that a partial inventory thereof setting forth their estimate of its value was filed by the administrators with the tax commission. An assessment of property for an inheritance tax must be evidenced by an order or certificate of the tax commission, and none such is here alleged to have been made. Consequently the question of the commission’s power to reassess property does not here arise.
There having been no assessment of the decedent’s property the receipt by the state tax commission from the administrators of money admitted by the administrators to be due the state as taxes on the decedent’s estate is not conclusive of the amount of the tax that is in fact due thereon, for that can be ascertained only by an assessment of the property.
Where the state tax commission has certified the amount of the tax and accepted payment thereof such payment is made “conclusive as to the payment of the tax to the extent of said certification,” by section 29 of the statute here in question. But as the amount of the tax due on the -decedent’s estate had not been certified to by the commission, the payment made thereon does not come within this provision of the statute.
3. Two reasons seem to be assigned by counsel for appellant for the alleged invalidity of chapter 130, Laws of 1922. First, that the legislature cannot confer on the chancery court the power to assess property for taxes. And, second, that no notice is required to be given to the defendant either of the making of the assessment by the tax commission or of the entry of the decree by the chancery court.
[142]*142As hereinbefore pointed out the tax here is not on the property, the value of the property simply being one of the elements by which it is measured, so' that in determining the value of the property tke court is not making a technical assessment thereof, and it has never been doubted that the payment of privilege taxes can be enforced by the courts, although the fixing of the value of property is one of the elements for the determination of the amount of the tax.
We are not now called on to determine the meaning of that portion of the statute which provides that:
“The state tax commission, upon the filing of the defendant’s answer giving the necessary information prayed for, or upon the finding by the chancellor from the pleadings and proof, may proceed, under the direction of the court, at once to certify the proper amount of inheritance taxes shown by said discovery to be due; and upon the written certificate of the state tax commission in any su‘ch cause the court may, and is hereby given full jurisdiction to enter a personal decree, or decrees for the taxes so found to be due, and in addition to said personal decree may declare, adjudicate and foreclose the statutory lien given by other provisions of this act on the property of the estate.”
The statute is undoubtedly valid in so far as it confers power on the court to compel a discovery by the executor, administrator, or trustee of the decedent’s estate, and in event the provision which requires the court to enter a decree on the certificate of the tax commission is invalid, the remainder of the statute will not be affected thereby. It will be time enough to determine the validity of that provision of the statute when a trial court shall render a decree in accordance with it.
4. It is unnecessary for us to decide whether or not the provisions of the statute, which require the state treasurer to refund inheritance taxes erroneously paid without a special appropriation therefor being made by the legislature, violates sections 63 and 64 of the state constitution, for the reason that those provisions may be [143]*143eliminated from the statute if invalid, without affecting or destroying the remainder thereof. This is true, not only under the general rule governing the unconstitutionality of a portion of a statute which can be segregated from the remainder, hut is especially required by section 34 of the statute itself.
The alleged violation of section 112 of the state constitution by the statute is based on the provision in section 2 of the statute, which requires that in valuing the estate on which the tax is to be assessed there shall be included therein “all gains made during the settlement of the estate in reducing the intangible personal property to possession,” etc. The contention is that the property of a decedent vests in his heirs, distributees, devisees, or legatees immediately on his death, and that therefore to the extent that accretions to the property after death are included in the value on which the tax is computed, to that extent the tax is on property, and not on the right to transmit and receive it. The settlement of the estate here contemplated is that by an administrator or executor, and when there is any necessity for an administration of an estate of a decedent, the property composing the estate does not fully vest in those persons entitled to receive it, because of the decedent’s death, until the administration has been closed. The value of the property is one of the elements for measuring the tax, and the inclusion therein of the value of accretions thereto' before it fully vests in the distributees is merely a condition attached to the right to receive it, and is in no way a tax on the property itself. As the tax in none of its aspects is on property, but on the transmission of property from the dead to the living, section 112 of the constitution is in no way violated.
The implied requirement of section 135 of the state constitution that taxes shall be assessed by the assessor and collected by the sheriff, one of whose duties is to collect taxes (as heretofore construed by this court), has no application to privilege taxes, but only to such as can only be fixed by an assessment of, and is primarily a [144]*144charge against, property. State v. Adler, 68 Miss. 487, 9 So. 645; Thibodeaux v. State, 69 Miss. 683, 13 So. 352.
The legislature may, but it need not, provide that the amount of an inheritance tax shall be determined by the value of the decedent’s estate, and the nature of such a tax and the power of the legislature to deal therewith is in no way qualified by the particular standard which the legislature adopts for ascertaining the amount of the tax.
5. The appellee’s claim that sections 1 and 5 of the statute violates article 4, section 2 of, and section 1 of the Fourteenth Amendment to, the federal constitution, is predicated upon the classification by the residence of the decedent of a portion of the property therein subjected to the tax, that is to say, on the exception therein of certain property of nonresidents from the tax, on the granting of an exemption from the tax to residents greater than that granted to nonresidents, and on the difference between the provision for ascertaining the amount of the tax due bv nonresidents, and that for ascertaining the amount due by residents. This classification, it will be observed’ is not based on citizenship, but on residence, and embraces all who come within it, whether citizens of this state or of other states. Citizenship is synonymous with domicile, but not with residence, and a person may be a resident of one state and a citizen of another. La Tourette v. McMaster, 248 U. S. 465, 39 Sup. St. 160, 63 L. Ed. 362; Alston v. Newcomer, 42 Miss. 186; Morgan v. Nunes, 54 Miss. 308; Bowers v. Ross, 55 Miss. 213; Brown v. Crane, 69 Miss. 678, 13 So. 855; 11 Corpus Juris, 776, and authorities there cited.
The classification of property subject to an inheritance tax by the residence of the decedent is substantially different from a classification thereof by the citizenship of the decedent, and therefore does not violate the privileges and immunities provision of article 4 of the federal constitution, nor deprive any person of property without due process of law, nor deny to any person the equal protection of the law.
[145]*145The equal protection of the laws provision of the federal constitution qualifies the power of a state to grant, withhold, or attach conditions to the passing of property from the dead to the living, to the extent only that all property similarly situated shall be dealt with alike. Both of the last two foregoing questions were decided in accordance herewith by the supreme court of the United States in Maxwell v. Bugbee, 250 U. S. 525, 40 Sup. Ct. 2, 63 L. Ed. 1124, which case we do not understand to have been overruled but qualified by Travis v. Yale & Mfg. Co., 252 U. S. 60, 40 Sup. Ct. 228, 64 L. Ed. 460.
Affirmed and remanded, with leave to the appellants to answer within thirty days of the filing of the mandate in the court below.
Affirmed and remanded.