
    The People ex rel. George W. Ostrander, Adm’r, Resp’ts, v. Alfred C. Chapin, as Comptroller, etc., App’lt.
    
      (Court of Appeals,
    
    
      Filed April 19, 1887.)
    
    1. Taxation—Jurisdiction of comptroller to cancel sale — Mandamus.
    The comptroller can be required by mandamus to hear and determine an application made to him by a purchaser at a state tax sale of real estate to cancel the sale and refund the purchase money, where the purchaser alleges that the tax was invalid, and presents proofs in support of his allegation.
    3. Same—Laws 1855, chap. 437, § 83.
    The power of the comptroller is not limited to cases where the invalidity of the sale appears upon the face of the proceedings, but he has power, under Laws 1855, chapter 437, to cancel the sale where the invalidity has to be established by extrinsic evidence, whether a deed has been executed or not.
    3. Same.
    The comptroller has legal authority to receive and act upon affidavits produced to him and the testimony of witnesses, for the purpose of deciding the question of the validity of tax sales as between the state and the purchaser, and may administer oaths to witnesses, and violation of such oaths is perjury, under Penal Code, section 96.
    Appeal from an order of the supreme court, general term, third department, affirming order of special term, Peckham, J., granting a peremptory writ of mandamus compelling the comptroller to hear and determine an application to set aside a tax sale.
    
      Dennis O’Brien, Att’y-Gen., for app’lt; Arthur L. Andrews, for resp’ts.
   Rapallo, J.

The question presented by this appeal is whether the comptroller can be required by mandamus to hear and determine an application made to him by a purchaser at a state tax sale of real estate to cancel the sale, and refund the purchase-money, where the purchaser alleges that the tax was invalid, and presents proofs in support of his allegations. Chapter 427 of the Laws of 1855, section 83, provides as follows: £l Whenever the comptroller shall discover, prior to the conveyance of any lands sold for taxes, that the sale was for any cause whatever invalid or ineffectual to give title to the lands sold, the lands so improperly sold shall not be conveyed, but the comptroller shall cancel the sale, and forthwith cause the purchase-money and interest thereon to be refunded, out of the state treasury, to the purchaser, his representatives or assigns.” Section 85 provides that, if the discovery that the sale was invalid shall not be made until after the conveyance, it shall be the duty of the comptroller on receiving evidence thereof, to cancel and refund, etc., and to re-charge the county from which the tax was returned with the amount refunded.

The tax sale in this case was made by the comptroller in 1871, for the unpaid taxes of the years 1861 to 1865, inclusive, upon certain lands in the town of Wells, in Hamilton county. The purchaser paid the purchase-money, and received the usual certificates of sale, and afterwards assigned them to the relators. No deed appears to have been given by the comptroller conveying the land sold. The relators claim that they have found that the board of supervisors of the county of Hamilton did not, in any of the years, for the taxes of which the lands were sold, estimate and set down in the assessment-rolls the sums to be paid as a tax upon the lands, as required by 1 Revised Statutes, 395, section 33, and this omission, the relators allege, rendered the sale invalid, and ineffectual to give title to the lands sold. On or about the.8th of December, 1885, they made application, by petition in writing, to - the comptroller for a cancellation of the sales, and the refunding of the purchase-money. Their petition set forth the sale, and the issuing of the certificates, and alleged that the supervisors of the several towns of Hamilton county and town of Wells failed to extend the tax on the several assessment-rolls as a board of supervisors, but delegated to each individual member to do the same, and did not subsequently ratify said extension. The petition was accompanied with the certificates of the sales, and the assignments thereof. In August, 1886, the relators, through their counsel, requested the comptroller to take action on their application, and produced to him, the affidavit of the clerk of the board of supervisors of Hamilton county, who wras in office during the years 1861 to 1865, both inclusive, and also the affidavit of one of the members of said board, substantiating the allegations of their petition, and at the same time offered to produce satisfactory evidence of the defect alleged from witnesses who knew the facts. On the 20th of August, 1886, the comptroller sent to the attorneys for the relators the following communication refusing their request.

“State of New York, Comptroller’s Office, )
Albany, August 20, 1886. )
“In the Matter of the Bequest to Grant Application 223 on the Production of Satisfactory Proof of Irregularities not Patent on the Face of the Becords.
“ Stedman, Thompson & Andrews, Albany, N. Y.—Gentlemen: While I do not question the force of the authorities cited by the applicant in making this special request, and while I have no reason to doubt his ability to produce before me evidence of the kind and force that would be required upon a trial in court, it nevertheless seems to me that his request is practically that I should assume judicial powers and functions not conferred upon me. The so-called common-law evidence which the applicant offers to produce before me would not, after all. be evidence in any technical sense. It would be such superficially, but it would not and could not be invested with the attributes, or expose the witness giving it to the penalties accompanying the giving of true or false testimony under legal oath before a duly-qualified tribunal. The applicants’ request is therefore denied.
“ Respectfully yours,
“ALFRED 0. CHAPIN,
Comptroller

The relators thereupon, on affidavits stating the foregoing facts, made a motion in the supreme court at special term for a writ of mandamus commanding the comptroller to proceed to hear, act upon, and determine the application made by the relators, and to receive such evidence, to be offered by the applicants, as would be competent in a court of justice, or such proof as is authorized by statute. In opposition to the motion, the comptroller presented his own affidavit, setting forth his letter of August 20th, and alleging that, in his belief, the statutes of this state did not clothe him with the power to examine, in a judicial capacity, evidence aliunde the record, for the reasons set forth in said letter. The position taken by the comptroller thus appears to have been that the act of 1855, authorizing him to cancel tax sales, and cause the purchase money to be refunded to the purchaser, or his assigns (Laws 1885, chap. 427, § 83), applied only to cases where the invalidity of the sale appeared upon the face of the proceedings, and that he had no power to cancel a sale where the invalidity did not thus appear, but had to be established by extrinsic evidence. The motion for a mandamus was granted by the court at special term, and the order was affirmed at general term, and the comptroller now appeals to this court.

- We are of opinion that the powers of the comptroller, under the statute of 1855, are not so restricted as he contends. The statute, so far from providing merely that he may cancel the sale on discovering that it is invalid for any cause appearing on the face of the proceedings, enacts that when he discovers that it is, for any cause whatever, invalid, or ineffectual to give title to the lands sold, he shall cancel the sale, and forthwith cause the purchase money, with interest, to be refunded to the purchaser. This statute was evidently intended to vest the comptroller with power to make restitution to purchasers at tax sales of the purchase money paid by them whenever it should be found that the sale was ineffectual, for any reason, to enable them to obtain title to the land which they had bought and paid for. This was just to the purchasers, who were entitled, under section 63 of the same act of 1855, to a title in fee, but who, at the time of the passage of the act of 1855, would have had no legal remedy to recover back their money from the state in case their title failed. It is not certain that they would have any remedy now unless one is afforded by the act of 1855. The remedial feature of that act is also supported by considerations of sound policy, as it was calculated to encourage persons to bid at tax sales, by the assurance that they would either get title to the land they bought, or a return of their money, and were not likely to lose both. It was beneficial to the land-owner, because it tended to make his land bring a better price at the sale, and also to the state, as it tended to enable it to collect its unpaid taxes, by encouraging purchases at tax sales. To restrict the comptroller, in this power of canceling sales, to cases where the invalidity appears upon the face of the proceedings, would not only do violence to the language of the statute, but would frustrate its intent. The intent was to protect the purchaser in case the sale was found to be ineffectual to give him title. This protection would be very inadequate if it left him to take the risk of all the many other defects which might exist in a tax title. "As to those, the purchaser would have had no remedy except by petitioning the legislature, in case his title proved invalid; for in 1855 there was no other mode of obtaining redress from the state, and it is at least questionable whether the subsequent statutes establishing the board of audit and the board of claims would afford a remedy.

Section 85 of the same act shows very clearly that by the words, “ for any cause whatever,” the intention was to provide for cases where the invalidity depended upon extrinsic facts, to be established by evidence, for that section provides for the cancellation of the invalid sale after the comptroller’s deed has been executed, and declares it to be the duty of the comptroller, upon receiving evidence that the sale was invalid, to cancel it, and refund the purchase money. It cannot be conceived that the legislature intended to draw a distinction between the two cases, and to provide that, where a deed had been executed, the comptroller should receive evidence, and that, where no deed had been executed, he was not empowered to receive evidence of the invalidity of the sale. Taking the two sections together, it seems plain that it was intended that in both cases the comptroller should receive evidence, and that it was implied that the purchaser, who was the party interested, should have the right to offer such evidence.

The act of 1873, chapter 120, referred to in the opinion of Peokham, J., at special term, is confirmatory of this view. That act provided for setting aside cancellations whenever they have been obtained by fraud, misrepresentation, or suppression of any material fact, or by a mistake of fact. This statute is entirely inconsistent with the theory that the comptroller was limited in his power of cancellation to defects appearing on the face of the proceedings, and could not consider extrinsic facts.

The comptroller objects that the affidavits produced to him, and the testimony of witnesses offered on the part of the relators, were not evidence in a technical sense, because he was not vested with judicial powers and functions, and such affidavits and testimony would not expose the witnesses to the penalties accompanying the giving of false testimony under legal oath before a duly qualified tribunal. This is one of the grounds upon which he bases his refusal to consider or act upon the proofs offered. We think the comptroller had legal authority to receive and act upon the proofs offered, and that they did constitute legal evidence. He was clearly authorized to decide the question of the validity or invalidity of the tax sales, at least as between the state and the purchaser, and for the purpose of determining whether the purchaser was entitled to have the purchase money paid by him refunded out of the state treasury. This was in the nature of a judicial function conferred upon him by law. It is a general principle that, where a power is given by statute, every thing necessary to make it effectual or requisite to attain its end is implied. 1 Kent, Comm., 464; Stief v. Hart, 1 N. Y., 20, 30. To enable him to decide whether or not the tax sales were invalid for any cause whatever, and ineffectual to give title, it was necessary that he should receive evidence of the facts showing their invalidity. The power to cancel, therefore, implies power to take proof of the defect. Indeed, in section 85 it is in terms made the duty; of the comptroller to receive evidence that the sales were invalid, and to act upon such evidence. That section says that “it shall be the duty of the comptroller, on receiving evidence thereof, to cancel the sale,” etc. If witnesses should be produced before him, he is expressly authorized by law to swear them (1 Rev. Stat. 185 § 1), and all the power required to enable him to conduct the investigation is conferred upon him by section 843 of the Code of Civil Procedure, which provides, among other things, that where an officer, board, or committee, to whom or to which application is made to do an act in an official capacity, requires information or proof to enable him or it to decide upon the propriety of doing the act, he or it may receive an affidavit for that purpose,” and the same section provides that whenever an officer, etc., is authorized to receive an affidavit, he may swear the deponent. The comptroller was thus vested,.at the time the application was made to him by the relators, with legal authority, not only to receive the affidavits tendered, but also to administer oaths to the witnesses who might be produced before him, and section 96 of the Penal Code is broad enough in its provisions to subject a witness or deponent to the pains and penalties of perjury for swearing falsely on such a hearing or inquiry by the comptroller.

The learned attorney general, in support of the comptroller’s appeal, takes the further point that the statute was intended to provide only for cases where the invalidity results from some defect in the proceedings of the comptroller himself in respect to the sale. We can find nothing in the statute to support this theory. The provision is that if, for any cause whatever, the sale should be discovered to have been invalid, or ineffectual to give title, the purchase money shall be returned, and the sale canceled. If the tax itself, which was the foundation of the power to sell, is found to have been void, the sale, however, regularly conducted, is ineffectual to give title to the land sold. The failure of title is the essential ground upon which restitution is to be made. The argument that the only invalidity which the comptroller can consider is a defect in his own proceedings, is conclusively answered by section 84 of the same act, which provides that, if the error originated with the town or county officers, the amount refunded shall be charged to the county and reassessed by the board of supervisors, and paid to the state treasurer.

Some criticism is made upon the language of section 83, viz., that if the comptroller shall discover that the sale was invalid, etc., he shall cancel it, etc. The statute could not have been intended to be confined to cases where the comptroller, by his own unaided researches, and without suggestion from any one else, makes the discovery. We think that the meaning was that where he shall find, or it shall be made apparent to him, that the defect exists, he shall act. When the purchaser satisfies him, by evidence, that he can get no title under the sale, we think that it is his duty to discover it, and to cause the purchase money to be refunded. Section 85 expressly provides that, “ oh receiving evidence ” of the invalidity, he shall act.

We are also of opinion that mandamus is the proper remedy to set the comptroller in motion where he refuses to entertain or act upon an application of this description. It is not claimed that he can be directed by that writ how to decide the question, but only to receive the evidence, and exercise his judgment upon it. Being vested by the statute with power to decide, the purchaser, whose money is in the state treasury, having a legal interest in having his right to a return of it determined, is entitled to apply for a mandamus to compel the exercise of the power. Besides, the statute is in terms mandatory, and declares that, on discovery of the defect, the comptroller shall cancel the sale, and cause the purchase money to be forthwith refunded. The relators presented to the comptroller prima facie evidence which, if true, showed that the taxes and sales were invalid, and that they were entitled to be refunded the purchase money, Bellinger v. Gray, 51 N. Y., 610, 617; People v. Hagadorn, 104 id., —, and they offered to produce further satisfactory evidence of the facts alleged. We think it was the duty of the comptroller to hear and decide the case, and that the mandamus was properly granted.

The order should be affirmed.

All concur.  