67 N.Y.S. 680 | N.Y. Sup. Ct. | 1900
All 'of the defendants are sued “ as Oommissioners of the Land Office”, and the defendant Boherts is also sued as Comptroller. As the defendants demur jointly the demurrer must be overruled if the complaint be good either against the defendants as such Commissioners or only against the one of them who is also sued as Comptroller.
1. The objection that the court has no jurisdiction of the defendants or of the subject of the action is put upon the proposition (in brief) that the suit is in effect one against the state, and that sovereignty cannot be sued in its own courts without its consent. But the suit is not -against the state. Officials or agents of government are not exempt from being sued by individuals in respect of their official acts, unless such acts be purely political, or be performed in the exercise of a lawful discretion vested in them (Marbury v. Madison, 1 Cranch, 137; Osborn v. Bank of United States, 9 Wheat. 738; United States v. Lee, 106 U. S. 196; Rolston v. Missouri Fund Com’rs, 120 U. S. 390). Blackstone makes the distinction between sovereignty and its officials and agents clear in the respect under consideration when, having stated that no action will lie against the former, he says: “ But injuries to the rights of property can scarcely be committed by the crown without the intervention of its officers; for whom the law in matters of right entertains no respect or delicacy, but furnishes various methods of detecting the errors or misconduct of those agents, by whom the king has been deceived, and induced to do- a temporary injustice ” (3 Com. 255).
2. The objection that the complaint does not state facts sufficient is not good as against the Comptroller. His acts in selling the plaintiffs land and conveying it to the state were illegal, and have placed a cloud upon the plaintiffs title which he seeks to remove. That the plaintiff cannot sue the state for a cancellation of the void conveyance to it is no reason why he should not maintain such a suit against the official who created the cloud, or against his successor, for the office extends to and embraces the matter. As was said in Osborn v. Bank of United States (9 Wheat. p. 842) to the objection that since the state could not be
This suit rests on general principles of equity, and I therefore find no difficulty presented by the decisions that though the Comptroller is empowered by statute to cancel invalid tax sales, he cannot be compelled to do so at the request of the landowner, but may do so only on the request of the purchaser at the tax sale. In Clark v. Davenport, as Comptroller (95 N. Y. 477), a suit by the landowner to set aside the Comptroller’s certificate of sale to the individual who purchased, the court gave as a reason for dismissing the suit that the plaintiff had not made a demand on the Comptroller to set aside the sale, asserting that he had a right to do so under the statute both before and after the execution of a conveyance by the Comptroller. But later in People ex rel. Wright v. Chapin (104 N. Y. 369), where a landowner applied to the Comptroller for such cancellation, it was held that he could not do so, and that the Comptroller could not entertain his application; that the statute was for the benefit of the purchaser only, though it did not say so, but in general words only made it the duty of the Comptroller to cancel the sale if he “ discovered ” it to be invalid either before or after the conveyance. Later in People v. Turner (117 N. Y. 227), the court in order to show that the landowner had not been deprived of his property by the tax sale without that opportunity to be heard which the constitution requires, pointed out that he could have applied to the Comptroller under the said statute to cancel the sale and in that way secured a hearing as to the validity of the tax and all subsequent proceedings; and in the later case of the same title (145 N. Y. 451) it was said that at all events when the state was the purchaser “ it was open to the owner to come before the Comptroller and make proof of the invalidity of the sale.” But again later in People ex rel. Millard v. Roberts (151 N. Y. 542), where the state was the purchaser, it was held that the landowner could not apply to or require the Comptroller to cancel the sale in any case.
In the case of People ex rel. Millard v. Roberts (supra) the learned judge there writing says: “ H the sale is invalid, his (the plaintiff’s) title is not affected, and he may keep and defend his possession, or, if put out of possession, he may regain it by action of ejectment.” As in that case the state was the purchaser, this observation may seem to mean that the plaintiff there could bring an action of ejectment against the state, and if that was meant, then an action like this present could also have been brought against the state; and if that be so; then it may be that no cause of action is stated against the present defendants, but against the state. But was not this observation also obiter? Or, if not, does it not mean that an action of ejectment could be brought against the state official or agent in possession, as was the case in United States v. Lee (supra) ? If so, it is an authority for the present suit.
3. It seems to me that the Commissioners of the land office are proper parties defendant. They are by statute given “ the general care and superintendence of all state lands, the superintendence whereof is not vested in some other officer or board.” This seems to embrace all state lands not placed by statute under the care and superintendence of the board of fisheries, game and forest (Fisheries G. and F. Law, sec. 271). Their official interest
The demurrer is overruled.
