159 N.Y.S. 605 | N.Y. Sur. Ct. | 1916
This is an application by the State Comptroller to resettle an order entered upon a decision rendered on an appeal taken by him from- an order assessing a tax upon the estate of the decedent. The order as entered assessed a tax upon the interests of the legatees in accordance with the provisions of the Tax Law in force at the date of decedent’s death an,d the decision of the Court of Appeals in Matter of Zborowski (213 N. Y. 109). The State Comptroller now asks that the order be resettled so as to include the following clause: “ Ordered and adjudged that of the tax above assessed against the executors and trustees for the benefit of the five per cent (5%) class, the tax upon such remainder or remainders which would be due if the contingencies or conditions had happened at the date of the appraisal of the estate is two thousand four hundred and eighty-two and 5-100 dollars ($2,482.05).” The clause in question expresses no finding ever made by the surrogate and no such calculation as therein contained has ever been entered on by the surrogate. I may add that he does not pro
The order entered herein assessed a transfer tax in accordance with the provisions of section 230, above quoted, and no application has. yet been made for a modification of the order upon the ground that the property has actually vested in the possession of persons taxable at a less rate than that imposed by the order. Section 231 provides that from the report of the appraiser and any other proof relating to the estate, “ the surrogate shall forthwith as of course determine the cash value of all estates and the amount of tax to which the same are liable.” These are the only provisions of the statute which direct or authorize the surrogate to assess a tax, and they are confined to (1) assessing a tax upon the value of property as of the date of decedent’s death, and if the property is transferred in trust, assessing a tax upon such transfer at the highest rate which upon the happening of any of the contingencies upon which the trust estate is limited would be possible; (2) modifying such order fixing tax when the contingencies or conditions upon which the trust estate is limited have happened. There is no provision in the statute which authorizes the surrogate to determine what the tax upon the interest of legatees- may be if certain events upon the happening of which contingent estates are limited, or upon which defeasible estates may be divested, shall occur at a particular time. Such a determination, if made, would- be speculative, not judicial. If the convenience of the State Comptroller, or the convenience of executors, requires that a calculation be made of the tax which would be assessable if the contingencies subject to which the property is transferred happened at the date of the appraisal, such calculation may be made by the State Comptroller or the executor, as it does not involve a judicial determination of any question, but
As before stated, this whole question was decided by me in Matter of Valentine (supra), and if the State Comptroller was dissatisfied with that decision he should, I think, have appealed to the Appellate Division and then obtained a review of my decision by that tribunal. This would have been a more orderly and respectful proceeding than bringing the same question up again before me.
This application, if regularly sub judice on a motion to resettle án order, which I deny, involves the proposition of law, that a judicial officer cannot be compelled to perform acts extrajudicial or ministerial in character. The proposition is important, not only to this court, with its vast judicial duties' and responsibilities in this county, but also to the public at large. The importance of keeping separate the judicial, executive and legislative duties of officers of government has been recognized ever since the foundation of the present form of government.
Let me explain in limine that in my judgment it is the duty of every official under our system of government, which is a government of law and exists only by and through the law, to see to.it not only that he himself does not transcend the powers and duties committed to him in trust, but also that these powers are not infringed by any one. Otherwise all manner of irregularities would flourish in this country under color of office to the detriment of the public service. It is for this reason primarily, and in no disputatious or contentious spirit, that I feel it incumbent on me to resist the present application. In so resisting I have taken the only course which in my humble judgment is consistent-with both the obligations of office and orderly government. The application on the part of the comptroller to compel the surrogate to insert in an order a hypothetical calculation for the benefit of the comptroller must be
The surrogate is a judge of a court of record and his office is now protected by the Constitution. Article 6, section 15, State Constitution, recognizes the existence of the court and perpetuates the surrogates. The Surrogates’ Court is a court of record (Judiciary Law, Art. 2, § 2), and the surrogate is classed among the judges of the State. (Gen. Const. Law, § 26.) Under the present Constitution the Legislature can no longer enact any law abolishing the surrogates’ office. My present contention is that independently of that limitation the Legislature is also powerless to impose any new ministerial duties on the surrogate, because he is a judicial officer of this State, and so classified both expressly as shown above and in- ' ferentially by the legislation defining his vast jurisdiction as a judge and providing for its execution. In Garlock v. Vandervort (128 N. Y. 374, 378), for example, the court expressly stated that the surrogate was a judicial officer. It would be strange were it otherwise, as under the existing law many of the judicial duties, formerly exercised by the chancellor of this State and the justices of the Supreme Court of the State, are now transferred to surrogates. The surrogates of this State, indeed, have a far more extended jurisdiction than the judges of the Probate Division of the High Court in England' and the Surrogates’ Courts are recognized as of the first importance. To hold that the surrogate’s is not a purely judicial office would be illogical and antithetic. There is nothing contained in Matter of McPherson (104 N. Y. 306} which derogates from the accuracy of the affirmation that the surrogate is' a judge. In fact the whole assumption of the opinion in that case is that the surrogate’s functions, contemplated by the Transfer Tax
A judge cannot be compelled to dio a ministerial act. The principle to which I refer, as plainly violated by the present application, is well recognized. Judge Cooley states it, and of course with his usual accuracy, when he says: “ Upon judges, as such, no functions can be imposed except those of a judicial nature.” There are many adjudications to the same effect, only some of which need be cited. (Note to Hayburn’s Case, 2 Dall. 409; Haine v. Levee Commissioners, 19 Wall. 661. The ¡New York cases are to the same effect.) In People ex rel. McDonald v. Keeler (99 N. Y. 463, 480) the Court of Appeals said, that although the Constitution of Eew York does not contain a declaration similar to that of the Constitution of the United States in- regard to separation of powers, the principle was recognized in this State. In Matter of Davies (168 N. Y. 89, 101) the court said: “ Free government consists of three departments, each with distinct and independent powers, designed to operate as a check upon those of the other two coordinate branches. The legislative department makes the laws, while the executive executes and the. judiciary construes and applies them. Each department is confined to its own fuñetions and can neither encroach upon nor be made subordinate to those of another without violating the fundamental principle of a republican form of government.” A recent litigation in this State, in which the doctrine that courts cannot be delegated to perform ministerial functions was recognized, is that of Matter of Metz v. Maddox. That case is reported in 121 App. Div. 147, revd., 189 N. Y. 460. The dissenting judges in the Appelate Division, Second Department, were of the opinion that chapter 538 of the Laws of 1907, providing for a judicial recount and recanvass of the votes cast in the mayoralty election
That the duty sought to be imposed on the surrogate by the insertion of the clause in the order submitted is not a judicial act is apparent. (United States v. Ferreira, 13 How. 40; Rees v. City of Watertown, 19 Wall. 107.) No adjudication which is not absolutely essential to the disposition of an issue in a special proceeding or a litigation is a judicial act or duty. I had occasion to consider that point generally in Matter of Kathan (141 N. Y. Supp. 720), but there was no need to refer to the authorities sustaining it in Matter of Kathan, although they are many. In Washbon v. Cope (144 N. Y. 295), the court said: “As a general rule, the surrogate has no jurisdiction to construe the provisions of a will excepting so far as it may be necessary for him to do so in order that he may properly perform some other duty which has been imposed upon him by law. There is no general inherent power vested in him or in his court to construe devises or bequests as a distinct and independent branch of his or its jurisdiction. Even a court of equity vested with general jurisdiction over equitable subjects,
It is now obvious that what the comptroller seeks to accomplish is to compel the surrogate, a judicial officer, to perform a purely ministerial act based wholly on a future contingency. This cannot be done; certainly not by a motion to resettle an order. If there is any remedy for the surrogate’s refusal it must be by way of mandamus. But there is, I think, no statute which compels the surrogate to enter on the calculation requested, .and consequently no obligation to perform it.
I next come to a point much emphasized in the brief for the
But passing from this, that a judicial officer should be required to enter judgments based on hypotheses and'contingencies is, in my opinion, opposed to well settled principles of our law, and to the whole theory on which our judicial establishment rests. Certainly if the surrogates are to be enrolled among the appraisers and tax gatherers of the State, then it is inconsistent that they should sit judicially on many points of law concerning the incidence of taxation which are now submitted to them in their capacity as judges. For the reasons thus indicated and only indicated, I am uniable to assign great weight to the argument based on the alleged contemporary compliance by some of the learned surrogates of this State.
The application of the comptroller must not only be denied on the merits, but also on the further ground that he has mistaken his remedy. The recognized mode to test the validity of my non-compliance with the comptroller’s wishes is not by a motion to amend my order by inserting therein something which I refuse to do, but by an alternative mandamus, directing me to perform the alleged unperformed public duty or show good cause to the contrary. In this way only can the issue in question be tried and determined. But for all the reasons stated the application to resettle order should be denied, and it is denied.
Application denied.