State v. Case

Decision Date14 July 1905
Citation81 P. 554,39 Wash. 177
PartiesSTATE ex rel. NETTLETON v. CASE, County Clerk of King County.
CourtWashington Supreme Court

Appeal from Superior Court, King County; A. W. Frater, Judge.

Application by the state, on the relation of C. M. Nettleton, as administrator of the partnership of D. McL. Brown and others for a writ of mandate directed to Otto A. Case, as county clerk of King county, etc. From a judgment awarding a peremptory writ, defendant appeals. Affirmed.

Kenneth Mackintosh and Ernest B. Herald, for appellant.

Allen Allen & Stratton, for respondent.

HADLEY J.

The relator applied to the superior court for a writ of mandate directed to the county clerk of King county, requiring him to receive and file certain papers in probate proceedings. An alternative writ was issued. By the demurrer to the petition and alternative writ the following facts are admitted: D McL. Brown died in King county on the 23d day of January, 1905, he being at the time of his death a member of the partnership consisting of himself, W. A. Brown, D. A Brown, and C. M. Nettleton, doing business under the firm name of Seattle Bridge Company. Thereafter the said Nettleton was duly appointed as administrator of said partnership estate, and he qualified as such. An inventory and appraisement of the estate were duly prepared, the apprasisement showing the valuation of the property belonging to the partnership at $127,655.50. The administrator presented the inventory and appraisement to the clerk for filing, whereupon the latter demanded that the administrator should pay the sum of $225 as probate fees, and refused to file the papers until said sum should be paid to him. Thereafter the administrator also prepared a petition for an order to sell certain real estate belonging to the partnership, and thereupon tendered the petition to the clerk for filing, together with filing fees; but the clerk refused to file the same, or to accept the sum tendered otherwise than on account of part payment of said demand of $225. The demurrer challenged the sufficiency of the above-recited facts to authorize the issuance of the writ of mandate, and the same was overruled. The clerk declined to further answer, and it was thereupon ordered that a peremptory writ of mandate should issue, commanding him to immediately file the papers mentioned. From said order he has appealed.

The appeal involves the constitutionality of an act of the Legislature of 1903 relating to the fees of state and county officers, witnesses, and jurors. See Sess. Laws 1903, p. 290, c. 151. That portion of the act particularly involved her relates to the charges in probate proceedings, and will be found at pages 293, 294, of said Session Laws. The trial court held the said provisions to be unconstitutional. It will be observed that the statute requires the payment of $5 in probate proceedings at the time the first paper therein shall be filed. In addition to the above amount, a graduated schedule of fees is provided. Increased amounts are chargeable to estates of $1,000 or more. The sum to be paid increases according to the value of the estate involved, the amount to be determined by the appraisement returned into court. When the amount of the estate is $1,000 or more and less than $2,000, the additional sum required is $2.50. The amount is thereafter increased, based upon stated estate values, until the valuation reaches $50,000 or more and less than $100,000 in which case the sum of $125 shall be paid. It is then provided that estates exceeding $100,000 shall pay in addition to the said $125 the sum of $50 for each additional $20,000 valuation above $100,000. The estate at bar, as we have seen, is valued somewhat in excess of $127,000, and the fee demanded by the clerk was $225. Whether the amount demanded is excessive, even under the terms of the statute, we shall neither discuss nor decide, since that matter is not discussed by counsel. The constitutionality of the statute is alone considered in the briefs.

The increased fees provided by the statute are based upon an ad valorem theory, and regulated according to the amount of property owned by an estate. It was the view of the trial court that charges so exacted amount to a property tax, and that the statute therefore violates our state constitutional provisions with respect to the uniformity of property taxation. Section 1 of article 7 of the Constitution provides that 'all property in the state, not exempt under the laws of the United States or under this Constitution, shall be taxed in proportion to its value to be ascertained as provided by law.' Section 2 of the same article also requires that 'the Legislature shall provide by law a uniform and equal rate of assessment and taxation on all property in the state according to its value in money, and shall prescribe such regulations by general law as shall secure a just valuation for taxation of all property, so that every person and corporation shall pay a tax in proportion to the value of his, her, or its property.' Section 9 of the same article also contains the following 'For all corporate purposes all municipal corporations may be vested with authority to assess and collect taxes and such taxes shall be uniform in respect to persons and property within the jurisdiction of the body levying the same.' It does not appear that the property of the estate at bar is exempt from taxation under the first constitutional provision above quoted, but it is subject to the burden thereof, and must be taxed uniformly with other property according to its value. If, therefore, the charges imposed by the statute in question are in the nature of a tax upon the property, they would seem to impose a burden thereon in addition to that borne by property in general. Appellant argues that, even in cases of taxation, the rule of equality and uniformity does not forbid a liberal classification, and that, since this law classifies estates according to their value, all in each particular class are affected alike. He cites State v. Clark, 30 Wash. 439, 71 P. 20, and State v. Sharpless, 31 Wash. 191, 71 P. 737, 96 Am. St. Rep. 893. Neither of said cases relates to property taxation. The first discusses the inheritance tax law, and expressly holds that such a tax is not a property tax, but is a mere charge for the privilege of succession to the ownership and enjoyment of property; following Magoun v. Illinois Trust & Savings Bank, 170 U.S. 283, 18 S.Ct. 594, 42 L.Ed. 1037, which expressly distinguished such a charge from property taxes, which must be uniform and equal under the state Constitutions. The second case cited discusses a license or occupation tax statute. Such statutes do not provide for property taxes, but are usually based upon the necessity for policy regulation. It is true such statutes usually contain revenue features, and some may be entirely for revenue purposes and not for regulation; yet the exaction of revenue is not a property tax, but is in the nature of an occupation tax for the privilege of conducting a particular business. No authority has been called to our attention which holds that property itself may be so classified that it shall bear a burden greater than that of other property of like value within the same assessment...

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    ...or charges imposed by legislative authority on persons or property, to raise money for public purposes....'" State ex rel. Nettleton v. Case, 39 Wash. 177, 182, 81 P. 554 (1905) (quoting 27 AM. & ENG. ENCY. LAW 578 (2d ed.1905)). "It is elementary that the power of taxation, subject to cons......
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