State ex rel. Sanderson v. Mann

Cassoday, J. The Hon. Edward Sanderson, residing in Milwaukee, died intestate May 20, 1S89, leaving an estate valued at $631,919.08, consisting mostly of personal property. Oh. 176, Laws of 1889, went into effect a short time prior to his death, and applied to the administration of estates in an}' county having a population of over 150,000, except that estates of $3,000 or less are exempt from its provisions. Of course, Milwaukee county is the only county in the state to which the act is applicable. By the terms of that act the administrators of the estate in question are required to “ pay to the county treasurer of such county, for the use thereof,\ a sum equal to one half of one per cent.” on $500,000 of the appraised value of such estate, and one tenth of one per cent, of such value on the balance of said estate; that is to say $2,631.95 in all. The act expressly requires that such sum shall be paid at the time of the return and approval of the inventory, and that no account of any executor or administrator shall be allowed without proof of such payment, and that the same shall constitute a part of the expense of administration. The only deduction from the gross valuation of such estate, provided for in the act, is the amount of existing specific liens. The act expressly repeals all acts and parts of acts inconsistent therewith. In obedience to that act the county judge refused to accept, approve or file the inventory and appraisal of said estate unless and until said administrators shall first — 473 — pay to the county treasurer, for the use of said county, the said sum of $2,631.95. The relator denies the validity of that act, and has instituted this suit to compel the county judge to proceed with the settlement of said estate without the payment of the sum so exacted as a condition precedent. 1. It is claimed by the learned district attorney that the exaction in question is essentially a probate fee or in lieu of such a fee., The title of the act asserts that it is “ in lieu of fees in all counties” of the population named. The repealing clause of the act, in addition to what is stated above, purports to repeal “ all that part of sec. 2483, E. S. 1878, which provides for the payment of fees to the county treasurer in settlement of estates or guardianship.” The so-called fees provided for in that section ranged from twenty to seventy-five dollars, according to the valuation of the estate, and were payable to the county treasurer, for the use of the county, and applied solely to Milwaukee county. Such charge was first authorized by sec. 4, ch. 121, Laws of 1868, but was expressly repealed by ch. 40, Laws of 1872. It was first applied to Milwaukee county by sec. 4, ch. 98, Laws of 1877, and then so incorporated into sec. 2483, E. S., and then continued by ch. 262, Laws of 1880. Such charges have been treated by the legislature as something different from probate fees. Thus ch. 121, Laws of 1868, first authorizing such charges, expressly prohibited the several county judges “from taking or receiving, either directly or indirectly, any fees whatever for their official services in the administration of the estates of deceased persons,” and provided for paying such judges a salary. These provisions were incorporated into secs. 2454,2455, E. S. Oh. 183, Laws of 1880, expressly prohibited both the county judge of Milwaukee county and his assistant register of probate from receiving any fees of office or other compensation than his salary. A probate fee is manifestly a reward or compensation to — 474 — a county judge or judge or register of probate, for services rendered or to be rendered. Obviously no such fee was required by law in Milwaukee'county at the time of the passage of ch. 176, Laws of 1889, except for certified copies of records and papers, as prescribed by sec. 2483, R. S. The same was true respecting other counties in the state. The payment required by that act, therefore, could not have been “in lien of fees” of such judges or register, as might be inferred from the title of the act. On the contrary, it was manifestly in lieu of the charge or exaction of from twenty to seventy-five dollars, according to the valuation of the estate, thus required to be paid in Milwaukee county. Th’s is made plain by the act itself, which requires such payment to be made ‘.‘to the county treasurer of such county, for the use thereof.'P The law nowhere prescribes the object or use to which the money so paid is to be applied. There seems to be nothing to prevent its being expended for any legitimate county purposes or public improvements. Besides, the amount of this exaction is in no way dependent upon the amount or value of such services of the judge or register of probate, but depends entirely upon such valuation or appraisal of the estate. Some small estates may be so complicated as to require very much more services from such judge or register than many large estates. Compensation for services must necessarily be graduated by the amount, quality, and character of the services; but here the amount exacted bears no relation to such services, and may be used for entirely other purposes. ’ In fact the amount exacted in the case before us, if regarded as a probate fee for services rendered or to be rendered in the case, is so large as to shock the good sense of everybody. We must hold that the exaction in question is not a probate fee, nor in lieu of, nor equivalent to, a probate fee. It is nothing less than a charge imposed by the legislature as a condition precedent to allowing the county court to — 475 — proceed with the administration of this estate. Such charge is necessarily a burden so imposed upon such administrators or such estate, or both, to raise money for public purposes. This brings it within a well-recognized definition of a tax. Blackw. Tax Titles, § 10; Cooley, Taxation, 1. Even where, under the police power, licenses are exacted as a condition precedent for the doing of a certain kind of business otherwise lawful, for the purpose of raising revenue, it is essentially a tax. Cooley, Taxation, 572, 597; Tied. Lim. P. P. 278-289. “The granting of a license, therefore,” said Ciiask, C. J., speaking for the court, “must be regarded as nothing more than a mere form of imposing a tax.” License Tax Cases, 5 Wall. 471. In that case it was held that “ the requirement of payment for such licenses is only a mode of imposing taxes on the licensed business, and the prohibition, under penalties, against carrying on the business without license is only a mode of enforcing the payment of such taxes.” It is very obvious that the charge imposed by the act in question, is essentially a tax. 2. This brings us to the question whether thé validity of that act can be maintained on the theory that such exaction is a tax. The constitution provides that “ the legislature shall impose a tax on all civil s^^its commenced or prosecuted in the municipal, inferior, or circuit courts, which shall constitute a fund to be applied toward the payment of the salary of judges.” There are several reasons why the tax in question cannot be maintained under this section. The fund thereby raised is not restricted to the payment of the salary of judges. County courts must undoubtedly be regarded as “ inferior ” courts within the meaning of the section, for another section of the constitution empowered the legislature “ to abolish the office of judge of probate in any county, and to confer probate powers upon suGh inferior courts as may be established in said county.” Sec. 14, — 476 — art. YII. Rut sec. 18 of that article, above quoted, requires such tax to be imposed “ on all civil suits commenced or prosecuted” in any and all of the courts in the state named in the section. Such a tax has been imposed by general statutes from the beginning. Sec. 2632, R. S. The act in question applies only to Milwaukee county. But another and a conclusive reason why the tax here imposed cannot be justified under the section of the constitution quoted is that the settlement of estates in courts having probate jurisdiction is essentially proceedings in rem, and not “ civil suits commenced and prosecuted,” within the meaning of the constitution. It is upon this theory that the federal courts have uniformly disclaimed jurisdiction in probate matters; since such jurisdiction is not conferred by the words: “The judicial power.shall extend to all cases inlaw and equity, arising,” etc. Sec. 2, art. Ill, Const. U. S. If, then, the legislature had the power to impose the tax in question, it was by virtue of its general taxing power, and not under the special grant of power conferred by the section quoted. 3. The general powers of taxation reserved to and possessed by the state are expressly limited in the modes of their exercise. The constitution expressly declares that “ the rule of taxation shall be uniform, and taxes shall be levied upon such property as the legislature shall prescribe.” Sec. 1, art. Till. Under this section the legislature undoubtedly have the power to prescribe the property to be taxed, and the rule by which it must be taxed, subject, however, to the limitation that such rule must be uniform. Wis. Cent. R. Co. v. Taylor Co. 52 Wis. 37. Counsel seem to think that the rulings in that case justified an arbitrary classification of inclusion and exclusion, even where there are no rational grounds for distinction in the character, use, productiveness, or circumstances of the property or subjects taxed. A thorough acquaintance with that case, however, — 477 — will not justify such conclusion. In that case the lands exempted had been granted by the United States to the state, and by it held in trust for the purpose of building the proposed line of railroad belonging to the plaintiff, and hence were not subject to taxation, even in the place limits, except as fast as they were actually earned by the construction of the road, nor then until certified by the state authorities. But none of such lands as were situated in the indemnity limits, even though so earned and so certified to, became taxable until actually selected, and such selections actually approved by the secretary of the interior. State ex rel. Bell v. Harshaw, ante, p. 230. It was only- lands granted for such a purpose, and acquired in that way and in furtherance of the object of such grant and in the execution of such trust, that it was held, in the case referred to, might be exempted from taxation for a term of years, and after-wards such exemption extended. Since the case of Wis. Cent. R. Co. v. Taylor. Co., 52 Wis. 37, numerous decisions have been made by courts of high authority, sanctioning the reasonable classifications of property for the purposes of taxation, and holding that the same were not in violation of the rule of uniformity. Among such cases are the following: Kentucky R. Tax Cases, 115 U. S. 322; Gibbons v. Dist. of Columbia, 116 U. S. 404; Davenport Bank v. Davenport Board, 123 U. S. 83; Banger's Appeal, 109 Pa. St. 79; Lehigh V. R. Co. v. Comm. 18 Atl. Rep. (Pa.), 410; State v. Under-Ground Cable Co. 18 Atl. Rep. (N. J.), 581; State v. Richards 18 Atl. Rep. (N. J.), 582; State Board v. Cent. R. Co. 48 N. J. Law, 148; People ex rel. Iron S. M. Co. v. Henderson, 12 Colo. 369; St. Louis v. Freivogel, 95 Mo. 533. It is claimed that the exaction in question is nothing more than a succession tax, and as such constitutes a distinct class, and hence is not in violation' of the rule of uniformity mentioned. Such a tax is essentially a tax upon the transmission of estates by devise, bequest, or descent, — 478 — and not, properly speaking, a tax upon the property constituting the estate before the same is thus transmitted. The view we have taken of this case renders it unnecessary to determine whether such a tax may lawfully be imposed under our constitution. Upon the death of any person, his property, not exempt, at once becomes chargeable with the pajnnent of all his debts, -whether he dies testate or intestate. Union Nat. Bank v. Hicks, 67 Wis. 191. Of course, the rights of heirs, devisees, and legatees, in a certain sense become vested at the death of such testate or intestate. The administration of estates is to preserve the same until the claims of creditors are ascertained and provided for, when the residue maybe effectively transmitted to the respective parties entitled. A succession tax would necessarily be imposed upon the respective parties thus succeeding to such residue. Commonwealth's Appeal, 127 Pa. St. 438; Mason v. Sargent, 104 U. S. 689. But the tax in question is not upon such succession, but upon the whole estate at its appraised valuation, regardless of whether it is solvent or insolvent. In case of an insolvent estate nothing would be left after the payment of debts for transmission, and in most estates there are likely to be sufficient debts to reduce the amount of such transmission far below the amount of such valuation. Besides, the amount of such tax is graduated by the amount of such appraisal, and is to be paid by the oxecutoi’s or administrators before or at the time of filing such appraisal, notwithstanding they may only be interested as such officials, and never succeed to any of such estate. Manifestly the burden imposed is not a succession tax, but a tax upon the whole estate, regardless of whether it is solvent or insolvent. 4. Can it be sustained as a tax upon the estate? A short time prior to Mr. Sanderson’s death his property was assessed under the general statutes as of the 1st day of May, 1889. Sec. 1033, S. & B. Ann. Stats. If the exaction in — 479 — question is to be maintained, then his estate was subject to double taxation for the year 1889, and each tax was imposed by a different rule. Besides, the act in question exempted from such taxation all such estates as did not exceed $3,000 in value. Were we to assume that the act,' as applying to Milwaukee county alone, could otherwise be maintained, yet it would be a serious question whether it could be sustained as a uniform rule of taxation under the clause of the constitution quoted. That question will not here be determined. 5. As indicated, the act in question imposes a tax for general purposes, and applies only to Milwaukee county. As thus limited, can it be sustained? A similar question was presented in Murphy v. Hall, 68 Wis. 212, but was passed over with the remark that “ the gravity of such a question suggests the propriety of reserving its determination until imperative duty requires.” It was thus mentioned for the very purpose of calling attention to the mischief which might result from that class of legislation. Obviously, if the act can be sustained as to any county having a population exceeding 150,000, then an act might be sustained as to any counties having a population of 1,000 or less, or any counties having between 1,000 and 2,000 population, and so on, for each additional 1,000. Thus we might have nearly as many systems of taxation as we have counties in the state. The mischief thus indicated had been fully demonstrated more than twenty7 years ago. The amendment of 1ST 1 to article IV of the constitution, among other things, provides: “Sec. 31. The legislature is ■prohibited from enacting any special or private laws. . . . 6th. For assessment or collection of taxes or for extending the time for the collection thereof. . . . Sec. 32. The legislature shall provide general laws for the transaction of any business that may be prohibited by section thirty-one of this article, and all such laws shall he uniform in their — 480 — operation throughout the state.” These provisions, in effect, declare that the legislature is prohibited from enacting any special or private laws for the assessment or collection of taxes, or for extending the time for the collection thereof, in Milwaukee county, or any limited number of counties in the state, less than the whole, but- the legislature shall provide general laws for such assessment and collection, “and all such laws shall be uniform, in their operation throughout the state.” Manifestly the act for the imposition and collection of the tax in question is not uniform in its operation throughout the state, but, in direct violation of these provisions of the constitution, is not only limited in its operation to Milwaukee county, but is further limited to a. certain class of estates in that county. For these obvious reasons we must hold that the act in question is unconstitutional and void. We are pleased to note that two courts of high authority have each recently come to the same conclusion in respect to a similar enactment. State ex rel. Davidson v. Gorman, 40 Minn. 232; In re Ruan St. 19 Atl. Rep. (Pa.), 219. 6. The Minnesota case cited also holds that such act is in violation of a provision 'of their constitution, similar to ours, which declares that “ every person . . . ought to obtain justice freely, and without being obliged to purchase it, completely and without denial, promptly and without delay, conformably to the laws.” Sec. 9, art. I. The act in question purports to close the door of the county court against these administrators and this estate, unless they first advance and pay the amount exacted. This looks very much like purchasing the privilege of going into the county court for the settlement of this estate; but it is unnecessary here to determine the question.