Strauss v. Costello
| Decision Date | 04 January 1915 |
| Docket Number | 1905 |
| Court | North Dakota Supreme Court |
Appeal from an order of the District Court of Burleigh County; W. L Nuessle, J.
Affirmed.
F. E McCurdy, for appellant.
The statute in question, "inheritance tax law," is unconstitutional. It is class legislation. It is arbitrary. Kentucky R. Tax Cases, 115 U.S. 321, 337, 29 L.Ed. 414, 419 6 S.Ct. 57; Yickwo v. Hopkins, 118 U.S. 356, 30 L.Ed. 220, 6 S.Ct. 1064; Gulf, C. & S. F. R. Co. v Ellis, 165 U.S. 150, 41 L.Ed. 666, 17 S.Ct. 255; Magoun v. Illinois Trust & Sav. Bank, 170 U.S. 283, 294, 42 L.Ed. 1037, 1043, 18 S.Ct. 594; Cotting v. Kansas City Stock Yards Co. (Cotting v. Godard) 183 U.S. 79, 111, 46 L.Ed. 92, 109, 22 S.Ct. 30; Michigan C. R. Co. v. Powers, 201 U.S. 245, 293, 50 L.Ed. 744, 761, 26 S.Ct. 459; Connolly v. Union Sewer Pipe Co. 184 U.S. 540, 571, 46 L.Ed. 679, 694, 22 S.Ct. 431; Bell's Gap R. Co. v. Pennsylvania, 134 U.S. 232, 33 L.Ed. 892, 10 S.Ct. 533; Nicol v. Ames, 173 U.S. 509, 521, 43 L.Ed. 786, 793, 19 S.Ct. 522; Hayes v. Missouri, 120 U.S. 68, 30 L.Ed. 578, 7 S.Ct. 350; Re Pell, 171 N.Y. 48, 57 L.R.A. 540, 89 Am. St. Rep. 791, 63 N.E. 789; People v. Orange County Road Constr. Co. 175 N.Y. 84, 65 L.R.A. 33, 67 N.E. 129; Cooley, Taxn. 3d ed. 77; State ex rel. White House School Dist. v. Readington Twp. 36 N.J.L. 66; People ex rel. Farrington v. Mensching, 187 N.Y. 8, 10 L.R.A. (N.S.) 625, 79 N.E. 884, 10 Ann. Cas. 101.
No state has power to make a law for taxation purposes which arbitrarily discriminates in favor of one as against another of the same class of persons, and such a law is in violation of primary rights. People ex rel. Williams Engineering & Contracting Co. v. Metz, 193 N.Y. 160, 24 L.R.A. (N.S.) 208, 85 N.E. 1070; Re New York, 190 N.Y. 350, 16 L.R.A. (N.S.) 340, 83 N.E. 299, 13 Ann. Cas. 598; Bush v. New York L. Ins. Co. 63 Misc. 91, 116 N.Y.S. 1056; Lee v. O'Malley, 69 Misc. 218, 126 N.Y.S. 778; Re McKennan, 27 S.D. 147, 33 L.R.A. (N.S.) 625, 130 N.W. 33, Ann. Cas. 1913D, 745; People ex rel. Duryea v. Wilber, 198 N.Y. 1, 27 L.R.A. (N.S.) 357, 90 N.E. 1140, 19 Ann. Cas. 626.
It is necessary to make such excises uniform as to the entire class of collateral. It must not tax one and exempt another in the same class.
Note to State v. Hamlin, 41 Am. St. Rep. 580; Dixon v. Ricketts, 26 Utah 215, 72 P. 947; Re Wilmerding, 117 Cal. 284, 49 P. 181; State ex rel. Fath v. Henderson, 160 Mo. 216, 60 S.W. 1093; Magoun v. Illinois Trust & Sav. Bank, 170 U.S. 283, 290, 42 L.Ed. 1037, 1041, 18 S.Ct. 594; Knowlton v. Moore, 178 U.S. 41, 56, 44 L.Ed. 969, 975, 20 S.Ct. 747; see also note to State ex rel. Schwartz v. Ferris, 30 L.R.A. 218; Drew v. Tifft, 79 Minn. 175, 47 L.R.A. 525, 81 N.W. 839; note to Elton v. O'Connor, 33 L.R.A. 525; Lodi Twp. v. State, 51 N.J.L. 402, 6 L.R.A. 56, 18 A. 749; State, Alexander, Prosecutor, v. Elizabeth, 56 N.J.L. 80, 23 L.R.A. 529, 28 A. 51; Weaver v. Davidson County, 104 Tenn. 329, 59 S.W. 1105; Darcy v. San Jose, 104 Cal. 647, 38 P. 500; Wagner v. Milwaukee County, 112 Wis. 608, 88 N.W. 577; Longview v. Crawfordsville, 164 Ind. 122, 68 L.R.A. 625, 73 N.E. 78, 3 Ann. Cas. 496; Kraus v. Lehman, 170 Ind. 420, 83 N.E. 714, 84 N.E. 769, 15 Ann. Cas. 849; Chicago, M. & St. P. R. Co. v. Westby, 47 L.R.A. (N.S.) 97, 102 C. C. A. 65, 178 F. 619; Edmonds v. Herbrandson, 2 N.D. 274, 14 L.R.A. 725, 50 N.W. 970; Plummer v. Borsheim, 8 N.D. 568, 80 N.W. 690; Angell v. Cass County, 11 N.D. 265, 91 N.W. 72; Re Connolly, 17 N.D. 550, 117 N.W. 946; State ex rel. Mitchell v. Mayo, 15 N.D. 327, 108 N.W. 36; Justice Dickman, Fayette County v. People's & D. Bank, 47 Ohio St. 503, 10 L.R.A. 196, 25 N.E. 697; Allen v. Louisiana, 103 U.S. 80, 85, 26 L.Ed. 318, 319; Pollock v. Farmers' Loan & T. Co. 158 U.S. 636, 39 L.Ed. 1125, 15 S.Ct. 912.
The extent to which the courts may go, in reading into or out of legislative enactments words or phrases, in order to determine the legislative intent and meaning, is limited. Paxton & H. Irrigating Canal & Land Co. v. Farmers' & M. Irrig. & Land Co. 45 Neb. 884, 29 L.R.A. 853, 50 Am. St. Rep. 585, 64 N.W. 343; State ex rel. Patterson v. Bates, 96 Minn. 110, 113 Am. St. Rep. 612, 104 N.W. 709; State ex rel. Foot v. Bazille, 97 Minn. 11, 6 L.R.A. (N.S.) 732, 106 N.W. 93, 7 Ann. Cas. 1056.
H. R. Berndt, State's Attorney, Andrew Miller, Attorney General, and Geo. E. Wallace, L. E. Birdzell, Theo. Kafell, for respondent.
Mandamus is not the proper remedy here. The petitioner should have appealed from the order of the county court. Such order is appealable. The lower court has expressed its judgment. If the court was wrong, it is but a judicial error. No mere ministerial act is required to be performed. 13 Enc. Pl. & Pr. 539; People ex rel. Meminger v. Sexton, 24 Cal. 79; Francisco v. Manhattan Ins. Co. 36 Cal. 283; Davis v. Wallace, 4 Cal. Unrep. 949, 38 P. 1107; State ex rel. Child v. Smith, 19 Wis. 531; Ex parte Des Moines & M. R. Co. 103 U.S. 794, 26 L.Ed. 461; Ex parte Hurn, 13 L.R.A. 120, and note, 92 Ala. 102, 25 Am. St. Rep. 23, 9 So. 515; Territory ex rel. County Comrs. v. Cavanaugh, 3 Dak. 325, 19 N.W. 413.
The higher court has no power to tell a lower court what its interpretation and judgment of the law shall be. Benedict v. Howell, 39 N.J.L. 221; Re Rice, 155 U.S. 396, 39 L.Ed. 198, 15 S.Ct. 149; Re Parsons, 150 U.S. 150, 37 L.Ed. 1034, 14 S.Ct. 50; State ex rel. Northern P. R. Co. v. Stutsman County Dist. Judge, 3 N.D. 43, 53 N.W. 433; Re Morrison, 147 U.S. 14, 37 L.Ed. 60, 13 S.Ct. 246; Ex parte Baltimore & O. R. Co. 108 U.S. 566, 27 L.Ed. 812, 2 S.Ct. 876; Shine Presiding Judge v. Kentucky C. R. Co. 85 Ky. 177, 3 S.W. 18; Ex parte Des Moines & M. R. Co. 103 U.S. 794, 26 L.Ed. 461; Ex parte Newman, 14 Wall. 152, 20 L.Ed. 877; Cattermole v. Ionia Circuit Judge, 136 Mich. 274, 99 N.W. 1.
All that any court will ever do by mandamus to an inferior court is to direct that it take jurisdiction and act. Roberts v. Holsworth, 10 N.J.L. 57.
The appellant had a plain, speedy and adequate remedy at law, by appeal. Ex parte Elston, 25 Ala. 72; Ex parte Hutt, 14 Ark. 368; People ex rel. Flagley v. Hubbard, 22 Cal. 34; Marshall v. State, 1 Smith (Ind.) 17; State ex rel. Menge v. Rightor, 36 La.Ann. 200; State v. Gibson, 36 Ind. 394, 10 Am. Rep. 42; State ex rel. Patterson v. Marshall, 82 Mo. 484; State ex rel. Combination Silver Min. Co. v. Curler, 4 Nev. 445; Shelby v. Hoffman, 7 Ohio St. 450.
If petitioner had proved payment of the tax, and the county court had refused to allow his account, mandamus would lie. People ex rel. Green v. Dutchess & C. R. Co. 58 N.Y. 153; Johnson v. Lucas, 11 Humph. 306; State ex rel. Walker v. Judge of Orphans' Court, 15 Ala. 740; Rosenthal v. State Canvassers, 50 Kan. 129, 19 L.R.A. 157, 32 P. 129; Clark v. Buchanan, 2 Minn. 346, Gil. 298; Ross v. Lane, 3 Smedes & M. 695; Gillespie v. Wood, 4 Humph. 437; Hall v. Steele, 82 Ala. 562, 2 So. 650; Cook v. Candee, 52 Ala. 109.
Performance of an unlawful act cannot be compelled by mandamus. Cooley, Taxn. 3d ed. 1350, and note 2; 14 Am. & Eng. Enc. Law, 100; People ex rel. Hall v. San Francisco, 20 Cal. 592; State ex rel. Atty. Gen. v. District Ct. 13 N.D. 211, 100 N.W. 248.
In any event, such questions as are here presented will only be determined upon a full hearing of all interested parties in a proper proceeding. Mandamus will not permit such consideration. State ex rel. Lytle v. Douglas County, 18 Neb. 506, 26 N.W. 315; State ex rel. New Orleans Canal & Bkg. Co. v. Heard, 47 La.Ann. 1679, 47 L.R.A. 512, 18 So. 746.
The appellant herein, Fred Bismarck Strauss, is the executor of the last will and testament of Fred Strauss, late of Burleigh county, deceased. The respondent is the judge of the county court in and for Burleigh county. It appears from the petition that everything had been done necessary to entitle the petitioner to have his final report and account as executor allowed and the final decree of distribution made, except that he had not paid the inheritance tax provided for by chap. 185 of the Laws of 1913, chap. 10 of Probate Code, Compiled Laws of 1913.
Application was made for the final decree of distribution without paying such inheritance tax. Such application was denied on the sole ground that such tax had not been paid, the court finding that all other things necessary and prerequisite to the issuance of such final decree had been done and performed and its order was entered on the 28th day of March, 1914, denying the application. Thereupon appellant applied to the district court of Burleigh county, setting forth in his petition all the facts, for the issuance of a writ of mandamus commanding the judge of said county court to issue such final decree without the payment of the inheritance tax. An alternative writ was issued, and on the return day respondent filed an answer and motion to quash, in which he admitted that appellant had done everything prerequisite and necessary to the entry of the final decree of distribution, except to pay the inheritance tax referred to, and alleging that an order had been entered in the county court on the 16th day of December, 1913, determining the amount of the inheritance tax due from the petitioner and one Cora Minnesota Strauss, sole legatees and devisees under the will of the deceased, as the sum of $ 1,477.32. Upon the failure of petitioner to pay the same, and upon the hearing, the district court quashed the alternative writ, and denied the application, for the reason that such inheritance tax had not been paid. From this order the...
To continue reading
Request your trial