
    In the Matter of the Application of Otto Kelsey, Comptroller of the State of New York, Appellant, for a Writ of Mandamus against James C. Church, Surrogate of Kings County, Respondent.
    Second Department,
    April 20, 1906.
    Tax Law — surrogate may be compelled by mandamus to order appraisal of estates subject to transfer tax — petition may be on information and belief.
    Section 330 of chapter 908 of the Laws of 1896, as amended, requiring the surrogate upon his own motion or upon the application of an interested' party, including the Comptroller of the State, to order an appraisal of" estates subject to a transfer tax is mandatory and not discretionary. Compliance- by the surrogate therewith may be compelled by mandamus on the relation of the State Comptroller, as the duty of appraisal is ministerial.
    Such writ may issue on a petition verified by the State Comptroller setting forth fact's showing the jurisdiction of the surrogate, although the allegations are made upon information and belief.
    Appeal by the petitioner, Otto Kelsey, Comptroller of the State of Mew York, from an order of the Supreme Court, made at the ■ Kings County Special Term and entered in the office of the clerk of the-county of Kings on the 16th day of Movember, 1905.
    
      Jabish Holmes, Jr. [Frank Julian Price with him on the brief], for the appellant.
    
      William P. Pickett, for the respondent.
   Miller, J.:

The State Comptroller, appeals from an order of the Special.Term denying an application for a peremptory wri-t_of mandamus requiring the surrogate of Kings county to make an order appointing an appraiser in a transfer tax proceeding attempted to be instituted by-the appellant in said county. The statute pursuant to which the learned surrogate was requested' to act (Laws of 1896, clia-p. 9.08, § 230, as amd. by'Laws of 1904, chap. 75‘8) provides: “The surrogate, either upon his own' motion, or upon the application of any interested party, including the Comptroller of the State of Mew York, shall by order direct the county treasurer in a county in which the office of appraiser is not salaried, and in any other county the person or one of such persons so designated as appraisers to fix the fair market value of property of persons whose estates shall be subject to the payment of any tax imposed by this article.” At the threshold of this inquiry it is important to determine whether this provision is mandatory. It is well settled that where a statute clothes a public officer with power to do an act which concerns the public interests, the execution of the power-may be insisted upon as a duty even though the language of the statute be permissive only. (People ex rel. Otsego County Bank v. Supervisors of Otsego Co., 51 N. Y. 401; People ex rel. Reynolds v. Common Council, 140 id. 300.) The language of the statute under consideration is imperative. The portion of the statute quoted supra was taken from section 11 of chapter 399 of the Laws of 1892, but with a significant omission. As the statute originally was it provided: “The surrogate, upon the application of any interested party, * * * shall, as often as and whenever occasion ma/y require, appoint a competent person as appraiser, * * The Court of Appeals said, in Matter of Westurn (152 N. Y. 93), that this statute left it to the sound discretion of the surrogate to determine when the power should be exercised ; and the present case furnishes a concrete illustration of the reason, founded upon experience, that doubtless moved the Legislature to eliminate the words affording ground for this construction. This statute provides the machinery for the assessment and collection of the tax, and makes the surrogate of each county a part of it. He is required in the first instance to appoint an appraiser (Tax Law, § 230, as amd. supra); upon the report of the appraiser and any other proof relating to the estate which may be before him, he is required forthwith as of course to determine the cash value of the estate and the amount of tax to which it is liable. (See Tax Law, § 232, as amd. by Laws of 1901, chap. 173.) It is plain that xxp to this point he acts as arx assessing officer merely, of course jxidicially the same as evei’y assessor acts. From the initial order imposing the tax an appeal lies in the first instance to the sixrrogate, who thereupon is required to review his own acts as such assessing officer. (See Tax Law, § 232, as amd. supra.) Thp initial step in the proceeding is the appointment of an appraiser, and the surrogate is required to make such appointment, either on his own motion, or iipon the. application of any interested party, including the State. Comptroller; he must act upon his own motion whe'n he learns of facts affording reason to believe that "such proceeding ought to-be instituted, upon the. application of an interested party when a proper application is made; The reason for making the surrogate the assessing officer and -requiring him to act upon his own motion; is plain; no. other officer in the State has. the same opportunity to learn when a transfer tax ought to be imposed,, as all resident estates and non-resident estates in which it is. necessary to apply for "ancillary-letters become of record in his office; and although it was-said in Matter of O'Donohue (44 App. Div. 186) that “ the jurisdiction of the-.surrogate to appoint an appraiser is one that may be exercised with or without a petition and of his own -motion, whenever in.the sound exercise of his discretion he deems it proper to do so ” (the “ exercise of his discretion ” evidently referring to action upon his- own motion), I think the duty to act in either case is imperative. Of'course, before acting on his own motion, he must determine whether the facts within his official knowledge are- such as to require action, and before acting upon the application'of an interested party he must determine whether a.proper application has been made, but his duty to act is just as imperative in either case as is the duty of. local assessors, to obey the command of the statute respecting the performance, of their duty, and there is no more reason" for saying that he has: á discretion in the- matter than there is for saying that any officer charged with the performance of a public duty has a discretion whether he will discharge such duty.

Was a proper application, made? The "applicatibn was- made upon a verified petition which set forth facts upon which the jurisdiction of the surrogate to act depended. To be sure the allegations are upon information and belief, but this is good pleading and "is expressly authorized by the Code of Civil Procedure, whether -in an-action or in a,proceeding in Surrogate’s Court, and surely moré cannot be required" respecting the petition- for the institution of this-proceeding than is required to institute proceedings in. the Surrogate’s. Court.. The petition .is -made by the officer charged by law with the duty of collecting this tax; he cannot know of his own knowledge as to the taxability of these estates, and. the very purpose of these proceedings, as the law plainly contemplates, is to ascertain the fact. From the affidavit of the learned surrogate submitted upon this motion, it appears that he is of opinion that oppression to estates may result, unless the State Comptroller is required to establish, in advance, the facts to ascertain which the proceeding is required to be instituted. The fact that some other officer may not understand his duty furnishes no reason for disregarding the statute. But the proceeding need involve no expense to the estate. , The appraiser merely ascertains the facts and reports them with the evidence to the surrogate, and the statute guards against the unlawful imposition of a tax, and gives the estate full and complete protection. Those who desire to evade paying what the law imposes in return for the protection of their persons and property afforded by the State may call that oppression. The danger is not the one feared by the learned surrogate, but that estates legally taxable will escape taxation; respecting resident estates, that, owing to delay, the estate may be wasted or distributed without application to the surrogate, or that it may become difficult to ascertain the facts and enforce payment of the tax; respecting non-resident estates, that property subject to tax may be removed from the State without the payment of the tax, except as the transfer of securities of decedents without the payment of the tax may be prevented by another provision of the statute. This danger can only be minimized by extreme vigilance on the part of officers charged with the duty of collecting the tax, and by a faithful observance of duty on the part of officers charged with its assessment. :The law contemplates the institution "of the proceeding upon the application of the State Comptroller; manifestly it is impracticable if not impossible for him to do more than was done in this case, and if the petition presented by him was not sufficient, the institution of the proceeding must be left to the volition of representatives of estates. This will be a kindness only to those who desire to escape taxation, because experience has shown that in counties where the institution of transfer tax proceedings has been delayed by the surrogate, persons ignorant of the provisions of the law have been subjected to penalties, which no one can remit, often larger than the tax. The exact form of petition used in this case was held good on direct attack in Matter of O'Donohue (supra) and there can be no doubt- that a proper application was made to the surrogate requiring him to obey the command of the statute.

Is mandamus the proper remedy ? No appeal lies from an ex parte order, because no effectual judgment or order could be made on the determination of the appeal, except in the nature of mandamus. (Matter of Johnson, 27 Hun, 538 ; People ex rel. Schlehr v. Common Council, 30 id. 636 ; Matter of Nottingham, 88 id. 443 Hayes v. Consolidated Gas Co., 143 N. Y. 641.) The function of mandamus is to compel action and not to review action taken ; it can control the performance of a ministerial duty; it can require, but cannot control, the exercise of j udguient or discretion. These propositions are elemental. The learned court at Special Term was of the opinion that mandamus would not lie because the surrogate ha'd a judicial discretion in the matter of granting these orders. . This proposition, if I am correct, is untenable., He has no discretion, but of' 'course is required to exercise judgment in determining whether a case is presented requiring him to act. " If his refusal to act upon the erroneous determination, that he had not jurisdiction:* cannot, be corrected by mandamus, then I conceive that there- can be few cases in which a judicial officer can be compelled to act,.' because he can usually say that he had to exercise judgment in determining whether a case was presented requiring, action, and that he had exercised such judgment in determining that no action'’ was required. In this case the refusal of the surrogate to act prer sents nothing for review. The petitioner seeks to compel Mm to act, not to control his action. An officer cannot refuse to discharge his duty and then defeat mandamus by saying that he determined that no case was presented calling upon him for the discharge of such duty. What the petitioner seeks is a determination of this matter upon the merits. Of course if, after the institution .of the proper proceedings, the surrogate in determining the matter upon the merits should conclude that he had not jurisdiction to assess .a tax, that conclusion could be reviewed only in the manner pointed out by- the statute, to wit, by an appeal to the surrogate and from his order on such appeal to the Appellate Division.. Ho case has been called to our attention in which mandamus has .been refused where the officer has refused to act upon the erroneous assertion of want of jurisdiction ; on the contrary, there is plenty of authority to the effect that the erroneous determination of want of jurisdiction preliminary to acting at all does not defeat a mandamus to compel a judicial officer to act. That mandamus in such case was the proper remedy was plainly stated by the Court of Appeals in Hayes v. Consolidated Gas Co. (supra), and by Mr. Justice Martin, speaking for the General Term of the fourth department in Matter of Nottingham (supra). To be sure these expressions were obiter, but there is controlling authority in this State on the proposition. (See People ex rel. Allen v. Murray, 2 Misc. Rep. 153; 23 Civ. Proc. Rep. 71; affd., 2 Misc. Rep. 157; 21 N. Y. Supp. 797; 138 N. Y. 635.) The distinction between the erroneous determination of a question of jurisdiction preliminary to hearing the case at all, and such erroneous determination after a hearing upon the merits, is made plain by a comparison of the ease last cited and the case of Matter of McBride (72 Hun, 394). In the latter case the sole remedy is by appeal; in the former, mandamus will lie to compel action. (See, also, The Queen v. Brown, 7 El. & Bl. 757; The Queen v. Mayor of Monmouth, L. R. 5 Q. B. Div. 256.)

As there are no facts in dispute a peremptory writ should issue. The order appealed from should be reversed, without costs, and the application for a peremptory writ of mandamus granted, without costs.

Hirschberg, P. J., Woodward, Jenks and Hooker, JJ., concurred.

Order reversed, without costs, and application for peremptory writ of mandamus granted, without costs.. 
      
      Tax Law, art, 10, as amd.— [Rep.
     