Parks v. Sutton

CORFMAN, C. J. Plaintiffs applied for a writ of mandamus in tbe district court of Salt Labe county to compel defendant, as tbe Treasurer of tbe state of Utab, to issue and deliver to tbem, as administrators of tbe estate of Enos A. ^Wall, deceased, a receipt for payment of an inheritance tax paid on account of said estate. Tbe plaintiffs’ petition, in substance, sets forth that said Enos A. Wall died in Salt Lake county June 20, 1920, leaving property subject to an inheritance tax; that thereafter tbe district court of Salt Lake county duly appointed plaintiffs administrators of said estate, and that they qualified and entered upon tbe discharge of their trust; that in August, 1920, they filed in said court a detailed report as required by Comp. Laws Utah 1917, § 3204, as amended by chapter 9, Laws Utab 1919, which said report contained a true inventory of all the property belonging to the estate of said deceased upon which an inheritance tax should be paid to the state of Utah; that thereafter appraisers duly appointed and commissioned by the said court appraised all the property of said estate subject to an inheritance tax as provided for by Comp. Laws Utah 1917, § 3190, as amended by chapter 64, Laws Utah 1919; that since said appraisement said appraisers were paid $300, their compensation, out of the treasury of Utah for their services rendered in making said ap-praisement as provided by Comp. Laws Utah 1917, § 3188; that thereafter the said court, by its order duly made and entered, fixed the amount of the inheritance tax to be paid by petitioners, as the administrators of said estate, to the state of Utah, and that the same has been paid to the defendant, State Treasurer, as required by said court’s order, and that petitioners have demanded of the defendant, as Treasurer, receipt therefor. It is then alleged that the Attorney General of the state of Utah, in behalf of the State Treasurer, filed with the petitioners a bill for $300, the same being the amount so paid out of the state treasury for the compensation of said appraisers, claiming the same to be due and payable by petitioners to the State Treasurer under the provisions of — 359 — Comp. Laws Utah. 1917, § 3210, as amended by chapter 64, Laws Utah 1919, as costs of said proceeding to be taxed against the estate of said deceased; that the defendant, as said State Treasurer, thereafter refused to issue and deliver to petitioners a receipt for the inheritance tax so paid by them on account of said estate unless payment be made to him of the $300 so paid out of the state treasury as compensation to said appraisers, which plaintiffs have refused to do. It is further alleged that the petitioners, as administrators of said estate, will be unable to close up its affairs and distribute the property of said estate to the heirs and persons entitled thereto until a State Treasurer’s receipt is obtained for the payment of said inheritance tax, and that petitioners have no plain, speedy, or adequate remedy in the ordinary course of law. Petitioners prayed for a writ of mandamus compelling the defendant, as State Treasurer, to deliver to them a receipt for the inheritance tax so paid by them. The district court let an alternative writ issue, and thereupon the defendant, as State Treasurer, appeared and demurred to plaintiff’s petition upon the ground that it did not state facts sufficient to constitute a cause of action. Said demurrer was sustained by the district court, and thereupon the court made and entered its order for judgment, after plaintiffs’ refusal to amend, dismissing their petition. Plaintiffs appeal. Plaintiffs assign as error the court’s order sustaining defendant’s demurrer to their petition and the dismissal of their petition. The only question therefore to be determined on this appeal is whether, under our inheritance tax laws, the per diem and expenses of the appraisers appointed by the district court to appraise the estates of decedents subject to inheritance taxes are to be borne by the estates or by the state. This question requires an interpretation of our inheritance tax laws, particularly Comp. Laws Utah 1917, §§ 3188 and 3210. Section 3188 provides: “Appraisers shall receive $5 per diem ior actual services and such necessary expenses incurred in the performance of their duties ' as may be allowed by the court appointing the same, to be paid out Of the state treasury as other state officers are paid. Any appraiser — 360 — appointed under this title who shall take any fee or reward from an executor, administrator, trustee, legatee, next of kin, or heir of any decedent, or from any other person liable to pa.y said tax or any portion thereof, shall be guilty of a misdemeanor.” Section 3210, as amended by chapter 64 Laws Utah 1919, reads as follows: “In all cases where any property so passes as to be liable to taxation under the inheritance law, all costs of the proceedings had for determining the amount of such tax or for determining whether the property of the entire estate is sufficient in amount as to render that part passing to heirs subject to the tax, shall be chargeable to such estate, and to discharge the lien upon such property all costs, as well as the taxes, must be paid. In all other cases the costs are to be paid as ordered by the court, and when a decision adverse to the state has been rendered, with an order that the state pay the costs, it is the duty of the clerk of the court in which such action was pending to certify the amount of such costs to the Attorney General, who shall, if said costs are correctly certified, and the case has been finally terminated, present the claim to the State Board of Examiners, to audit, and, said claim being allowed by said board, the State Auditor is directed to issue a warrant on the Attorney General in payment of such costs.” It is claimed tbat there is an apparent conflict in the foregoing sections. We do not think so. Section 3188, supra, limits and fixes the per diem for actual services rendered by appraisers while in the performance of their duties, as the state’s agents or officers; while rendering a purely public service, and said section also provides that said per diem and such' necessary expenses incurred by the appraisers in the performance of their duties as may be allowed by the court appointing them are to be paid out of the state treasury as other state officials are to be paid; while section 3210 provides that in all cases where any property passes which is subject to taxation by reason of our inheritance tax laws all costs of the proceedings had for determining the amount of the tax or for determining whether the entire property of the estate is of sufficient amount as to render a part passing to heirs subject to the tax shall be chargeable to such estate. Our Legislature passed an inheritance tax law as early as 1901 chapter 62, Laws Utah 1901). That act contained no provision as to whether the state or estate is chargeable with — 361 — the fees and expenses of making an appraisement. It simply provided that the executor, administrator, or trustee of the deceased person should, immediately upon his appointment, file an inventory of the property liable to be taxed, and that it became the duty of such executor, administrator, or trustee to collect the tax. The Legislature of 1905 repealed chapter 62, Laws Utah 1901, and enacted chapter 119, Laws Utah 1905, which provided for the appointment of appraisers in. inheritance tax eases. Said act of 1905 also contained a provision (section 26) for the payment of costs- of the proceedings in practically the same manner as is now provided for by section 3210. In 1915, without amending or repealing section 26 (3210) of the act of 1905, the Legislature, for the first time, enacted section 1220x3 of chapter 28, Laws Utah 1915, which is identical with section 3188, supra, providing for the payment of the per diem and expenses of the appraisers out of the state treasury. Both of these sections were carried forward without change to the Comp. Laws Utah 1917. In 1919 the Legislature, without amending or repealing section 3188 (1220x3), re-enacted section 3210, supra. It is quite evident from the history of the enactment of the sections under consideration that it was the intention of the Legislature that both of them should stand, so neither of said sections may now be consistently held repealed by implication. Neither the plaintiffs nor the Attorney General makes the contention that either of said sections was so repealed. The Attorney General contends that the expression “all costs of the proceedings” within the meaning of section 3210 includes appraisers’ per diem and expenses in all' cases where property passes subject to the payment of a tax under our inheritance tax laws; that the estates are legally chargeable .therewith notwithstanding it'is provided by section 3188 that their per diem and expenses” are “to be paid out of the state treasury as other officers are paid.” On the other hand, plaintiffs’ counsel contend that section 3210 has nothing whatever to do with the payment of appraisers’ compensation or per diem, but that the word “costs,” as used in said section, means the usual costs that attend a civil pro — 362 — ceeding as provided by chapter 4 of our Code of Civil Procedure, and that such costs should not be held to include appraisers’ per diem and expenses while discharging a public duty. The discussion on the part of the respective parties has taken a wide range, particularly with respect'to what may have been the purposes of the Legislature in the enactment of section 3188. The Attorney General argues that the purpose of this section was merely to fix the per diem of the appraisers and to afford a convenient and expeditious method whereby they eopld obtain their per diem and expenses after services have been rendered by them, and that ultimately the estate should reimburse the state for the amount paid out by the State Treasurer to the appraisers. Of necessity, then, he must contend that the provision of section 3210 applies, and that estates are chargeable with the appraisers’ per diem and expenses, and that such are included in the term “all costs,” as that expression is used in connection with “proceedings had for determining the amount of such tax,” etc. Plaintiffs contend that the two sections under consideration have no connection with each other, more especially with respect to the “per diem” and “expenses” of appraisers and “costs” as those words were intended to be used by the Legislature. In other words, that the expression “all costs of the proceedings,” as appears in section 3210, does not mean or include the compensation or per liem and necessary expenses of appraisers provided for in section 3188, but that those words refer to separate and wholly independent matters. . We have heretofore referred, somewhat in detail, to the history of the legislation leading up to our present inheritance law tax. It has been seen that provisions similar to those contained in section 3210 have been a part of our statutes since 1905, .long before the enactment of section 3188. In this connection it is to be noticed that section 3210 was amended as late as 1919, but that nowhere under our inheritance tax law since the first enactment in 1901 has it ever been made the duty of the Attorney General to present a claim against an estate subject to an inheritance — 363 — tax for appraisers’ per diem or tbeir expenses. While under section 3198, Laws Utah 1919, the Attorney General is expressly declared to be ex officio the collector of all inheritance taxes arising under the laws of the state, and in that regard his duties have been expressly defined in that and other sections of the act, it is significant to note that nowhere is the Attorney General or any other officer expressly charged, if at all, with the duty of collecting the per diem and expenses of appraisers from the estates subject to a tax. Of course, an inheritance tax, strictly speaking, is not a tax on property, but is based on the principle that the right to take property by devise or descent is not a natural right, but one permitted by authority of law only. It therefore follows that the right to impose conditions upon the transfer of or succession to property belonging to the estates of decedents may be rightfully imposed by statute. Nevertheless any conditions governing the transfer, or imposing a tax therefor, should be found from a reading of the statute either expressed or reasonably implied. The right of succession or the taking of property of deceased persons, is a valuable right universally granted and recognized under the law from time immemorial . While conditions are frequently imposed in the way of a tax upon the transfer of such property, nevertheless any condition sought to be imposed must be based on some provision of the law authorizing it. If the conditions are not clearly expressed or may not be reasonably implied, then no valid ground exists for imposing them. Ordinarily, when a section of a statute treats of some particular matter or thing in plain and unambiguous language without qualification or reference to some other section, we seek no further for legislative intent or expression on that particular subject. Then again we think the manner in which the appraisers are chosen or appointed has an important bearing on the question involved. Comp. Laws Utah 1917, § 3187, provides: “In eacli county the court shall annually appoint three competent residents and freeholders of said county to act as appraisers of all property within its jurisdiction which is charged or sought to be charged with an inheritance tax. * * * Said appraisers shall — 364 — serve for one year and until their successors are appointed and qualified. They shall each take an oath to faithfully and impartially perform the duties of the office hut shall not he required to give bond.” (Italics ours.) To all intents and purposes these appraisers are public officers appointed to perform and discharge a public duty. Section 3188 fixes their per diem or compensation for actual services rendered by them on behalf of the public. What good reason, then, can be assigned why the state should not pay for public services? Are not officers, for services rendered by them in the interest of the public, generally paid out of public funds, and the state’s interest thereby better sub-served? Presumably the Legislature took the common sense view that appraisers of estates of deceased persons, under the inheritance tax law, should be as far removed from private interests and influences as possible when, by section 3188, it was provided their compensation for actual services and such necessary expenses incurred in the performance of strictly public duties shall “be paid out of the state treasury as other state officers are paid.’’ Manifestly we think this provision of the statute providing for the payment of this particular service out of the state treasury was reasonable, just, and sound, and that the Legislature meant no more nor any less than is there said. Not only that, but the Legislature emphasized the importance of its purposes by providing in the same section that— “Any appraiser appointed under this title [compensation of appraisers] who shall take any fee or reward from any executor, administrator, trustee, legatee, next of kin, or heir of any decedent, or from any other person liable to pay said tax or any portion thereof, shall he guilty of a misdemeanor.” / By what process of reasoning, then,, may the courts arrive at the conclusion that the provisions referred to were merely intended to afford a ready and convenient method of paying for the services of appraisers and that ultimately it becomes the duty of the Attorney General to collect for such services from the estates? Comp. Laws Utah 1917, § 5847, as one of our rules for the construction of statutes, provides: — 365 — “Words ánd phrases are construed according to the context and the approved usage of the language; but technical words and phrases, and such others as have acquired a peculiar and appropriate meaning in law, or are defined by statute, are to be construed according to such peculiar and appropriate meaning or definition.” Tbe rule above stated is one of so universal application and so generally followed by tbe decisions of all courts; tbat we need not cite eases. Tbe sections of our statutes now under consideration are in tbeir provisions absolutely plain and unambiguous. They do not conflict. Construing section 3210 according to tbe context, tbat section deals with “costs against an estate.” Not a word is said in tbat section from beginning to end concerning appraisers, tbeir duties, fees, or compensation. The manner of their appointment, qualification, and the service rendered by them to tbe state are no part of the proceedings in any particular ease or probate matter. Costs and fees are readily distinguishable, and each has “a peculiar and appropriate meaning in law.” Many eases are cited in 3 Words and Phrases, First Series, p. 2714, to tbat effect. By way of illustration we may cite one case, Tillman v. Wood, 58 Ala. 578, wherein it is said: “Costs and fees were originally altogether different in their nature. One is an allowance to a party for expenses incurred in prosecuting or defending a suit; the other, a compensation to an officer for services rendered in the progress of the cause. * * * There is in our statute a manifest difference between costs and fees in another respect. Costs are an allowance to a party for the expenses incurred in prosecuting or defending a suit and incident to the judgment; while fees are compensation to public officers for services rendered individuals not in the course of litigation.” True, iu the litigation of matters before a court, it is some- • times provided by statute that tbe fees of public officers for services rendered may be taxed or charged against a party, but such charges are not permissible unless expressly so authorized. It is absolutely certain that there is no express authorization in section 3210, upon which the Attorney General relies — 366 — in this case, to tax the per diem and expenses of appraisers to the estates, but, to the contrary, our Legislature has expressly provided that their per diem for actual services and such necessary expenses incurred in the performance of their duties shall be paid out of the state treasury as other officers are paid. The court has nothing to do with the fixing of their per diem, nor does the court appoint them in the course of the proceedings of any particular estate to act for that estate. They are called upon to discharge their duties as the state’s agents or officials precisely as is the Attorney General or any other public officer who has a public duty to perform. Why, then, impose the duty of paying them on the taxpayer, in this instance on the Wall estate, which has already paid into the state treasury, .as our inheritance law directs, $67,010.91. If there be any doubt about the intention of the Legislature, after reading the plain provisions of section 3188, it should be kept in mind that in all cases of doubt the law favors the taxpayer. We are clearly of the opinion that the Attorney General’s act in demanding of the estate in question that the state be reimbursed was wholly unauthorized by law; that the State Treasurer should be required to receipt the plaintiffs for the inheritance tax paid, as applied for in this ease. It is therefore ordered that the judgment of the district court dismissing plaintiffs’ petition on demurrer be, and the same is hereby vacated and set aside. Costs to plaintiffs. GIDEON, J., concurs.