State ex rel. Sanderson v. Mann

• Decision Date: 08 April 1890
• Parties: STATE EX REL. SANDERSON v. MANN, COUNTY JUDGE.
• Court: Wisconsin Supreme Court

76 Wis. 469

46 N.W. 51

STATE EX REL. SANDERSON

v.MANN, COUNTY JUDGE.

Supreme Court of Wisconsin.

April 8, 1890.

For majority opinion, see 45 N. W. Rep. 526.

TAYLOR, J., ( dissenting.)

In this action an alternative writ of mandamus was issued on the petition of the administrators of the estate of Edward Sanderson, deceased, out of the circuit court of Milwaukee county, directed to the respondent as county judge of said county, commanding him to proceed at once to accept, approve, and file the inventory and appraisal, and thereafter proceed to the allowance and settlement of any account that may be filed by said administrators, and to the settlement of said estate, according to law, and without the payment by said administrators to the county treasurer of said county of the sum of $2,631.95, or any sum whatever, or that he may show cause to the contrary thereof, etc. Upon the service of such writ the respondent appeared by John Toohey, his attorney, and the attorneys stipulated that in this proceeding the circuit court may take judicial notice of the population of the several counties of the state, as evidenced by the last official census. After filing this stipulation, the respondent, by his attorney, moved to quash the writ for the reason that the relator, as appears by the relation herein on file, has not complied with the provisions of chapter 176 of the Laws of Wisconsin for 1889. The circuit court quashed the writ, and from the order quashing the same the relators appeal to this court.

The whole controversy in this case depends upon the validity of said chapter 176, Laws 1889. On the part of the appellant, it is claimed that said chapter is unconstitutional and void, and so the county court could not lawfully refuse to accept the inventory presented by said administrators, and proceed to the allowance of their accounts, and the settlement of said estate, without the payment of said sum of $2,631.95; and it is admitted that, if said law is a valid law, then the writ was properly quashed. The law is set out in the statement of the case made in the opinion of this court. The main reason for attacking this law as an unconstitutional law is based upon the contention that the sum required to be paid by said law to the county treasurer is a tax, within the meaning of section 1 of article 8 of the constitution, that being the article on finance. Although I am not satisfied that the act would be unconstitutional if it could be construed as levying a tax, within the meaning of said section 1 of the finance article, still I base my opinion as to the validity of the act on the ground that it is not a tax, within the meaning of section 1 of said article, and is, as it professes to be, an act passed to create a fund for the payment of the expenses of the county court of Milwaukee county, including the salary of the county judge.

I think it cannot be contended with any degree of plausibility that the county court of Milwaukee county is now anything more than a probate court, as that court existed at the time of the adoption of the constitution, and which court was recognized by the constitution. Since the jurisdiction of that court to hear and try civil actions at law and in equity has been taken away, it is simply an inferior court created by law, and upon which the jurisdiction of the probate court as it existed at the time the constitution was adopted, and, for some years afterwards, was transferred by law, as authorized by the provision in section 14, art. 7, of the constitution. Said section 14 reads as follows: “There shall be chosen in each county, by the qualified electors thereof, a judge of probate, who shall hold his office for two years, and until his successor shall be elected and qualified, and whose jurisdiction, powers, and duties shall be prescribed by law: provided, however, that the legislature shall have power to abolish the office of judge of probate in any county and to confer probate powers upon such inferior courts as may be established in said county.” Acting under the authority given by this section of the constitution, the legislature, in the adoption of the Revised Statutes of 1849, abolished the probate courts in this state, and created a county court in each organized county of the state, and conferred the probate powers upon such county courts, and also limited jurisdiction to try civil actions. See chapter 85, Rev. St. 1849. At the time of the adoption of the constitution, and afterwards until the revision of 1849, the probate courts were supported wholly by fees given to the probate judges, and collected from the persons having business in said courts. After the creation of the county courts, and the transfer of the probate powers and jurisdiction to said courts in 1849, the county courts were maintained, and the judges paid, by fees imposed on persons transacting business in said courts, and the county judges were also paid for their services in the exercise of their jurisdiction as courts having jurisdiction of civil actions by fees and a per diem allowance. See sections 6, 7, c. 131, Id. In 1854 the act conferring jurisdiction upon the county courts in civil actions was repealed as to all the county courts except the county court of Milwaukee county. See chapter 93, Laws 1854. Section 1 of said act reads as follows: “All the provisions of chapter 86 of the Revised Statutes, (1849,) and all other provisions of law conferring upon county courts jurisdiction to try and determine civil actions, appeals, or certioraris, are hereby repealed: provided, that this act shall not affect the jurisdiction of said court in respect to probate matters or proceedings, and shall not apply to or affect the county court of the county of Milwaukee.” This act took effect July 1, 1854. By chapter 86, Rev. St. 1849, and chapter 93, Laws 1854, the jurisdiction of the probate courts, as they existed before 1849, was simply transferred to the county courts, and the county courts in all the counties in the state had no other jurisdiction than such as had been theretofore exercised by the probate courts, except as to the county court of Milwaukee county. Since 1854, jurisdiction in civil actions has been conferred on several of the county courts of the state, in some cases temporarily; and in 1878, when the Revised Statutes of that year were enacted, there were four county courts exercising limited jurisdiction in civil actions, viz., Milwaukee, Winnebago, Fond du Lac, and Dodge. All other county courts were simply exercising the jurisdiction pertaining to probate courts alone; and the expenses of these courts, and the compensation of the judges, were provided for by a fee-bill, and the fees were collected from the persons having business transacted in said county courts.

The method of paying the county judges by fees continued down to 1868, when chapter 121, Laws 1868, was enacted, which provides for giving the county judges salaries in lieu of fees in all the counties in the state except in those counties in which the county courts had civil jurisdiction; and in those counties in which salaries were given to the judges they were prohibited from taking fees, and in such counties certain fixed sums, graduated according to the value of the estates to be administered upon, were required to be paid by the executor, administrator, or guardian to the county treasurer, for the use and benefit of the county, and the court was prohibited from allowing the account of any executor, etc., until satisfactory proof was made of the payment of the sum fixed by the statute. Chapter 140, Id., made certain provisions relating to the record-books to be kept in the offices of the several county courts, but Milwaukee county was excepted from the provisions of this act, also. Chapter 54, Laws 1871, amended the law so that the act of 1868 should apply to Manitowoc, although the county court in that county had a very limited jurisdiction in civil actions. Chapter 40, Laws 1872, simply repealed section 4, c. 121, Laws 1868, giving compensation instead of fees, and so leaving the administration of all estates, in all the counties, free, and the expenses of the courts, including the salaries of the judges, a public charge to be paid out of the public money, except those in which the county courts had civil jurisdiction; and in those counties the fee-bill for services for probate matters remained in force. By chapter 98, Laws 1877, a salary of $5,000 was given to the county judge of Milwaukee county, and all fees for probate or other services of the county judge were abolished; and section 4 of said act declared that the provisions of section 4, c. 121, Laws 1868, should apply to Milwaukee county. This was the section which required certain fixed sums to be paid by executors, etc., to the county treasurer for the use of the county, etc. The county judges of the other county courts having civil jurisdiction, and in which the fee system was not abolished by chapter 121, Laws 1868, were Dodge, Fond du Lac, and Winnebago. So that by chapter 121, Laws 1868, chapter 40, Laws 1872, which repealed section 4 of said chapter 121, and chapter 98, Laws 1877, which repealed the fee-bill as to the county court of Milwaukee county, and adopted section 4, c. 121, Laws 1868, in place of the fee-bill, we had this state of things in the state in regard to the county courts in respect to probate matters: In most of the counties the counties paid all the expenses of probate matters. In those counties in which the county courts had civil jurisdiction, except in Milwaukee county, the expenses of the court on probate matters were paid by the collection of fees from the parties having business done in said courts; and in Milwaukee county the expenses of the court as to probate matters were paid, in part at least, by the collection of certain fixed sums from the executors, etc., having business in said court. There were then three systems of...