State ex rel. Davidson v. Gorman

• Decision Date: 07 March 1889
• Citation: 41 N.W. 948,40 Minn. 232
• Parties: State of Minnesota, ex rel. Edward E. Davidson, v. E. S. Gorman, Judge of Probate
• Court: Minnesota Supreme Court

41 N.W. 948

40 Minn. 232

State of Minnesota, ex rel. Edward E. Davidson, v. E. S. Gorman, Judge of Probate

Supreme Court of Minnesota

March 7, 1889

Mandamus. Appeal by defendant from an order of the district court for Ramsey county, Simons and Kelly, JJ., presiding directing the issuance of the peremptory writ.

Order affirmed.

Moses E. Clapp, Attorney General, J. J. Egan, and M. R. Tyler, for appellant.

Williams & Goodenow, for respondent, (relator.)

OPINION

Dickinson, J.

The proceeding in which this appeal is taken was mandamus, requiring the probate court to proceed to the settlement of the estate of William F. Davidson deceased, that court having refused so to do until payment should be made to the county treasurer, as prescribed by statute, of the sum of $ 5,000, the estate having been inventoried at more than $ 500,000. The district court held this requirement of the statute to be unconstitutional. The statute (Gen. St. 1878, c. 7, §§ 5, 7-9, as amended by Laws 1885, c. 103,) prescribes annual salaries as compensation for the services of judges of probate, "in lieu of the fees, costs, and perquisites" theretofore allowed by law. Section 8, as amended in 1885, (Laws 1885, c. 103,) declares that, "for the purpose of reimbursing the county treasury for the salaries provided to be paid in this act to the judge of probate, it shall be the duty of each executor, administrator, or guardian to pay or cause to be paid to the county treasurer, for the use and benefit of the county in whose probate court proceedings are to be instituted to settle the estate of any deceased person, minor, spendthrift, or insane person, the following sums, according to the value of the estate and property of such deceased person, minor, spendthrift, or insane person, shown by the inventory and appraisal; that is to say." Then follows a statement of the amounts to be thus paid, which are: $ 10, where the inventory exceeds $ 2,000, and does not exceed $ 5,000; $ 25, where it exceeds $ 5,000, and does not exceed $ 10,000; $ 35, where it exceeds $ 10,000, and does not exceed $ 15,000; $ 50, where it exceeds $ 15,000, and does not exceed $ 20,000; $ 75, where it exceeds $ 20,000, and does not exceed $ 35,000; $ 100, where it exceeds $ 35,000, and does not exceed $ 50,000; $ 200, where it exceeds $ 50,000, and does not exceed $ 75,000; $ 300, where it exceeds $ 75,000, and does not exceed $ 100,000; $ 500, where it exceeds $ 100,000, and does not exceed $ 150,000; $ 800, where it exceeds $ 150,000, and does not exceed $ 200,000; $ 1,000, where it exceeds $ 200,000, and does not exceed $ 500,000; $ 5,000, where it exceeds $ 500,000; "and, in addition, such executor, administrator, or guardian shall pay all sums necessarily expended in serving or publishing notices required by law." In section 9 it is declared that "no proceedings of any kind shall be had in any cause pending in such probate court for the settlement of any estate, subsequent to the return of the inventory showing the value of such estate, until" such payment shall have been made.

The two constitutional provisions claimed to stand in the way of such legislation are section 8, art. 1, which declares that every person "ought to obtain justice freely and without purchase, completely and without denial, promptly and without delay, conformably to the laws;" and section 1, art. 9, providing that "all taxes to be raised in this state shall be as nearly equal as may be, and all property on which taxes are to be levied shall have a cash valuation, and be equalized and uniform throughout the state."

We have no doubt that it is in the power of the legislature to require suitors and litigants to pay reasonable legally-prescribed fees or costs. The constitutional right to obtain justice freely and without purchase, which is as ancient as Magna Charta, has not been understood to be a right to have judicial proceedings carried on without expense to the parties. Adams v. Corriston, 7 Minn. 365, (456;) Willard v. Comm'rs of Redwood Co., 22 Minn. 61; Perce v. Hallett, 13 R.I. 363; Hewlett v. Nutt, 79 N.C. 263; Harrison v. Willis, 7 Heisk. 35. But the sums required by this act to be paid into the county treasury 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...