Fatjo v. Pfister

Beatty, C. J. Plaintiffs are the executors of the will of Mariano Malarin, deceased, and the defendant is the clerk of the superior court of Santa Clara county.

On June 18, 1895, said executors presented to said clerk the inventory and appraisement of the estate of said decedent and requested him to file the same, and tendered as fees for said and other services rendered prior thereto the sum of twenty dollars. The value of said estate, as shown by said inventory and appraisement, is two hundred and forty-three thousand five hundred and four dollars and seventy cents; and the clerk demanded as fees for said filing two hundred and forty dollars, and refused to file said inventory and appraisement unless said sum should be paid.

Plaintiffs thereupon petitioned said superior court for a writ of mandate requiring said clerk to file said inventory and appraisement; the clerk answered said petition, and, upon the hearing, the court denied the prayer of the petitioners, and from that judgment they appeal.

The only question involved in the case is the constitutionality of the act of March 28, 1895, entitled “An act to establish the fees of county, township, and other officers, and of jurors and witnesses in this state.” (Stats. 1895, p. 267.) Said act, so far as it is necessary to quote it, is as follows:

[85]“Section 1. The following county, township, and other officers shall charge and collect the following fees: County Clerk. On the commencement of any action or proceeding in the superior court, except probate proceedings, or on appeal thereto, to tie paid by the party commencing such action or proceeding, or taking such appeal, five dollars. On the filing of a petition for letters of administration, testamentary, or guardianship, five dollars, to be paid by the petitioner; provided, that at the time of filing the inventory and appraisement in any such proceeding there shall be an additional deposit of one dollar for each additional thousand dollars of the appraised valuation in excess of three thousand dollars.”

The act proceeds to fix the fees for filing a petition to contest a will or codicil, and the fees to be paid by defendants in civil cases, and for copies, certificates, and other enumerated services, and in like manner fixes the fees of sheriffs, recorders, and other officers.

It is conceded that, if the provision above quoted relating to the filing of the inventory and appraisement of the estates of deceased persons in cases where the valuation exceeds three thousand dollars is constitutional, the fee demanded by the clerk was the proper legal fee; but if said provision is unconstitutional, that the fee tendered by the petitioners was sufficient.