Summary
In Bloss v. Lewis, 109 Cal. 493, it was held that section 195 of the County Government Act, providing different clerks' fees to be paid to the county clerk in estates of deceased persons in counties of the thirty-third class from that provided for in other counties of the state, was unconstitutional.
Summary of this case from City of Tulare v. HevrenOpinion
Department One
Appeal from a judgment of the Superior Court of Stanislaus County. William O. Minor, Judge.
COUNSEL:
Section 195 of the County Government Act of March 31, 1891, violates the provision of the constitution in that it is a tax, and having by its terms a local operation, is special legislation. (People v. Martin , 60 Cal. 155; Const., arts. I, IV, secs. 11, 12, 25; Earle v. San Francisco Board of Education , 55 Cal. 491; Dougherty v. Austin , 94 Cal. 620, 621, 634, 635; Welsh v. Bramlet, 98 Cal 219, 227; San Luis Obispo County v. Graves , 84 Cal. 71.) Except for the sole purpose of fixing the compensation of county officers in proportion to their duties, the duty of the legislature was and is to establish a system of county governments which shall be uniform throughout the state. (Welsh v. Bramlet, supra ; San Luis Obispo County v. Graves, supra; Const., art. XI, secs. 4, 5; City of Pasadena v. Stimson , 91 Cal. 239; Dougherty v. Austin, supra .)
James F. Peck, for Appellant.
L. W. Fulkerth, for Respondent.
The act in question is not unconstitutional, as its object is to fix, regulate, and provide for the payment of the compensation of county officers, nor is it special legislation. (Pol. Code, sec. 4331; Longan v. Solano County , 65 Cal. 125; Cooley's Constitutional Limitations, 159.)
JUDGES: Vanclief, C. Searls, C., and Haynes, C., concurred. Harrison, J., Garoutte, J., Van Fleet, J.
OPINION
VANCLIEF, Judge
This appeal is from a judgment of the superior court of the county of Stanislaus denying a peremptory writ of mandate petitioned for by appellant.
The verified petition for the writ shows that the petitioner was one of the two executors of the will of John W. Mitchell, deceased, who at the time of his death, in November, 1893, was a resident of said county, and left estate therein and in the counties of Madera, Fresno, and Merced, an inventory and appraisement of which had been made according to law, said estate, real and personal, having been appraised at one million three hundred and sixty-four thousand three hundred and sixty-seven dollars and sixty-five cents.
That in May, 1894, the petitioner and his coexecutor returned such inventory and appraisement in due form to the superior court of the county of Stanislaus, in which court said will had been proved and in which proceedings for the settlement of said estate were then pending, and offered the same to the defendant, clerk of said court, and demanded that he receive and file the same, and then and there tendered to said clerk twenty-five dollars in payment of the lawful fees for filing said inventory and appraisement, and at the same time requested that the surplus of said twenty-five dollars, if any there should be, over and above such fees, be credited on account of fees thereafter to accrue in the matter of said estate; but the defendant clerk then refused, ever since has refused, and still refuses to receive or to file said inventory or appraisement, by reason whereof said executors have been prevented from making return of said inventory to said court as required by law. Wherefore, petitioner prays for the writ of mandate commanding the clerk to receive and file said inventory.
An alternative writ was ordered, issued, and served, and the defendant showed cause for not having obeyed it by demurring to the petition on the sole ground that it does not state sufficient facts to entitle petitioner to the writ, or any relief whatever. The court sustained the demurrer, and upon the refusal of petitioner to amend his petition rendered judgment denying a peremptory writ.
Under the classification of counties for the purpose of regulating the compensation of county officers by the County Government Act of March 31, 1891, the county of Stanislaus belongs to the thirty-third class, the county clerk of which, by section 195 of said act (Stats. 1891, p. 397) is entitled to a salary of "three thousand dollars per annum; provided, that such clerk shall collect and pay into the county treasury, for the use and benefit of the county, the following prescribed fees, to wit": Here follows a list of fees, other than those allowed in probate proceedings, as to which that section makes the following provision: "For filing papers and issuing letters testamentary, or of administration, guardianship, or special administration, in any case, two dollars. For services up to and including the final settlement of the case, in which the value of the estate does not exceed five thousand dollars, except as hereinafter provided, ten dollars, and one dollar for each additional one thousand dollars in value, as shown by the inventory."
Respondent contends that the demurrer was properly sustained on the ground that the petition does not state nor show that the executors tendered to the clerk one dollar for each thousand dollars valuation of the estate as shown by the inventory additional to five thousand dollars, which, in this [41 P. 1082] case, amounted to thirteen hundred and fifty-eight dollars; and it is not claimed that the petition is otherwise deficient, nor that the tender of twenty-five dollars was not sufficient to pay all fees which could have been lawfully demanded, except the one dollar for each thousand dollars' valuation of the estate over five thousand dollars, as shown by the inventory. Therefore, the only question presented for decision is whether or not the clerk was authorized to demand a fee equal to the amount of a dollar for every thousand dollars in excess of five thousand dollars of the appraised value of the estate, as a condition precedent to his duty to accept and file the inventory.
If the one hundred and ninety-fifth section of the County Government Act of March 31, 1891, is not repugnant to the constitution of the state, it is perfectly clear that it authorized the clerk to demand and collect the fee in question, and that he properly refused to accept or file the inventory without the payment or tender of such fee by or on behalf of the executors of the estate.
But the appellant contends that, in so far as said section 195 purports to authorize or require the clerk to demand or collect a fee of one dollar on each thousand dollars' valuation of estates of deceased persons in excess of five thousand dollars, it is repugnant to the state constitution, and therefore void; and in so contending I think he is fully warranted by the authorities.
In thus fixing a fee for the official service of the clerk, the provision in question violates section 4, article XI, which commands the legislature to establish "a system of county governments which shall be uniform throughout the state" (Welsh v. Bramlet , 98 Cal. 219); and also violates section 11, article I, requiring that, "All laws of a general nature shall have a uniform operation"; since there is no perceptible or conceivable reason why the fee or tax in question should be exacted in any one county rather than in any other. (Dougherty v. Austin , 94 Cal. 620.) It is also repugnant to subdivision 33 of section 25, article IV, forbidding local or special laws, "in all other cases where a general law can be made applicable"; for surely the provision of section 195 of the County Government Act in question can be made general, and uniformly applicable to all counties in the state, laying aside, as we may for the purpose in hand, all considerations relating to the necessity or policy of such a general law.
The only ground upon which the provision in question is claimed to be a general law is that it operates uniformly upon a class of counties authorized by the constitution itself. But the constitution (article XI, section 5) authorizes a classification of counties only for the purpose of regulating the compensation of county officers according to duties; which purpose is not promoted nor affected in any degree by the provision in question. In the county of Stanislaus the county clerk and all other county officers, except coroner and public administrator, are compensated by fixed salaries to be paid from the county treasury, the payment of which is no more dependent upon the tax or fee in question than they are upon any other source of an equal amount of county revenue. This tax or fee required to be collected from estates of deceased persons, like all other fees collected by the clerk and other county officers, is to be paid into the county treasury for the use of the county, and thence applied to the payment of any lawful demand against the county. True, they are primarily to be apportioned to the salary fund, but subdivision 20 of section 25 of the County Government Act, which authorizes the establishment of a salary fund and such other funds as deemed necessary, also authorizes the board of supervisors "to transfer moneys from one fund to another as the public interest may require"; so that when the salary fund is deficient, money from other sources than fees may be transferred to it; and when there is a surplus in the salary fund, it may be transferred to the county bond fund, or any other fund, "as the public interest may require." Therefore, from no view of the subject does it appear that the tax or fee in question has the slightest tendency to regulate the compensation of the county clerk, or that of any other officer of the county, according to the duties of such officer, unless it can be seen that the performance of the duty of filing an inventory of the estate of a deceased person in the county of Stanislaus should be paid five thousand times as much as is required to be paid for the performance of the same duty in the adjoining county of Merced.
Should it be suggested that the classification of counties, authorized by the constitution for the purpose of regulating the compensation of county officers according to duties, is also appropriate for the purpose of apportioning uniform taxation, or for the purpose of regulating fees for services of county officers whose compensations are regulated by fixed salaries, and which fees are to be paid, as part of the county revenue, into the county treasury, a full and satisfactory answer to such suggestion may be found in the following cases: City of Pasadena v. Stimson , 91 Cal. 238; Dougherty v. Austin, supra ; Welsh v. Bramlet, supra ; Darcy v. Mayor of San Jose , 104 Cal. 642. These cases evolve from the authorities the principle upon which classification for the purpose of general legislation must be based. The conclusion reached in the first of these cases is expressed as follows: "That, although a law is general and constitutional when it applies equally to all persons embraced in a class founded upon some natural or intrinsic or constitutional distinction, it is not general nor constitutional if it confers particular privileges or imposes peculiar disabilities or burdensome conditions, in the exercise of a common right, upon a class of persons arbitrarily selected from the general body of those who stand in precisely the same relation to the subject of the law."
In Darcy v. Mayor of San Jose, supra, it was said: "It will not be presumed that it was intended to deprive the legislature of all power [41 P. 1083] to adapt its laws to the varying conditions of its inhabitants. From necessity it has been held that the legislature may classify in order that it may adapt its legislation to the needs of the people. If this cannot be done, laws will not always bear equally upon the people. This classification, however, must be founded upon differences which are either defined by the constitution or natural, and which will suggest a reason which might rationally be held to justify the diversity in the legislation. It must not be arbitrary, for the mere purpose of classification, that legislation really local or special may seem to be general, but for the purpose of meeting different conditions naturally requiring different legislation."
What is the difference in the condition of the people or their property in the county of Stanislaus from that of the people or property of other counties, which requires or justifies a law compelling estates of deceased persons in that county to pay more for filing a paper in the office of the clerk of the superior court than is required to be paid by such estates for the same service in any other county in the state? The obvious reason for classifying counties for the purpose of regulating the compensation of officers according to service is that much more official service is required in some counties than in others, the purpose of the classification being to effect equality of compensation for like services of county officers throughout the state; whereas, the effect of the law in question is diversity and inequality of official fees for like services, without affecting the compensation of officers in any way.
I think the judgment should be reversed, and the cause remanded, with instruction to overrule the demurrer.
For the reasons given in the foregoing opinion the judgment is reversed and the cause remanded, with instruction to overrule the demurrer to the petition.