Berryman v. Bowers

• Decision Date: 28 October 1926
• Docket Number: Civil 2416
• Citation: 31 Ariz. 56,250 P. 361
• Parties: CLAUDE S. BERRYMAN, as Clerk of the Superior Court of Maricopa County, State of Arizona, Appellant, v. J. D. BOWERS, as Administrator With the Will Annexed of the Estate of JENNIE M. CROW, Deceased, Appellee
• Court: Arizona Supreme Court

250 P. 361

31 Ariz. 56

CLAUDE S. BERRYMAN, as Clerk of the Superior Court of Maricopa County, State of Arizona, Appellant, v. J. D. BOWERS, as Administrator With the Will Annexed of the Estate of JENNIE M. CROW, Deceased, Appellee

Civil No. 2416

Supreme Court of Arizona

October 28, 1926

APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Affirmed.

Mr Arthur T. La Prade, County Attorney, and Mr. Gene S Cunningham, Deputy County Attorney, for Appellant.

Messrs Hayes, Stanford, Laney & Allee, for Appellee.

OPINION

ROSS J.

The plaintiff, Bowers, is the administrator of the estate of Jennie M. Crow, deceased, and the defendant, Berryman, is the clerk of the superior court of Maricopa county.

When the plaintiff filed his petition for letters of administration, he paid the clerk the sum of ten dollars as a filing fee. Later, the plaintiff prepared an inventory and appraisement of the estate of the decedent showing a total valuation of $5,616.02. The clerk refused to file such inventory and appraisement unless plaintiff paid him ten dollars more, claiming that the law (paragraph 3184, Civil Code) made it his duty to collect such additional sum, the appraisement being more than three thousand dollars and less than ten thousand dollars.

The plaintiff then brought this suit in mandamus to compel the defendant to file the inventory and appraisement, contending that one filing fee of ten dollars was all that could be lawfully demanded of him by the clerk for the performing of his official duties in connection with said probate proceeding. Upon a hearing, the writ of mandamus was issued directing the clerk to receive and file the inventory and appraisement without the payment of an additional fee of ten dollars.

The defendant has appealed. In his brief, he makes no assignment of error and only suggests that if the statute authorizing the clerk to collect sums in addition to the regular filing fee on estates of deceased persons is unconstitutional, as contended by plaintiff, it is incumbent on plaintiff to show that fact beyond a reasonable doubt.

The question involved is one of considerable public interest and should be decided so that not only the clerks of the superior courts of the state may know what they may legally collect, but that executors, administrators and guardians may know what may be legally demanded of them in the way of fees in probate proceedings. If the question were not of public interest, we should feel unobliged to review it in the absence of assignments of error.

The plaintiff contends that the statute, under which the clerk exacts payments in addition to the regular filing fee, is unconstitutional and void, in that it violates section 1, article 9, of the Constitution, providing for uniformity of taxation, and of section 13, part 2, article 4 thereof, providing that:

"Every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title. . . . "

The statute provides generally that a person making application for appointment as executor, administrator, or guardian shall pay, on the filing of petition therefor, ten dollars to the clerk, and if the estate is appraised for less than three thousand dollars such sum shall be in full of all fees, but if appraised for more than three thousand dollars and less than ten thousand dollars, ten dollars additional shall be paid and so on, the amount to be collected to be graded according to the valuation of the estate. In another part of the statute it is provided that the clerk shall, at the end of each calendar month, pay all sums collected by him to the county treasurer. Paragraph 3193, Civil Code.

Statutes of similar import but somewhat differently worded have been before the highest courts of the following states: North Dakota, Washington, California, Minnesota, Illinois, Montana and Wisconsin, and in all have been declared unconstitutional. Malin v. Lamoure County, 27 N.D. 140, Ann. Cas. 1916C 207, 50 L.R.A. (N.S.) 997, 145 N.W. 582; State v. Case, 39 Wash. 177, 109 Am. St. Rep. 874, 1 L.R.A....