Smith v. Carbon County

• Decision Date: 30 December 1936
• Docket Number: 5812
• Court: Utah Supreme Court
• Parties: SMITH v. CARBON COUNTY

63 P.2d 259

90 Utah 560

SMITH v. CARBON COUNTY

No. 5812

Supreme Court of Utah

December 30, 1936

Appeal from District Court, Seventh District, Carbon County; George Christensen, Judge.

Action by H. A. Smith against Carbon County. From a judgment of dismissal, plaintiff appeals.

REVERSED AND REMANDED, with directions.

H. A Smith, of Salt Lake City, for appellant.

Marl D Gibson, of Price, and Henry D. Moyle, of Salt Lake City, for respondent.

ELIAS HANSEN, Chief Justice. FOLLAND, EPHRAIM HANSON, MOFFAT, and WOLFE, JJ., concur.

OPINION

ELIAS HANSEN, Chief Justice.

This appeal is prosecuted by the plaintiff from a judgment dismissing his action against defendant. The action was dismissed after defendant's general demurrer to plaintiff's complaint had been sustained, and plaintiff refused to further plead. It is in substance alleged in the complaint which is here brought in question that on December 27, 1934, the executors of the last will and testament of Frank F. Fisk caused to be prepared an inventory and appraisement of decedent's estate showing that the same was appraised at the sum of $ 678,213.17; that on that date the executors presented such inventory and appraisement to the county clerk of Carbon county, Utah, and tendered to him the sum of $ 10 and requested that he file the inventory and appraisement; that the county clerk refused to file the same unless the sum of $ 1,331 be paid, that being the schedule of fees prescribed by R. S. Utah 1933, 28-2-2 that the executors being unable to continue the administration of the estate without filing the inventory and appraisement therein, paid to the county clerk the amount demanded; that of the amount so paid $ 1,321 thereof was paid under written protest; that a verified claim for the repayment of the $ 1,321 has been presented to the county commissioners of Carbon county, Utah; that they have disallowed the same upon the ground that the amount collected is the statutory fee fixed by R. S. Utah 1933, 28-2-2; that the claim for $ 1,321 has been assigned to plaintiff who is now the owner and holder thereof. The other allegations of the complaint need not concern us on this appeal, because the only question which divides the parties to this litigation is whether or not the Legislature within constitutional limitations was authorized to fix fees in the amounts prescribed by R. S. Utah 1933, 28-2-2.

Plaintiff contends that such provisions of the act as required payment of a fee for filing an inventory and appraisement in an estate in excess of $ 10 offends against article 13, sections 2, 3, and 5, and article 1, section 24, of the Constitution of Utah. The defendant contends to the contrary. That is the sole question presented for determination on this appeal.

The provisions of our State Constitution which are here relied upon by plaintiff read as follows:

Article 13, § 2: "All tangible property in the State * * * shall be taxed in proportion to its value, to be ascertained as provided by law."

Article 13, § 3: "The Legislature shall provide by law a uniform and equal rate of assessment and taxation on all tangible property in the State, according to its value in money, and shall prescribe by law such regulations as shall secure a just valuation for taxation of such property, so that every person and corporation shall pay a tax in proportion to the value of his, her, or its tangible property."

Article 13, § 5: "The Legislature shall not impose taxes for the purpose of any county, city, town or other municipal corporation, but may, by law, vest in the corporate authorities thereof, respectively, the power to assess and collect taxes for all purposes of such corporation."

Article 1, § 24: "All laws of a general nature shall have uniform operation."

The statutory provisions assailed by plaintiff on constitutional grounds read thus:

"For services performed in their respective offices, the officers named in this chapter shall collect in advance for the use and benefit of the county the fees hereinafter enumerated, and such other fees as may be provided by law." R. S. Utah 1933, 28-2-1.

"The county clerk shall receive the following fees: * * *

"For services in probate and guardianship proceedings up to and including the final settlement of the matter, except as herein otherwise provided, as follows:

"Where the value of the estate does not exceed $ 2,500, $ 10.

"Where the value of the estate exceeds $ 2,500 and does not exceed $ 5,000, $ 20.

"Where the value of the estate exceeds $ 5,000 and does not exceed $ 10,000, $ 35.

"Where the value of the estate exceeds $ 10,000 and does not exceed $ 20,000, $ 50.

"Where the value of the estate exceeds $ 20,000 and does not exceed $ 50,000, $ 75; and in cases where the value of the estate exceeds $ 50,000, $ 2 additional fee for each additional $ 1,000 value.

"The valuation herein mentioned shall be ascertained from the inventory filed, and the fees herein provided shall be collected at the time of filing such inventory." R. S. Utah 1933, 28-2-2.

The first question which presents itself for determination is: Do the various amounts enumerated in the foregoing schedule in excess of $ 10 constitute a fee or a tax? The mere fact that the Legislature has characterized them as fees is not controlling if the burden sought to be imposed on estates is devoid of the essential characteristics of a fee. The adjudicated cases define the fee of an officer as "reward or compensation allowed by law to an officer for specific services performed by him in the discharge of his official duties." 25 C. J. 1009, and cases cited in the footnote. If the amount required to be paid upon the filing of an inventory and appraisement to the county clerk may reasonably be said to be in payment for services rendered in probate proceedings, the objections to the act based upon article 13, sections 2, 3, and 5 of our State Constitution must fail. Best Foods, Inc., v Christensen, 75 Utah 392, 285 P. 1001. The converse is equally true; that is to say, if the amount required to be paid in a given case for filing an inventory and appraisement does not bear some reasonable relation to the extent and kind of services required to be performed, the money so required to be paid, no matter how it is characterized by the Legislature, may not be said to be a fee. Defendant does not contend to the contrary. It does contend that the services required from a clerk and judge in probate proceedings are, in the main, in proportion to the appraised value of the estate, that the more valuable the estate the greater the time required of the clerk and judge in the probate thereof. Defendant also contends that the responsibility of the judge and the clerk increases in proportion as the value of the estate being probated increases. Because of such facts, so it is urged by defendant, the different amounts required to be paid for filing an inventory and appraisement may properly be held to be fees. If the premise assumed by defendant as the basis for its argument is in fact true, there would be merit to its contention. Experience, however, teaches us that the amount of service required in a probate proceeding of the clerk and judge do not depend upon the appraised value of the estate being probated, but rather upon such matters as the number of heirs, legatees, or devisees, the number of creditors, the character of the property being probated, number of sales of property sought in the probate proceedings, etc. Nor are we impressed with the argument that the extent of responsibility assumed by the clerk and judge becomes greater as the value of the estate is increased. Neither the judge nor the clerk is charged with the actual management, custody, or control of the property of the estate. Those duties are performed by the administrator or executor. The clerk's duties are confined to filing and preserving the papers filed, giving the required notices, etc. The duty and responsibility is the same whether the estate be of great or little value. Nor may it be said that the responsibility of the judge to perform his duties, as by law provided, is enhanced because, in a given matter, the estate in which he is acting is of great value. The judge and clerk are each paid a fixed salary. The amount of such salary is not dependent on the size of the estate probated in the court in which they are officers. The arguments here made in support of...