Malin v. La Moure Cnty.

• Decision Date: 14 February 1914
• Citation: 27 N.D. 140,145 N.W. 582
• Parties: MALIN et al. v. LA MOURE COUNTY (STATE TAX COMMISSION, Intervener).
• Court: North Dakota Supreme Court

27 N.D. 140

145 N.W. 582

MALIN et al.

v.LA MOURE COUNTY (STATE TAX COMMISSION, Intervener).

Supreme Court of North Dakota.

Feb. 14, 1914.

Syllabus by the Court.

Chapter 119 of the Laws of 1909, which is entitled “An act to amend section 2589 of the Revised Codes of 1905, relating to the fees of county court,” and which provides for an initial fee of $5 and an additional charge of $5 for each and every $1,000, or fraction thereof, in excess of the first $1,000 on the value of the estates, to be paid by the petitioner for letters testamentary, of administration, or of guardianship, is unconstitutional, in so far as the additional charge or fee of $5 for each and every $1,000, or fraction thereof, in excess of the first $1,000 is concerned, and violates section 11, art. 1, of the Constitution of North Dakota, which provides that “all laws of a general nature shall have a uniform operation,” section 22, art. 1, which provides that “all courts shall be open, and every man for any injury done to 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,” section 61, art. 2, which provides that “no bill shall embrace more than one subject, which shall be expressed in its title,” etc., section 175, art. 11, which provides that “no tax shall be levied except in pursuance of law, and every law imposing a tax shall state distinctly the object of the same, to which only it shall be applied,” and section 176, art. 11, which provides that “laws shall be passed taxing by uniform rule all property according to its true value in money.” The same is true of section 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 the fee or charge of $5 for each and every $1,000, or fraction thereof, in excess of the first $1,000 is concerned. Chapter 66 of the Laws of 1903 and section 2071 of the Revised 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.

The fees or charges provided for in chapter 119 of the Laws of 1909 are not inheritance taxes or analogous thereto. An inheritance tax is a tax or charge upon the privilege of succeeding to or inheriting property, and is paid out of that which is inherited, while the charges in question are levied, not only upon the estate as a whole, whether solvent or insolvent, but upon the estates of wards and incompetents.

Such charges cannot be regarded as mere court costs, as they are in no way proportionate to or based upon the work performed or the services rendered.

They are taxes upon property rather than taxes upon or charges for a privilege. As such they are invalid, as they are not levied according to the true value of such property, or to the uniform rule which is adopted in regard to similar property.

Section 22, art. 1, of the Constitution of North Dakota, which provides that “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,” is aimed, not merely against bribery and the direct selling of justice by magistrates and officials, but against the imposition of unreasonable restraints upon and charges for the use of the courts.

Such charges, having in the case at bar been demanded of the plaintiff by an officer acting under color of law, and for public services which the plaintiff was entitled to have performed, and having been paid under written protest and under circumstances where injury to the estate and to third parties would have resulted from a refusal to pay such fees and a resort to legal remedies to compel the performance of the official duties, were paid under compulsion and duress, and can be recovered from the county upon a proper showing being made.

Where a part of a statute is unconstitutional, that fact does not require 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 together in meaning that it cannot be presumed the Legislature would have passed the one without the other.

A requirement for reasonable court fees will be sustained, and is not unconstitutional as being a denial or sale of justice, provided that the fee is reasonable, is uniform in its application, and has some reasonable connection with the services rendered. The portions of the statute before considered, therefore, which provide for an initial fee of $5, and for the expenditures for publishing and sending out notices, are valid, and are sustained.

Appeal from District Court, La Moure County; Coffey, Judge.

Action by A. B. Malin and another, as administrators, etc., against the County of La Moure, in which the State Tax Commission intervened. From a judgment for plaintiffs, defendant appeals. Affirmed.

The plaintiffs herein, as administrators of the estate of Gottlieb J. Dobler, deceased, paid under protest to the county treasurer of La Moure county the statutory probate fees amounting in the case to $335, and prescribed by section 2589, R. C. 1905, as amended by chapter 119 of the Laws of 1909, and thereafter brought this action in the district court of La Moure county to recover the sum so paid, alleging in their complaint that the act under which the same was paid was unconstitutional. A demurrer was interposed to the complaint, and overruled. From the order overruling this demurrer, this appeal is taken.

Chapter 119 of the Laws of 1909 reads as follows: “An act to amend section 2589 of the Revised Codes of 1905, relating to the fees of county court. Be it enacted by the Legislative Assembly of the State of North Dakota: Sec. 1. Amendment.-Section 2589 of the Revised Codes of 1905 of the state of North Dakota is hereby amended to read as follows: Sec. 2589. County to be Reimbursed-How.-For the purpose of reimbursing the county for the salaries provided in the foregoing sections to be paid the judges of county courts, each petitioner for letters testamentary, or administration or guardianship, before filing the same in the county court, shall pay or cause to be paid into the county treasury, for the use and benefit of the county in whose county court proceedings are to be instituted to settle the estate of a deceased person or for the appointment of a guardian, the sum of five dollars, and when the value 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 five dollars 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, and in all cases in addition thereto, all sums necessarily expended in publishing or serving notices required by law. In all civil and criminal actions the same fees and costs shall be paid as in like actions in the district court, the same to be paid to the clerk of the county court, a record to be kept thereof and the same turned over by him to the county treasurer.”

Section 2589 of the Revised Codes of 1905, which chapter 119 of the Laws of 1909 amends, is as follows: “An act to amend section 2071 of the Revised Codes of 1899, relating to reimbursing counties for salaries paid to judges of county courts. Be it enacted by the Legislative Assembly of the State of North Dakota: Sec. 1. Amendment.-Section 2071 of the Revised Codes of 1899, relating to reimbursing counties for salaries paid to judges of county courts, is hereby amended so as to read as follows: Sec. 2071. County to be Reimbursed-How.-For the purpose of reimbursing the county for the salaries provided in the foregoing sections to be paid to the judges of the county courts, each petitioner for letters testamentary, of administration or guardianship, before filing the same in the county court, shall pay or cause to be paid into the county treasury, for the use and benefit of the county in whose county court proceedings are to be instituted to settle the estate of any deceased person, or for the appointment of a guardian, a sum of money according to the value of the estate of such deceased person, or of such ward, as appears from the sworn statement in the petition of such applicant: Five dollars when the value of the estate does not exceed one thousand dollars; five dollars additional for each and every one thousand dollars additional value thereto; and in all cases in addition thereto, all sums necessarily expended in publishing or serving notices required by law. In all civil and criminal actions the same fees and costs shall be paid as in like actions in the district court, the same to be paid to the judge of the county court, a record to be kept thereof and the same turned over by him to the county treasurer.”

Section 2071 of the Revised Codes of 1899, which is amended by chapter 66 of the Laws of 1903, is but a restatement of section 4 of chapter 50 of the Laws of 1890, which section is as follows: “Section 4. How County Treasurer to be Reimbursed.-For the purpose of reimbursing the county treasurer for the salaries provided in the foregoing sections to be paid to the judges of the county courts, each petition for letters testamentary, administration or of guardianship, before filing the same in the county court, shall pay or cause to be paid into the county treasury, for the use and benefit of the...