Malin v. County of Lamoure
145 N.W. 582
N.D.
1914
Check Treatment
Bruce, J.

(after stating the facts as above).

The statute under consideration was adopted from Minnesota in 1890. Prior to its adoption by us, however, and in April 1889, it was declared invalid by the Minnesota courts. See State ex rel. Davidson v. Gorman, 40 Minn. 232, 2 L.E.A. 701, 41 N. W. 948. If the rule, were followed that a statute is presumed to have been adopted with the construction placed upon it by the state of its origin, the statute would have been stillborn in North Dakota. We are perfectly satisfied, however, that the North Dakota legislature had no knowledge of the Minnesota case. Since the decision of the Minnesota case, similar if not identical statutes, and under similar if not identical constitutional provisions, have been passed upon and declared invalid by the supreme courts of California, Washington, Minnesota, Illinois, Wisconsin and Missouri. See Fatjo v. Pfister, 117 Cal. 83, 48 Pac. 1012; State ex rel. Nettleton v. Case, 39 Wash. 177, 1 L.E.A.(N.S.) 152, 109 Am. St. Eep. 874, 81 Pac. 554; State ex rel. Mann v. Brophy, 38 Wis. 413; State ex rel. Sanderson v. Mann, 76 Wis. 469, 45 N. W. 526, 46 N. W. 51; Cook County v. Fairbank, 222 111. 578, 78 N. E. 895; Mearkle v. Hennepin County, 44 Minn. 546, 47 N. W. 165; State ex rel. Garth v. Switzler, 143 Mo. 287, 40 L.E.A. 280, 65 Am. St.'Eep. 653, 45 S. W. 245. See also 37 Cyc. 713, and cases cited. In, fact, we have yet to find a single instance in which a similar statute has been upheld, either in the adjudicated cases or the dicta of the text writers.

The conclusion of these authorities, indeed, is that the charges, being *150arbitrary, and not in any manner proportionate to the work done, are taxes, and not fees. As taxes they are held to be taxes upon property, rather than taxes upon a privilege, and therefore void because not imposed by uniform rule according to the true value in money.

If the charges could be looked upon in the nature of inheritance taxes, they could -perhaps be sustained, but they are not inheritance taxes, as an inheritance tax is a tax upon the privilege of succeeding to or inheriting property, and is paid not out of the estate as a whole, but out of that part of it which is inherited. This is not the case with the present charge.' It is an ad valorem charge levied upon the estate, whether solvent or insolvent and is imposed not merely upon the estates of decedents, but upon the estates of minors and incompetents under guardianship. It is either, indeed, a tax upon property, or, if a tax or charge upon a privilege, a tax or charge upon the privilege of administering an estate or of enjoying the protection of the courts as a ward. “But the sums required by this act to be paid into the county treasury,” says the supreme court of Minnesota in State ex rel. Davidson v. Gorman, 40 Minn. 232, 2 L.R.A. 701, 41 N. W. 948, “must be regarded as taxes, in the ordinary sense.of that word, and as it is used in the Constitution. They are not in any proper sense fees or costs assessed impartially, or with regard to the expense occasioned or services performed. The amounts are regulated wholly, but arbitrarily, with regard to the value of the estate. They have no proximate relation to the amount of the compensation to be paid to the probate judge, nor to the other expenses of the court, nor to the nature or extent of the services which may become necessary in the proceedings. There is no necessary, natural, or even probable correspondence between the sums to be paid (widely different in amounts with respect to estates of different values) and the nature of the proceedings, or the character or extent of the services,' which may be required in the probate court. It cannot be assumed, upon any ground of probability, that these proceedings or services will be different or greater in the case of an estate of the value of more than $500,000 than in one of the value of from $35,000 to $50,000, — yet in the former case $5,000 must be paid, in the latter $100. . . . The purpose for which such payments are' required is strictly public in its nature, being directly . . . and indirectly for the support of a court established by the Constitution, with exclusive *151original jurisdiction in certain matters of great and general public concern. Nor is it practically optional with executors or administrators, or those interested in the settlement of the estates of deceased persons, as to whether they will pay these exactions or not. If the law is valid, payment is practically necessary in -the great majority of cases; and the mode adopted by the statute of securing payment by making that a condition precedent to the exercise of the functions of the probate court is as really compulsory, and perhaps as effectual in general, as the means generally employed to enforce the payment of taxes.” Again, in Fatjo v. Pfister, 117 Cal. 83, 48 Pac. 1012, we find the following: “It is perfectly plain that the legislature has attempted by that portion of § 1, above quoted, to levy a property tax upon all estates of decedents, infants, and incompetents. The ad valorem charge for filing the inventory is in no sense a fee, or compensation for the services of the officer, which are the same as respects this matter, in every estate, large or small. To call it a fee is a transparent, evasion. And it is not merely an inheritance tax, or at all analogous to an inheritance tax, as counsel would contend; for, in the first place, it applies not only to the estates of decedents, but also to the estates of minors and incompetents under guardianship; and, as to the estates, of decedents, it applies not to the distributable residue after payment of debts and expenses of administration, but to the whole body of the estate, and would be collectable, if the law were valid, from an insolvent estate, as well as from one of equal appraised value and- with no liabilities. As an attempt to levy a property tax, the act is in this particular invalid for several reasons; 1. It violates § 1 of article 13 of the Constitution, in imposing an extraordinary tax upon the property to which it applies, in addition to the equal and uniform tax to which alone all property in the state is liable. 2. The subject of the act is not expressed in its title, and is in no wise germane thereto — a violation of § 24 of article 4 of the Constitution, which requires that every act shall embrace but one subject, which subject shall be expressed in its title.”

We realize fully that reasonable court charges have generally been sustained by the authorities. We also realize that the creditor had little protection under the ancient law, and that it was only after many centuries that he could seek reimbursement from the estate of the deceased. See Pulliam v. Pulliam, 10 Fed. 53; Brown’s Bl. Com. pp. *152393, 394. We also realize that the property of the ward had originally but little protection. See Woerner, Am. Law of Guardianship, p. 3; 2 Bl. Com. 77. We realize, therefore, that both wards and creditors have privileges which formerly they did not enjoy; that is to say, the privilege of the use of the machinery of the county and probate courts for the protection of their property and property rights. We realize that the clause of the Magna Charta to the effect: "Nulli vendimus nulli negabimus aut differimus justitiam vel rectum ’’ and which we have paraphrased in our Constitution, § 22, article 1, into: “All courts shall be open, and any man for any injury done him in his lands, goods, person, or reputation shall have remedy by due process of law, and right and justice administered without sale, denial or delay,” has generally been construed not to prohibit the imposition of reasonable court costs, and was aimed rather against the selling of justice by magistrates themselves, — that is to say, bribery,-— than the imposition of reasonable fees. See Northern Counties Trust v. Sears, 30 Or. 388, 35 L.R.A. 192, 41 Pac. 931; Harrison v. Willis, 1 Heisk. 46, 19 Am. Rep. 604; Townsend v. Townsend, Peck (Tenn.) 15, 14 Am. Dec. 722. We are quite satisfied, however, that prior to the adoption of the North Dakota Constitution the meaning had extended its original boundary, and that the provisions which are to be found in the Constitutions of all of the states were aimed not merely against the selling of justice by the magistrates, but by the state itself; in-other words, that a free and reasonable access to the courts and to the privileges accorded by the courts, and without unreasonable charges, was intended to be guaranteed to everyone.

In answer, also, to the contention that the right of the creditor to participate in the estate by means of the machinery of the county court is a privilege which he did not originally enjoy, we may say that the right to redress in a very large number of cases may be equally considered so. Until the invention, indeed, of the writ of trespass upon the case in England, there were a very large number of wrongs for which no redress could be had in the courts. Such a fact, however, would, we believe, hardly justify an imposition of extra court costs or fees in such cases.

The petitioner, we believe, is, under any and all of the authorities, entitled to recover his money in the case at bar; that is to say, the amount paid in excess of the initial fee of $5 and the amount expended *153in publishing or serving notices. The fees in excess of these amounts, and which from the complaint we gather are all that are claimed in the action, were demanded of the plaintiff by an officer acting under color of law, and for public services which the plaintiff was entitled to have performed. The complaint discloses that they were paid under written protest, and under circumstances and at a state of the proceedings when a refusal to pay them and a resort to compel the performance of the duties by legal proceedings and without such payment, would have involved a delay which would have been injurious both to the estate and the third parties. Under such a condition of affairs, the payment was involuntary, and not voluntary. Mearkle v. Hennepin County, 44 Minn. 546, 47 N. W. 165; State ex rel. McCardy v. Nelson, 41 Minn. 25, 4 L.R.A. 300, 42 N. W. 548; Cook County v. Fairbank, 222 Ill. 578, 78 N. E. 895; Chicago v. Northwestern Mut. L. Ins. Co. 218 Ill. 40, 1 L.R.A.(N.S.) 770, 75 N. E. 803; Trower v. San Francisco, 152 Cal. 479, 15 L.R.A.(N.S.) 183, 92 Pac. 1025; Fatjo v. Pfister, 117 Cal. 83, 48 Pac. 1012; State ex rel. Nettleton v. Case, 39 Wash. 177, 1 L.R.A.(N.S.) 152, 109 Am. St. Rep. 874, 81 Pac. 554; State ex rel. Sanderson v. Mann, 76 Wis. 469, 45 N. W. 526, 46 N. W. 51; State ex rel. Mann v. Brophy, 38 Wis. 413; State ex rel. Garth v. Switzler, 143 Mo. 287, 40 L.R.A. 280, 65 Am. St. Rep. 653, 45 S. W. 245; Lewis v. San Francisco, 2 Cal. App. 113, 82 Pac. 1106; Mobile & M. R. Co. v. Steiner, 61 Ala. 559; St. Anthony & D. Elevator Co. v. Bottineau County (St. Anthony & D. Elevator Co. v. Soucie) 9 N. D. 346, 50 L.R.A. 262, 83 N. W. 212.

The judgment of the District Court is affirmed.

Supplemental Opinion.

Bruce, J.

The opinion which is filed in this case is a substituted opinion, the one first filed having been corrected so as to make it clear that only the fees and charges of $5 for each $1,000 or fraction thereof in excess of the first $1,000 come within the constitutional inhibitions, and are held to be illegally required. We have made this correction as the result of an intervening petition for rehearing which was filed by the tax commission as amicus curias. All that we strike out of the statute, in short, are the following words: “And when the *154value of said estate has been ascertained by the court, through the inventory and appraisement or upon hearing of same, as legally required, within thirty days after the issuance of letters testamentary, of administration or guardianship, the judge of said court shall require an additional fee to be paid from said estate into said county treasury, of $5 for each and every one thousand dollars or fraction thereof [in excess of the first one thousand dollars] of value therein found, as shown by said inventory and appraisement.” [Eev. Codes 1905, § 2589.] We find no fault with the remainder of the statute. We are quite satisfied, from the authorities and from an examination of the act, that the case is one in which the doctrine of “partial invalidity” may be applied, and that the clauses which are herein held invalid are not so essentially and inseparably connected in substance with the remainder of the act as to require a rejection of the whole statute. The rule is well established that where a part of a statute is unconstitutional, that fact does not authorize the courts to declare the remainder void also, unless all the provisions are connected in subject-matter depending upon each other, operating together for the same purpose, or otherwise so connected in meaning that it cannot be presumed that the legislature would have passed the one without the other. See Cooley, Const. Lim. 7th ed. 246; Hirschfeld v. McCullagh, 64 Or. 502, 127 Pac. 541, 130 Pac. 1131.

We are satisfied that the initial fee of $5, as well as the expenditures for publishing and sending out notices, can be sustained as reasonable court charges, being levied uniformly upon all estates. The right to ^require reasonable court fees, indeed, has been so generally conceded, \ that a discussion of the proposition hardly seems to be necessary. The | imposition of such fees is not a denial or sale of justice, provided that ‘j they are uniform, are reasonable, and have a reasonable relation to the services rendered. See Perce v. Hallett, 13 R. I. 364; Merrill v. Bowler, 20 R. I. 226, 38 Atl. 114; Northern Counties Trust Co. v. Sears, 30 Or. 388, 35 L.R.A. 192, 41 Pac. 931; State ex rel. Atty. Gen. v. First Judicial Dist. Judges, 21 Ohio St. 11; Lee County v. Abrahams, 34 Ark. 166; State ex rel. Williams v. Fogus, 19 Nev. 247, 9 Pac. 123; Comstock Mill & Min. Co. v. Allen, 21 Nev. 325, 31 Pac. 434; Baldwin v. Goldfrank, 88 Tex. 249, 31 S. W. 1064, affirming 9 Tex. Civ. App. 269; 26 S. W. 155; State ex rel. Atchison & N. R. Co. v. Lan*155-caster County, 4 Neb. 537, 19 Am. Rep. 641; State ex rel. Hamilton County v. Ream, 16 Neb. 681, 21 N. W. 398; Beebe v. Wells, 37 Kan. 472, 15 Pac. 565; State ex rel. Bell v. Frazier, 36 Or. 178, 59 Pac. 5.

Tbe same is true of § 2589, Rev. Codes 1905, being chapter 87 of the Laws of 1905, and of chapter 127 of the Laws of 1913, and in so far as tbe fee or charge of $5 for each and every $1,000 or fraction thereof in excess of tbe first thousand dollars is concerned. Chapter 66 of the Laws of 1903, and § 2071 of the Rev. Codes of 1899, being chapter 50 of the Laws of 1890, however, are invalid even as to the initial fee of $5, as such is not imposed upon all estates equally, but according to the value thereof. They are necessarily equally invalid as to the added fee of $5 for every $1,000 additional value. These acts are not strictly before us, but we mention the same in order that no confusion of administration may arise from this opinion.