Mr. Justice McReynolds
delivered the opinion of the Court.
Section 1087-1, Chapter 64ff, of the Wisconsin Statutes 1919, provides—
"A tax shall be and is hereby imposed upon any transfer of property, real, personal, or mixed . to any person . . , within the State, in the following cases, except as hereinafter provided:
"(1) When the transfer is by will or by the intestate laws of this State from any person dying possessed of the property while a resident of the State.
"(2) When a transfer is by will or intestate law, of property within , the State or within its jurisdiction and the decedent was a nonresident of the State at the time of his death.
"(3) When a transfer is of property made by a resident or by a nonresident when such nonresident's property is within this State, or within its jurisdiction, by deed, grant, bargain, sale or gift, made in contemplation of the death of the grantor, vendor or donor, or intended to take effect in possession or enjoyment at or after such death. Every transfer by deed, grant, bargain, sale or gift, made within six years prior to the death of the grantor, vendor or donor, of a material part of his estate, or in the nature of a final disposition or distribution thereof, ajid without an adequate valuable consideration, shall be construed to have been made in contemplation of death within the meaning of this section."
These provisions were taken from § 1, c. 44, Laws of 1903, except that the last sentence of subdiv. 3 (italicized) was added by c. 643, Laws of 1913.
Section 1087-2, c. 64ff, imposes taxes upon transfers described by § 1087-1 varying from one to five per centum, according to relationship of the parties, when the value is not above twenty-five thousand dollars. On larger ones the rates are from two to five times higher, with fifteen per centum as the maximum.
" Section 1087-5 [c. 64ff]. 1. All taxes imposed by this act shall be due and payable at the time of the transfer, except as hereinafter provided; arid every such tax shall be and remain a lien upon the property transferred until paid, and the person to whom the property is transferred and the administrators, executors, and trustees of every estate so transferred shall be personally liable for such tax until its payment."
Other provisions of c. 64ff provide for determination, assessment and collection of the tax. In the Revised Statutes of 1921 and 1925, c. 64ff became c. 72, and section numbers were changed — 1087-1 became 72.01, 1087-2 became 72.02, 1087-5 became 72.05, etc.
In Estate of Ebeling (1919), 169 Wis. 432, the court held: " Section 1087-1, Stats., as amended by c. 643, Laws 1913, which provides that gifts of a, material part of a donor's estate, made within six years prior to his death, shall be construed to have been made in contemplation of death so far as transfer taxes are concerned, constitutes a legislative definition of what is a transfer in contemplation of death, and not a mere rule of law making the fact of such gifts prima fade evidence that they were made in contemplation of death."
Estate of Stephenson, 171 Wis. 452, 459 — A gift of twenty-three thousand dollars constitutes a material part of an estate valued at more than a million dollars; also, gifts, by decedents in contemplation of death must be treated, for purposes of taxation, as part of their estates.
In re Uihlein's Will, 187 Wis. 101 — "As stated in the. Schlesinger case, the statute was enacted for the purpose of enabling the taxing officials of the State to make an efficient and practical administration of the inheritance tax law. . . . It is settled in this State that the tax attaches, not at thq date of the transfer of the gift, but at the date of the death of the donor. . . . Under our decisions the gifts that have been made within six years of the donor's death, together with the amount of the estate left by the donor at the time of his death, constitute his estate, and must be administered, so far as inheritance tax proceedings are concerned, as one estate. The tax does not attach and become vested in the State until the death of the donor. When the gift is made and the donee receives it, there is no certainty that' an inheritance tax will ever be levied upon the gift."
In the present cause the Milwaukee County Court found that Schlesinger died testate January 3, 1921, leaving ,a large estate; that within six years he had made four separate gifts, aggregating more than five million dollars, to his wife and three children; that none of these was really made in view, .anticipation, expectation, apprehension or contemplation of death. And it held that because made within six years before death these gifts "are by the express terms of § 72.01 [formerly § 1087-1], Clause (3), of the statutes subject to inheritance taxes, although not in fact made in contemplation of death." An appropriate order so adjudged. The executors and children appealed; the Supreme Court affirmed the order (184 Wis. 1); and thereupon they brought the matter here.
Plaintiffs in error maintain that, as construed and applied below, -the quoted tax provisions deprive them of property without due process of law, deny them the equal protection of the laws, and conflict with the Pourteenth Amendment.
The Supreme Court of the State said: "The tax in. question is not a property tax but a tax upon the right to receive property from a decedent. It is an excise law." " Such [legislative] intent was to tax only gifts made in contemplation of death. That is the only class created. The legislature says that all gifts made within six years of the donor's death shall be construed to be made in contemplation of death," [which means] " that they shall conclusively be held to. be gifts made in contemplation of death and shall fall within the one taxable class of gifts created by the legislature." " In our case the legislative intent we think is clear that the specified gifts were to be conclusively construed to be gifts in contemplation of death." "We agree with the applicants that the classification made will not support a tax as one on gifts inter vivos only. Under such taxation the classification is wholly arbitrary and void. We perceive no more reason why such gifts inter vivos should be taxed than gifts made within six years of marriage or any other event. It is because only one class of gifts closely connected with and a part of the inheritance tax law is created that the law becomes valid. Gifts made in contemplation of death stand in a class by themselves, and as such they are made a part of the inheritance tax law to the end that it may be effectively administered. We adhere to the ruling in the Ebeling case."
No question is made of the State's power to tax gifts actually made in anticipation of death, as though the property passed by will or descent; nor is there denial of the power of the State to tax gifts inter vivos when not árbitrarily exerted.
The challenged enactment plainly undertakes to raise a conclusive presumption that all material gifts within six years of death were made in anticipation of it and to lay a graduated inheritance tax upon them without regard to the' actual intent. The presumption is declared to be conclusive and cannot be overcome by evidence. It is no mere prima facie presumption of fact.
The court below declared that a tax on gifts inter vivos only could not be so laid as to hit those made within six years of the donor's death and exempt all others — this would be " wholly arbitrary." We agree with this view and are of opinion that such a classification would be in plain conflict with the Fourteenth Amendment. The legislative action here challenged is no less arbitrary. Gifts inter vivos within six years of death, but in fact made without contemplation thereof, are first conclusively presumed to have been so made without regard to actualities, while like gifts at other times are not thus treated. There is no adequate basis for this distinction. Secondly, they are subjected to graduated taxes which could not properly be laid on all gifts or, indeed, upon any gift without testamentary character.
The presumption and consequent taxation are defended upon the theory, that, exercising judgment and discretion, the legislature found them necessary in order to prevent evasion of inheritance taxes. That is to say, "A" may be required to submit to an exactment forbidden by the Constitution if this seems necessary in order to enable the State readily to collect lawful charges against " B." Rights guaranteed by the federal Constitution ,are not to be so lightly treated; they are superior to this supposed necessity. The State is forbidden to deny due process of law or the equal protection of the laws for any purpose whatsoever.
No new doctrine was announced in Stebbins v. Riley, 268 U. S. 137, cited by defendant in error. A classification for purposes of taxation must rest on some reasonable distinction: A forbidden tax. cannot be enforced in order . to facilitate the collection of one properly laid. Mobile, etc., R. R. v. Turnipseed, 219 U. S. 35, 43, discusses the doctrine of presumption.
The- judgment of the court below must be reversed. The cause will be remanded for further proceedings not inconsistent with this opinion.
Reversed
Mr. Justice Sanford concurs in the result;