In re Dewar's Estate

10 Mont. 426 | Mont. | 1891

De Witt, J.

We will examine the appellant’s position in the order above stated.

I. Appellant contends that the District Court did not obtain jurisdiction of the case until April 29, 1890, when the papers were ordered to be indorsed “Filed July 3, 1889,” and the case ordered onto the trial docket. It is not disputed that the papers in the ease were duly deposited with the clerk of the District Court, July 3, 1889. Appellant insists that they were not “filed” that day, but only on April 29,1890, and the court had no power to make the nunc pro tunc order. Appellant misapprehends the signification of the term “file.” To file papers is to deposit them with the proper custodian for keeping. The marking of them “filed” by the clerk is another matter, and is not the filing. (Tregambo v. Comanche M. & M. Co. 57 Cal. 501, citing, Engleman v. State, 2 Ind. 91; 52 Am. Dec. 494; Lamson v. Falls, 6 Ind. 309; and Bishop v. Cook, 13 Barb. 326. See, also, Harrison v. Clifton, 75 Iowa, 736; Holman v. Chevaillier, 14 Tex. 337; Smith v. Biscailuz, 83 Cal. 358; Howell v. Slauson, 83 Cal. 544; and Bouvier’s Law Dict. “File.”)

The order of the District Court of April 29, 1890, to indorse the papers is not of great importance in this inquiry. That did not constitute the papers “filed.” They were filed July 3, 1889, and the court finding them so filed, properly placed the case on the docket of the court and heard it. It was quite proper in the court to have the papers marked “filed” as of the day when they were filed, in order to preserve a memorandum of the fact.

The cases cited by appellant are not in point. (Raymond v. Smith, 1 Met. [Ky.] 65; 71 Am. Dec. 458; Metcalf v. Metcalf, 19 Ala. 319; 54 Am. Dec. 190; Hudson v. Hudson, 20 Ala. 364; 56 Am. Dec. 200.) These were all cases of an attempt to amend a record by entering a judgment nunc pro tunc, where the law required the solemnity of the record of a judgment, and nothing appeared in the record by which or upon which to amend. Mr. Justice Bach’s discussion of the proposition in Territory v. Clayton, 8 Mont. 1, not cited by appellant, is satisfactory to our mind. But the principle of these cases does not interest us in this inquiry. There was no question before the District Court of amending a record. . The presence or absence of the clerk’s indorsement on the papers was not conclusive. The indorsement was not a record, and ordering the case to be placed on the trial docket was not amending any record. We therefore find that the case was fully appealed from the Probate Court, and duly lodged in the District Court, prior to the admission of the State into the Union, and the abolition of the Probate Court.

Appellant argues from the Constitution (Sec. xx. Schedule, | 13) that only pending cases in the Probate Court were transferred to the District Court by virtue of said section 13, and that this was not a pending, but a determined case in the Probate Court at the time of the admission of the State. It is not pretended that the case was transferred to the District Court by virtue of the provisions of this section 13. It had fully and safely arrived in the District Court, and belonged to that court, four months before the section 13 began to operate. Nor does section 2 of the Schedule have the effect that appellant urges, viz., that the judgment of the Probate Court of May 13, 1889, was a lawful judgment of the Probate Court, in force at the time the State was admitted, and must therefore remain in full force. As we have above observed, when the State was admitted the case was wholly out of the Probate Court and wholly within the District Court. It had gained its new foothold long before its old one was swept away by the rising tide of the new order of things.

II. Concluding that the District Court had jurisdiction to hear the matter and pronounce the judgment, we will endeavor to ascertain whether its judgment was correct. It is not questioned that if the administrator’s fees are to be reckoned as provided in section 253, before amended, the cases appellant cites construing that statute are applicable. (Estate of Isaacs, 30 Cal. 113; Estate of Simmons, 43 Cal. 550; Estate of Ricaud, 70 Cal. 69.) But the point in controversy is whether the old law or the amendment must be invoked. Appellant insisting upon the former, relies largely upon section 276 of the Probate Practice Act, as follows: “ The executor or administrator, as soon as he has sufficient funds in his hands, must pay the funeral expenses, and the expenses of the last sickness, and the allowance made to the family of the decedent. He may retain in his hands the necessary expenses of administration,” etc. This section is identical with section 1646 of the California Code of Civil Procedure, which section the Supreme Court of that State construes to mean, that the administrator’s fees shall be ascertained, allowed, and paid only upon his final accounting and settlement. (Estate of Miner, 46 Cal. 564; Estate of Barton, 55 Cal. 90; Estate of Rose, 80 Cal. 180; Ord v. Little, 3 Cal. 287. See, also, 2 Wcerner’s Law of Administration, § 533.) Under that construction appellant’s fees were to be ascertained, allowed, and paid on April 11,1889. 0« that day the court allowing the fees goes to the statute for instruction, and finds the Act of September 14, 1887. But the administrator contends that when he was appointed, and for three and a half months out of twenty-two and a half months, during which he was administrator, the unamended section 253 was in force. To which contention the court applies the rule, that if a statute is amended it shall be understood in the same sense as if it had read from the beginning amended. (Surtess v. Ellison, 9 Barn. & C. 750; Peters v. Vawter, ante, p. 201.) (The exceptions to this rule by virtue of constitutional limitations will be considered below.)

Under the general rule, then, it is unhesitatingly concluded, that the amended law must regulate the fees of the appellant. Whatever right appellant had to fees prior to September 14, 1887, was an unascertained, inchoate one. If, by virtue of his qualifying and performing a few acts while the old law was in force, his right to fees accrued and were to be settled upon the percentage allowed by that law, then it must also be true, that if he had resigned or died on September 13, 1887, before performing any labors, he or his estate would be entitled to all the fees provided by the old law. This absurdity is not contended for, yet it is as reasonable as the claim that, having performed the services, the fees must be reckoned by the provisions of a law in force when his administratorship commenced, but repealed before any fees were either due, payable, or to be ascertained. On the other hand, it is the law that appellant’s claim for fees being unsettled, unallowed, and inchoate, and the creature of the statute (§ 253), it fell with the law creating it. An exhaustive and learned discussion of this principle by Judge Cowan, citing and reviewing authorities, is found in Butler v. Palmer, 1 Hill, 324. (See, also, Van Inwagen v. Chicago, 61 Ill. 34.)

The legislature of Montana Territory then had the right, on September 14, 1887, to amend section 253, and diminish the fees to which appellant might become entitled at the end of his service, unless, on September 14, 1887, the claim 'of appellant was: (1) A contract; (2) a vested right; or (3) protected by the Act of Congress of the United States of July 30, 1886, commonly called the Restriction Act, the part of which material to this inquiry is as follows: “ That the legislatures of the Territories of the United States, now or hereafter to be organized, shall not pass local or special laws in any of the following enumerated cases; that is to say (among others), creating, increasing, or decreasing fees, percentage, or allowances of public officers during the term for which said officers are elected or appointed.” The Constitution of the State is not before us for construction, as this cause of action was perfected and the controversy arose under the territorial government.

Examining the above propositions, it is not necessary to indulge in any discussions upon the general doctrine that an officer’s claim to fees allowed by statute is not a contract. (See cases last cited, and People v. Devlin, 33 N. Y. 269; 88 Am. Dec. 377; Butler v. Pennsylvania, 10 How. 402; Hoke v. Henderson, 4 Dev. 1; 25 Am. Dec. 677; Connor v. Mayor etc. 5 N. Y. 285; Miller v. Kister, 68 Cal. 142. See, also, cases infra.) Nor is his claim to fees to be performed in the future a vested right. (Cases supra and infra.) But his claim to fees for services past, and wholly performed, upon a statutory fee bill, in force while he was performing those services, might be a vested right, of which the legislature could not deprive him by a law diminishing the fees theretofore fixed by the statute. But let us see in what position appellant stands to invoke this principle. Eor the first three and a half months of appellant’s administratorship, the old section 253 was in force; for the remaining nineteen months of his official relation to the estate, the amendment of September 14, 1887, was the law. (Except the period of the law of March 14, 1889, which we will advert to below.)

Appellant does not separate his services as to these two periods, and claim compensation upon services rendered in the three and a half months’ period under the old law, and upon those rendered in the nineteen months’ period under the amendment. If he did so, and claimed a higher percentage upon services fully performed and passed during the three and a half mouths’ period, the argument of vested right would address itself to us with some force. (People v. Pyper, Utah, Feb. 1, 1889.) Appellant does not claim that any services were fully performed in the short period, nor does the record disclose that he had so performed them at the close of this period, September 14, 1887, so that his fees could be ascertained thereon. He gave no data to the District Court by which his services could be classified into these respective periods, and made no demand for such segregation. On April 11, 1889, it did appear that his claim to fees had accrued since June 1, 1887. It did not appear that any of it had accrued prior to September 14, 1887. The District Court was therefore right in concluding that the services and conditions on which fees could be claimed arose subsequent to September 14, 1887, and properly, under the facts before the court, allowed the fees upon the basis provided in the act of that date.

The legislature seems to have never tired of passing acts upon this subject, and we are again confronted with their will as expressed in the Act of March 14,1889, going into effect April 1, 1889, by which act the fees of public administrators, and all other administrators, are placed at six per cent of the first thousand dollars, which is a reduction of one per cent on the thousand from the fees allowed by the Act of September 14, 1887. Appellant’s final account was rendered April 11, 1889. The question is presented, whether the Act of March 14, 1889, in force April 1, 1889, operates to reduce appellant’s claim one per cent on the first thousand dollars.

The record discloses that every act and service of the administrator was completed prior to April 1, 1889. All his services, as far as are concerned with the Act of March 14, 1889, come under the class of past services fully performed, the fees for which ware wholly earned under a former fee bill before the Act of March 14, 1889, was passed; his claim to which was therefore a vested and accrued right, with which the legislature could not interfere by that latter act. (People v. Pyper, supra, and cases cited in Supervisors v. Allen, 99 N. Y. 532, and cases supra and infra.)

Returning to the Restriction Act again, we have to observe, in order that the Restriction Act may protect appellant’s position, two facts must be found: First, that appellant in his claim for fees was a public officer; second, that the act diminishing the fees was a “local or special law.” If either of those propositions be found in the negative, the case is concluded. The Restriction Act did not forbid the legislature of the Territory from passing an act creating, increasing, or diminishing fees, percentages, or allowances of public officers during the term for which they were elected or appointed. It fell far short of the prohibitions of section 31, article v. of the Constitution, after-wards adopted by the people for the control of the legislature, and which inhibits the passing of any law increasing or diminishing the salaries or emoluments of a public officer after his election. The Restriction Act forbade only the passing of any local or special law upon the subject indicated. The only inquiry, therefore, before us is, whether the Act of September 14, 1887, was local or special. The operation of the act is not upon any particular person or officer, nor in any certain locality or localities in the Territory. It applies to all executors and administrators, public and private, throughout the Territory. What shadow or pretense of reason there is to pronounce this act local or special is not apparent to us. On the other hand, that it is not local or special seems to us perfectly clear, and so undisputably sustained by the decisions, that to discuss the proposition or review the cases would be an uninstructive compiling of elementary and well understood law. Suffice to refer to a few of the authorities: State ex rel. Van Riper v. Parsons, 40 N. J. L. 1; Wheeler v. Philadelphia, 77 Pa. St. 338; McAunich v. Mississippi etc. R. R. Co. 20 Iowa, 338; Haskel v. Burlington, 30 Iowa, 232; Iowa R. R. L. Co. v. Soper, 39 Iowa, 112; Little Rock etc. Ry. Co. v. Hanniford, 49 Ark. 291; Dow v. Beidelman, 49 Ark. 325; Montague v. State, 54 Md. 481; Abeel v. Clark, 84 Cal. 226; State v. Miller, 100 Mo. 439; Longan v. County of Solano, 65 Cal. 122; Brooks v. Hyde, 37 Cal. 366; Humes v. Missouri Pac. Ry. Co. 82 Mo. 221; 52 Am. Rep. 369; Skinner v. Bogert, 42 N. J. L. 407; Ewing v. Hoblitzelle, 85 Mo. 64; State v. Tolle, 71 Mo. 650; Darrow v. People, 8 Colo. 417; In re Church, 92 N. Y. 1; State v. Hawkins, 44 Ohio St. 98; and many cases in Sedgwick’s Statutory and Constitutional Law, pp. 534, 535, 539, notes.

The conclusion last stated is sustained by tbe authorities cited, and it is not at all shaken by the cases to which the appellant has referred us in his supplemental brief. The cases he there cites were decided upon facts different from those now under consideration, and the law, as in those cases declared, does not affect the conclusion we have reached.

The judgment of the District Court is affirmed,

Blake, C. J., and Habwood, J., concur.