dissenting. In this action an alternative writ of mandamus was issued oh the petition of the adminis*481trators of the estate of Edward Sanderson, deceased, out of the circuit court of Milwaukee county, directed to the respondent as county judge of said county, commanding him to proceed at once to accept, approve, and file the inventory and appraisal, and thereafter proceed to the allowance and settlement of any account that may be filed by said administrators, and to the settlement of said estate according to law, and without the payment by said administrators to the county treasurer of said county of the sum of $2,631.95, or any sum whatever, or that he may show cause to the contrary thereof, etc. Upon the service of such writ the respondent appeared by John Toohey, his attorney, and the attorneys stipulated that in this proceeding the circuit court may take judicial notice of the population of the several counties of the state, as evidenced by the last official census. After filing this stipulation, the respondent, by his attorney, moved to quash the writ for the reason that the relator, as appears by the relation herein on file, has not complied with the provisions of chapter 176 of the Laws of Wisconsin for 1889. The circuit court quashed the writ, and from the order quashing the same the relators appeal to this court.
The whole controversy in this case depends upon the validity of said ch. 176, Laws of 1889. On the part of th¿ appellant, it is claimed that said chapter is unconstitutional and void, and so the county court could not lawfully refuse to accept the inventory presented by said administrators, and proceed to the allowance of their accounts and the settlement of said estate, without the payment of said sum of $2,631.95; and it is admitted that, if said law is a valid law, then the writ was properly quashed. The law is set out in the statement of the case made in the opinion of this court. The main reason for attacking this law as an unconstitutional law is based upon the contention that the sums required to be paid by said law to the county treasurer are a tax, within the meaning of sec. 1, art. YIII of the *482constitution, that being the article on finance. Although I am not satisfied that the act would be unconstitutional if it could be construed as levying a tax within the meaning of said sec. 1 of the finance article, still I base my opinion as to the validity of the act on the ground that it is not a tax, within the meaning of sec. 1 of said article, and is, as it professes to be, an act passed to create a fund for the payment of the expenses of the county court of Milwaukee .county, including the salary of the county judge.
I think it cannot be contended with any degree of plausibility that the county court of Milwaukee county is now anything more than a probate court, as that court existed at the time of the adoption of the constitution, and which court was recognized by the constitution. Since the jurisdiction of that court to hear and try civil actions at law and in equity has been taken away, it is simply an inferior court created by law, and upon which the jurisdiction of the probate court, as it existed at the time the constitution was adopted and for some years afterwards, was transferred by law, as authorized by the provision in sec. 14, art. YII, of the constitution. Said sec. 14 reads as follows: “ There shall be chosen in each county, by the qualified electors thereof, a judge of probate, who shall hold his office for two years, and until his successor shall be elected and qualified, and whose jurisdiction, powers, and duties shall be prescribed by law: provided, however, that the legislature shall have power to abolish the office of judge of probate in any county and to confer probate powers upon such inferior courts as may be established in said county.” Acting under the authority given by this section of the constitution, the legislature, in the adoption of the Revised Statutes of 1849, abolished the probate courts in this state, and. created a county court in each organized county of the state, and conferred the probate powers upon such county courts, and also limited jurisdiction to try civil actions. See ch. 85, R. S. 1849.
*483At the time of the adoption of the constitution, and after-wards until the revision of 1849, the probate courts were supported wholly by fees given to the probate judges, and collected from the persons having business in said courts. After the creation of the county courts, and the transfer of the probate powers and jurisdiction to said courts in 1849, the county courts were maintained and the judges paid by fees imposed on persons transacting business in said courts, and the county judges were also paid for their services in. the exercise of their jurisdiction as courts having jurisdiction of civil actions by fees and a per diem allowance. See secs. 6, 7, ch. 131, R. S. 1849.
In 1854 the act conferring jurisdiction upon the county courts in civil actions was repealed as to all the county courts except the county court of Milwaukee county. ■ See ch. 93, Laws of 1854. See. 1 of said act reads as follows: “ All the provisions of ch. 86 of the Revised Statutes [1849], and all other provisions of law conferring upon county courts jurisdiction to try and determine civil actions, appeals, or certioraris, are hereby repealed: provided, that this act shall not affect the jurisdiction of said court in respect to probate matters or proceedings, and shall not apply to or affect the county court of the county of Mil-v'aukee.” This act took effect July 1, 1854.
By ch. 86, R. S. 1849, and ch. 93, Laws of 1854, the jurisdiction of the probate courts, as they existed before 1849, was simply transferred to the county courts, and the county courts in all the counties in the state had no other jurisdiction than such as had been theretofore exercised by the probate courts, except as to the count}'- court of Milwaukee county. Since 1854 jurisdiction in civil actions has been conferred on several of the county courts of the state, in some cases temporarily; and in 1878, when the Revised Statutes of that year were enacted, there were four county courts exercising limited jurisdiction in civil actions, viz., *484Milwaukee, Winnebago, Fond du Lao, and Dodge. All other county courts were simply exercising the jurisdiction pertaining to probate courts alone; and the expenses of these courts, and the compensation of the judges, were provided for by a fee-bill, and the fees werq collected from the persons having business transacted in said county courts. The method of paying the county judges by fees continued down to 1868, when ch. 121, Laws of 1868, was enacted, which provides for giving the county judges salaries in lieu of fees in all the counties in the state except in those counties in which the county courts had civil jurisdiction; and in those counties in which salaries were given to the judges they were prohibited from taking fees, and in such counties certain fixed sums, graduated according to the value of the estates to be administered upon, were required to be paid .by the executor, administrator, or guardian to the county treasurer, for the use and benefit of the county, and the court was prohibited from allowing the account of any executor, etc., until satisfactory proof was made of the payment of the sum fixed by the statute. Oh. 140, Laws of 1868, made certain provisions relating to the record-books to be kept in the offices of the several county courts, but Milwaukee county was excepted from the provisions of this act, also. Oh. 54, Laws of 1871, amended the law so that the act of 1868 should apply to Manitowoc, although the county court in that county had a very limited jurisdiction in civil actions. Ch. 40, Laws of 1872, simply repealed sec. 4, ch. 121, Laws of 1868, giving compensation instead of fees, and so leaving the administration of all estates in all the counties free, and the expenses of the courts, including the salaries of the judges, a public charge to be paid out of the public money, except those in which the county courts had civil jurisdiction; and in those counties the fee-bill for services for probate matters remained in force. By ch. 98, Laws of 1877, a salary of $5,000 was *485given to the county judge of Milwaukee county, and all fees for probate or other services of the county judge were abolished; and sec. 4 of said act declared that the provisions of sec. 4, ch. 121, Laws of 1868, should apply to Milwaukee county. This was the section which required certain fixed sums to be paid by executors, etc., to the county treasurer for the use of the county, etc. The county judges of the other county courts having civil jurisdiction, and in which the fee system was not abolished by ch. 121, Laws of 1868, were Dodge, Eond du Lac, and "Winnebago. So that by ch. 121, Laws of 1868, ch. 40, Laws of 1872, which repealed sec. 4 of said ch. 121, and ch. 98, Laws of 1877, which repealed the fee-bill as to the county court of Milwaukee county, and adopted sec. 4, ch. 121, Laws of 1868, in place of the fee-bill, we had this state of things in the state in regard to the county courts in respect to probate matters: In most of the counties the counties paid' all the expenses of probate matters. In those counties in which the county courts had civil jurisdiction, except in Milwaukee county, the expenses of the court on probate matters were paid by the collection of fees from the parties having business done in said courts. And in Milwaukee county the expenses of the court as to probate matters were paid, in part at least, by the collection of certain fixed sums from the executors, etc., having business in said court. There were then three systems of paying for the probate business in the state.
The manner of paying the expenses of the probate business in the other counties, except Milwaukee, in which the county courts have civil jurisdiction, has been changed since 1868; and the judges in those counties receive salaries, either fixed by special law or by the county board of their respective counties. I have only cited the statutes showing the existence of the different methods of paying the expenses of probate business in the different counties down to 1877 for the purpose of making it plain that since *4861868 there has been no uniform, manner of paying such expenses in all the counties of the state, and that no one has questioned the validity of the acts of the legislature creating such diversity of methods in the different counties of the state until the act of 1889 was passed, the validity of which is questioned in this case.
I think it is very clear, from a consideration of the several provisions of our constitution, that it was intended to give the legislature of the state power to collect from the persons requiring the services of our courts, including the probate court and such other courts as might be thereafter created by the legislature, in some shape, a sufficient sum of money to pay the expenses of the court, including the salaries of the judges, should the legislature in its discretion see fit to do so. Sec. 18 of art. YII of the constitution, which is the judiciary article, directs the legislature as follows, viz.: “ The legislature shall impose a tax on all civil suits 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.” This provision of the constitution, at the time of its .adoption, could only apply to actions in civil cases in the circuit courts, as there were no other courts having original jurisdiction of civil actions, except justices’ courts. It was well known that judicial proceedings in probate courts and courts of justices of the peace were paid for by fees charged against the parties having business in such courts, and there is nothing to be found in the constitution which has a tendency to show that the power to continue the same or a similar practice for supporting the administration of the probate courts and justices’ courts, was intended to be prohibited. Sec. 18, above quoted, is a clear indication that notwithstanding the constitution had prescribed that fixed salaries should be paid to the circuit judges (see sec. 10, art. YII), there was no intention that such salaries should be paid by *487the people at large, but that they should be paid by those having occasion to use the courts, the same as they were required to pay the sheriffs, clerks, and other officers whose services might be required in the administration of justice.
The jurisdiction of all courts in the state, and the manner of their support, except the supreme and circuit courts, was left entirely to the discretion of the legislature. See secs. 3, 14, 15, art. YII, Const. There is nothing in the constitution which in any way directs in what manner justices of the peace, judges of probate, or judges of municipal or inferior courts shall be paid for their services, nor is there anything which prohibits the. legislature from, providing that those who desire the services of such courts shall pay the justices, judges, and other officers of such courts for the services rendered by them; and for twenty years after the adoption of the constitution the judges of the inferior courts created by the legislature were in the main paid by way of fees for services, and the justices of the peace are still paid in that way.
It is quite evident that the men who framed our constitution did not understand that the provisions of sec. 9 of art. I of the declaration of rights would prevent the legislature from enacting laws to compel those using the courts to contribute to their support. What that article does prohibit need not be further considered in this case, as it is clear that it was not intended to stand in the way of compelling those who use the powers of the courts to contribute to their support. The same men who said in sec. 9, art. I, that every one “ ought to obtain justice freely, and without being obliged to purchase it,” said in sec. 18, art. YII, that the legislature should make every one who brought a civil action in any of our courts pay a tax to raise a fund to pay the salary of the judges. It is clear, therefore, that the constitution makers did not intend that the state should furnish courts of justice which should be absolutely free *488to the suitors therein. It cannot be very well argued that because the constitution, in sec. 18, art. VII, directs the legislature to levy a tax on all civil actions to raise a fund for the payment of the salaries of the judges, no other way could be resorted to for paying such salaries and the expenses of the courts having no jurisdiction in civil cases. Such judges have no salaries provided by the constitution; and consequently whether their compensation shall be in the shape of salaries or fees, or a fixed sum to be paid by those desiring the services of these courts, must be left to the discretion, of the legislature. There is no other power in the state authorized to determine the manner of their payment. There is nothing in sec. 18, art. VII, which directs the legislature to impose a tax on all civil suits commenced in certain courts, which requires the legislature to impose a uniform tax on all such suits. The amount of the tax to be imposed is left to the discretion of the legislature, as well as the amount in each case. This sec. 18, it seems to me, has no connection with sec. 1 of the finance article; and the taxes required to be imposed by sec. 18 are not regulated or controlled by said sec. 1. The tax mentioned in sec. 18 is evidently not the kind of tax referred to and regulated by said sec. 1. Nor can it be urged, with any degree of fair interpretation of the constitution, that fees imposed upon suitors in courts of any kind, whether exercising jurisdiction in civil cases, as in justices’ courts, or exercising probate powers, as in most of the county courts of this state, are taxes within the meaning of said sec. 1, art. VIII, of the constitution. The power to make these courts self-supporting was clearly left to the discretion of the legislature by the constitution; and the imposition of fees, or other reasonable methods for providing for the support and maintenance of such courts, was clearly left to the action of the legislature, and was not in the least controlled by the provision in regard to the finances of the state, or *489the taxing power. That this has been the understanding of the legislature, and, so far as I know, of the bar of the state, down to the present time, is shown by the numerous acts of the legislature upon the subject, and the acquiescence of all parties interested in the administration of such laws.
Again, in considering the validity of the law in question, we must take into consideration the fact that under the constitution the powers and jurisdiction of the probate courts are to be fixed by the legislature, and the other courts upon which probate powers may, under the constitution, be conferred by the legislature are to be created, and their jurisdiction prescribed, by the legislature; and, in view of some of the objections made to this law, it must also be borne in mind that under the constitution the legislature were not compelled to provide courts of a similar character in each county of the state, by which the probate powers should be exercised. Under sec. 14, art. VII, the legislature might have established an inferior court in one or more counties of the state, and have conferred probate powers upon such inferior court or courts, and have permitted the constitutional probate courts to have remained in the other counties. Under the constitution, uniformity as to the jurisdiction of the courts which may exercise such powers is not required, but it is expressly provided that courts having no uniformity of jurisdiction may exercise such powers. It seems to me that learned counsel would not contend that, under the powers conferred by sec. 14 of art. VII, the legislature could not create an inferior court in any one county of the state, and confer probate powers on such court, and permit the probate courts, as they existed-at the time of the adoption of the constitution, to exercise their powers in all the other counties of the state; nor do I think counsel would claim that the legislature could not, in the establishment of such inferior court in the one county, fix the fees for the services to be rendered *490in probate matters either higher or lower than in the other counties, or no fee-bill in the probate courts and a fee-bill in the inferior courts. It certainly cannot be said that fees for services performed for suitors in the courts are taxes, within the meaning of sec. 1 of the finance article, and must therefore be uniform throughout the state.
I think I have shown that there is no constitutional objection to having a diversity of courts in the different counties, having a diversity of jurisdiction, in which the probate powers may be exercised, and that a diversity as to the fee-bills in the different courts would not be a violation of the constitution; and, having shown that the legislature has the power under the constitution to create an inferior court in the county of Milwaukee, and confer upon' that court the powers of the probate court, and to fix tbe fees to be paid to such court in probate proceedings, and has also the power to permit the probate judges to exorcise their functions in the other counties of the state, the legislature would also have the power to abolish the fee-bill in the probate courts, and. to permit the collection of fees in the inferior court of Milwaukee county, without infringing any provision of the constitution of the state.
It seems to me that it is very clear that the framers of the constitution intended to leave it in the discretion of the legislature to say whether the courts having probate jurisdiction should,be self-supporting or not; and, if that be conceded, then it is clear that, in the absence of any restriction in the constitution, it is for the legislature to say in what manner those requiring the services of such courts shall contribute to such support. That the legislature may require those who desire such services to pay fees for services performed is fully admitted by all, and, that being admitted, it would seem to follow that the legislature may also, in its discretion, require those using such courts to contribute to their support in some other way which will *491accomplish the same end, and may therefore require the suitors to pay a gross sum for all services in a particular case, instead of a fee for each particular service; and, this being admitted, the basis upon which the contribution shall be made must necessarily rest in the discretion of the legislature, and that it may make such basis for contribution depend upon the amount and value of the estate to be settled and distributed by said court would seem to be at least a reasonable method of fixing the quantum of the contributions. It certainly is not such an unjust and absurd basis of fixing the burdens as will justify this court in saying that it is unauthorized, or an unconstitutional method of doing it; nor do I understand this court to hold the law void upon any such grounds.
The decision is based upon the grounds —first, that the imposition of the burden upon the suitor is a tax, within the meaning of the section in the finance article, and then holding it void as a law levying a tax, because the taxation provided by the law violates the rule of uniformity; and, secondly, because, it being a law applicable only to the county of Milwaukee, it is a private or local law imposing a tax in violation of the amendment to the constitution which prohibits the legislature from enacting any “ special or private law for the assessment or collection of taxes, or extending the time for the collection thereof.”
It is urged as one reason for holding that the law imposes a tax, within the meaning of sec. 1 of art. VIII, and the amendment to art. IV of the constitution, because the money paid is required to be paid into the county treasury, and is then disbursed like any of the other public funds. It seems to me that this argument has very little weight in establishing the fact that it is a tax. It may be a legitimate argument to say that funds which are collected and paid into the treasury to be disbursed for public purposes are in the nature of a tax, but, if the money so collected is not essen*492tially a tax, the use that the public may make of it would not make it a tax within the provisions of the constitution. The act says that the charges made against the estates of deceased persons, when such estates are settled and distributed by the probate court of Milwaukee county, shall be a sum to be fixed in a certain way; and the declaration of the legislature is that these charges are to be a substitute for the fees which were formerly exacted in such cases. It is clear, therefore, that the intention of the legislature was to exact these charges for the support and maintenance of the probate court, and to reimburse the county, which under another statute was required in the first instance to pay such expenses out of the county funds. The requirement that the moneys collected should be paid into the county treasury was to supply the depletion of the county’s money which went to pay the expenses of the court. If, instead of the exaction of a gross sum of the suitors in the court, the law had required the court to collect of such suitors the fees that had theretofore been exacted in such cases, and pay the sum so collected into the county treasury to supply in whole or in part the depletion of the funds in the treasury which had been drawn therefrom to pay the salaries of the judge and register and other court expenses, the fact that the fees so collected were directed to be paid into the county treasury, to be a part of the general funds of the county, would not convert such fees into taxes, within the meaning of the constitution.
We think it must be held by the court that the legislature, in fixing the sums to be paid by the suitors, fixed them with regard to the expenses the county was compelled to incur for the maintenance of the court, and exacted only so much as would, in its opinion, create a fund equal to such expenditure. Certainly, there is no presumption that the legislature intended to raise by these exactions a greater sum than was necessarily expended for the support of the *493court. What the fact is in regard to this question is not known to this court, and we cannot, upon a mere supposition that the charges made will more than reimburse the county, declare the. statute void for the reason that it levies a tax for general purposes in a way not authorized by the constitution. It may be that the collection of the fees formerly alloAved by law and paid into the county treasury would more than pay the salaries and other expenses of the court. Still it would hardly be urged that the law which required their collection could be held void upon proof of that fact. There has been a law in force in Milwaukee county ever since 1877 giving fixed salaries to the sheriff and his deputies, paid out of the public funds of the county; and the same law requires the sheriff and his deputies to collect the same fees for services as the same officers are allowed in other counties, and pay the fees so collected into the county treasury to be disbursed as other public money. It is clear that the collection of these fees is intended to reimburse the county in whole or in part for the money paid for the salaries of the sheriff and his deputies. No one seems as yet to have questioned the validity of that law. Whether the county is the gainer or loser by this arrangement, I do not know; nor is the fact material, so far as the constitutionality of the law is concerned.
The only remaining question is as to the power of the legislature to provide for the maintenance of the inferior or county court of Milwaukee county in any other way than by prescribing fixed fees for services rendered, or by the payment of such expenses out of the public funds of the county. That these two methods are allowed by the constitution is not controverted, nor can it be successfully controverted that the legislature may adopt the one method for the courts of some of the counties in the state, and the other method for other counties. I think it cannot be successfully claimed that there is anything in the constitution *494which limits the power of the legislature to these two methods for providing for the payment of the expenses of these courts. Nothing has been pointed out in the constitution which by fair implication limits the power of the legislature to the two methods above mentioned. It is therefore clear that, under the well-established rule that the constitution is a limitation upon the legislative authority, and not a grant of such authority, the legislature may adopt such method of collecting money for the payment of the expenses of such courts in such manner and by such means as shall seem just to the legislature and for the best interest of the public, so long as in doing so no constitutional inhibition is violated. This has been the uniform interpretation which has been given to this subject b}*’ the legislature; and it has at times provided that in some of the counties the expenses of these courts shall be a general charge upon all the taxable property of the county in which the courts are situated; in other counties, that the expenses of the courts shall be paid in the shape of fees by those who require the exercise of the powers of said courts in the settlement of estates; and still in other counties, by requiring those who desire the services of the courts to pay a gross sum for such service in each case, the amount to be paid to be determined by the value of the estate to be administered upon; and it is now for the first time claimed that the third method is unconstitutional, for the reason that such method of collecting money for the payment of the expenses of said, courts is the levying of a tax upon property, and is therefore a void law, because it violates the rule of uniformity of taxation required by sec. 1, art. VIII, of the constitution, and also because it is a private or local law for levying a tax, and therefore violates sec. 31, art. IV, which prohibits such special legislation. As I have said above, it seems to me very clear that this method of raising money to pay for the services of said courts is not the levy*495ing of a tax, within the meaning of either of these provisions of the constitution, but is a charge upon suitors in said courts who desire their services, and is collected solely for the maintenance of such courts. The law does not provide for levying a tax upon the prop'erty of the estate which can by any process of law be enforced or collected from such property, but the value of the estate is referred to simply for the purpose of fixing the amount which the suitor must pay for the services of said courts.
If the amounts required to be paid by the suitors are not taxes, within the meaning of the constitutional provisions above referred to, and it be admitted, as I think it must be, that the legislature has the power to require the payment of a gross sum instead of fees in each case, then it is for the legislature to determine what the amount shall be in each case, and declare the method of ascertaining the amount which shall be paid in each case; and the discretion of the legislature in regard to that matter cannot be controlled by this court, unless in the exercise of such discretion the legislature violates some provision of the constitution. Warner v. Knox, 50 Wis. 429; People ex rel. Crowell v. Lawrence, 41 N. Y. 141.
It is said that the requirement of a fixed sum in each case is an unjust arrangement, from the admitted fact that in some cases the services performed will bo necessarily much greater than in others.- That--this objection is not one that is recognized by the constitution is clear from the fact that the constitution has required the legislature to collect a tax upon all civil actions, and leaves to the legislature the power to determine what such tax in each case shall be, and under that constitutional provision the legislature has almost uniformly levied the same tax on every case, and no question has ever been raised as to the validity of such tax. In the states of Tennessee, Arkansas, and North Oarolina the courts have held that, when the oonsti-*496tution is silent upon the subject, the legislature may impose a tax on litigation or judicial proceedings for the support of the courts, and that such tax is not a violation of the bill of rights, which, like our bill of rights, declares that “ every person is entitled to a certain remedy in the laws,” etc. It cannot be fairly argued that, because the makers of the constitution expressly required that a tax should be imposed upon every civil suit commenced in certain courts, it therefore prohibits the legislature from imposing other taxes upon judicial proceedings in the same or other courts. It is rather to be inferred that, while the constitution imposed a duty upon the legislature in the particular cases mentioned to impose a tax, they intended to leave it to the discretion of the legislature to impose or not to impose such taxes on other cases of a similar character. Being fully satisfied that under the constitution the legislature has the power to require suitors in the inferior and county courts to pay a fixed sum for the services of such courts, for the purpose of reimbursing the public for their support and maintenance, instead of requiring the payment of fees for such services, I am also satisfied that the amount of such gross sum, and the manner of determining the amount to be paid in each case, is a matter for the exercise of the discretion of the legislature; and the remedy for unequal and unjust legislation upon this subject is by an appeal to the legislative power, and not to the courts.
It is urged that the law is unequal and unjust because it does not impose any charge upon estates of a less value than $3,000, and that it is also unjust because it imposes a very large sum upon very large estates, and because it imposes such burdens upon the value of the estates irrespective of the fact that there may be large debts against the estates which, when paid, will leave but little for the beneficiaries. For myself, I do not perceive that any great injustice is done by this method of fixing the charges to be *497paid; but, if this method of imposing the burden upon the estates is not the most just and equal that could be devised, that fact is no good reason for this court holding the law void so long as no constitutional limit of the power of the legislature has been violated. If the law be unwise or unjust, it may well be left to the discretion and judgment of the legislature to remedy it when that fact is made to appear.
As was said by the great Chief Justice Maeshall, in McCulloch v. State, 4 Wheat. 423, 428: “ When the law is not prohibited, and is really calculated to effect any of the objects intrusted to the government, to undertake here to inquire into the degree of its necessity would be to pass the line which circumscribes the judicial department, and to tread on legislative ground.” Page 423. And again, speaking of the authority of the legislature to act upon subjects intrusted to its discretion, he says: “The only security against the abuse of this power is found in the structure of the government itself. In imposing a tax, the legislature acts upon its constituents. This is in general a sufficient security against erroneous and oppressive taxation.” Page 428. It is true the learned justice in that case was speaking of the power of taxation, but it is evident that the same general rule must be applied to legislation upon any other subject, -when the power to so legislate is expressly given or not forbidden by the constitution.
I think the order of the circuit court quashing the writ should be affirmed.
By the Court.— The order and judgment of the circuit court is reversed, and the cause is remanded with direction to render judgment for the relator, awarding a peremptory writ of mandamus as prayed in the petition.