
    The People ex rel. Charels P. Noyes, Relator, v. William Sohmer, as Comptroller of the State of New York, Respondent. Matter of the Application of Evans R. Dick and Others for a Peremptory Writ of Mandamus v. William Sohmer, as Comptroller of the State of New York.
    (Supreme Court,
    Albany Special Term, July, 1913.)
    Mandamus — peremptory writ of — Laws igo6, chap. 414, amending Laws 1905, chap. 214, imposing a stamp tax — Constitutional law.
    Persons who purchased stamps and affixed them to stock certificates in good faith between the time of the enactment of chapter 414 of the Laws of 1906, amending chapter 214 of the Laws of 1905 imposing a stamp tax, and the decision of the Court of Appeals declaring the taxing clause of said statute unconstitutional, are entitled to have the amount paid for such stamps refunded, and a peremptory writ of mandamus will be issued requiring the comptroller of the state either to admit or reject petitioners’ claim for such refund.
    Application for peremptory writs of mandamus.
    Au application is made in each of the above entitled proceedings for a peremptory writ of mandamus requiring the comptroller of the state to pass upon the claim of each of the relators covering an alleged excess payment of tax under the stock transfer act.
    
      Goldman, Heidenlieimer & Unger, for relator Noyes.
    David H. Miller, for petitioners Evans R. Dick and others.
    Thomas Carmody, attorney-general (Edward J. Mone, deputy attorney-general, of counsel), for William Sohmer, as comptroller of state of New York.
   Rudd, J.

Chapter 241 of the Laws of 1905 imposed a tax of “ two cents on each one hundred dollars of face value or fraction thereof ” of stock sold.

Chapter 414 of the Laws of 1906 amended that statute by basing the tax on ‘ ‘ each share of one hundred dollars of face value or fraction thereof.” The amendment taking effect May 11, 1906.

The Court of Appeals in People ex rel. Farrington v. Mensching, 187 N. Y. 8, declared-the taxing clause of the amending statute unconstitutional. The tax provision of the original enactment was left in operation.

Between the time of the passage of the amended law and until the decision of the Court of Appeals the relators purchased certain stamps of the comptroller of the state and canceled the same, affixing the stamps upon the shares of stock irrespective of the face value, and now claim a refund from the treasury of the state for the amount of excess taxes paid, which it has been determined by the Court of Appeals were paid to and received by the treasurer of the state under a law which was unconstitutional in its requirement.

The claims here involved were presented to the comptroller of the state under chapter 186 of the Laws of 1910,. which went into effect April 29, 1910. It was entitled “An Act to amend the Tax Law in relation to refunds of taxes on transfers of stock ” and added a new section to the Tax Law, known as section 280. This specifically refers to the refund of taxes erroneously paid.

This provides in substance that if any stamp has been erroneously affixed to any certificate of stock the comptroller may upon presentation of the claim for the amount of such stamp, and upon the production of satisfactory evidence that such stamp was erroneously affixed, so as to cause loss to the person making the claim, pay such amount or such part thereof as he may allow such claimant out of any moneys appropriated for that purpose..

The section provides in detail as to the form in which the claim shall be presented, when they shall be presented, and that if the comptroller rejects a claim or any part thereof the claimant may file a claim for the recovery of such sum as the comptroller shall have refused to allow with the Court of Claims, now the Board of Claims, which shall constitute a private claim against the state and shall be subject to all the provisions of law governing such claims, except that such claims so presented shall be filed with the Court of Claims within ninety days from the date on which such claim shall be rejected by the comptroller.

The application here made is not for an adjudication upon the alleged claims of the relators, and does not call upon the court in any way to pass upon the validity of such claims. It is simply an application asking the court to require the comptroller to do that which the law calls upon him to do, namely: Either approve of the claims or reject the claims.

There seems to be little dispute in the facts. When this court determines the simple question whether or not the comptroller as a matter of fact rejected the claims the questions here involved are answered.

It is not for this court to determine whether the claims should be rejected because no appropriation has been made by the legislature. It is not for the court to determine whether the parties here applying are those who have sustained the loss alleged to have been made by the improper and illegal requirement on the part of the state of the amounts which have been paid in excess of what should have been paid.

It is, as above stated, simply, did the comptroller by the return of the claims accompanied by a letter of the attorney-general reject the claims? If he did a basis has been laid for the presentation by the claimants of their claims to the Board of Claims.

If they have not been rejected the claimants here can find no jurisdiction within which they can seek to recover their moneys, or the moneys which have been received by the treasurer of the state in violation of the organic law of the state.

The expressions by the comptroller in the disposition of a claim presented should not be uncertain or indefinite. They should not be such as would require much hesitation on the part of a court to know whether the comptroller had as a matter of fact rejected the claim. It is a simple requirement; no reason need necessarily be assigned for the rejection. It should be absolute in its nature, and it should not result in misleading or in doubt. It should not be of such a character or in such form as would raise a question of doubt as to whether jurisdiction had been created in the tribunal provided by law to pass upon the real merits of the claim.

The comptroller returned the claim in 1910 accompanied by a circular letter and by a printed copy of the opinion of the attorney-general. This letter and the opinion are a part of the relators’ moving papers.

The comptroller stated that he was returning the claim “ because of the conclusion stated ” in the opinion of the attorney-general.

The conclusion was: “In my judgment, these claims do not meet the requirements of the statute; and I therefore advise you that they are not sufficient for your action either t<3 allow or disallow the claim.”

The comptroller evidently acted upon the advice of the attorney-general; that advice was that the claims were not sufficient to justify the comptroller acting upon them.

If the comptroller did not act upon them he certainly did not reject them. In fact the comptroller acts under the suggestion of the attorney-general to the effect that he does not either allow or disallow, and if he does' not disallow he certainly does not reject.

In Flower v. State of New York, 143 App. Div. 871, the court has held that persons who purchased and affixed such stamps to stock certificates in good faith before the statute was declared to be unconstitutional were entitled to have the amount paid refunded.

And also that the Court of Claims would have no jurisdiction until the claim had been passed upon by the comptroller of the state.

That certainly does not mean simply looked at by the comptroller; it means some kind of a determination by the comptroller as to the validity of the claim.

It has been held in the Flower case: “ it is clearly the duty of the Comptroller to pass upon the plaintiff’s • claim, ascertain and determine the amount thereof and certify to the same in proper manner so that it may be paid from any funds properly applicable to that purpose.”

The fact that there are a large number of similar claims pending and that the amount involved is large is not at all controlling. If that means that the state treasurer has received a large amount of money by the collection of excess taxes under a law which has been declared unconstitutional, it certainly seems as if it would be the duty of the officials of the state to promptly co-operate to the end that such amount if illegally received- might be refunded.

But, as above stated, it is not a question here of the legality of the claim but simply for tlie construction by the court of the acts of the comptroller in the returning of the claims here involved.

This court holds that the comptroller has not rejected the claims.

The court is asked to direct the comptroller to act in accordance with' the duties which devolve upon him by law, namely to allow or disallow, either to admit or reject the claims, not indicating here in any way any opinion either as to the character of the claims or as to the validity of the claims or the owners thereof. Simply to do that which the law requires to be done.

Peremptory writs of mandamus covered by the petitions may issue.

Motions granted.  