Arace v. Town of Irvington

Decision Date20 June 1962
Docket NumberNo. L--20132,L--20132
Citation75 N.J.Super. 258,183 A.2d 104
PartiesLeo ARACE, Plaintiff, v. The TOWN OF IRVINGTON, Edward J. McKenna, John R. Martin, Vito A. Miele, J. Elmer Hausmann and William E. Lovell, Defendants.
CourtNew Jersey Superior Court

Thomas E. Durkin, Jr., Newark, attorney for plaintiff.

Matthew Krafte, Irvington, attorney for defendants.

GLICKENHAUS, J.C.C. (temporarily assigned).

This is an action in lieu of a prerogative writ, brought by plaintiff Leo Arace, tax assessor of the Town of Irvington, against the town and its governing body, which consists of five commissioners, whereby the plaintiff seeks in the first count to enjoin a certain investigation of assessment practices in said town, authorized and financed by virtue of certain resolutions adopted by the Irvington commissioners on June 19, 1961. The second count seeks to establish that the adoption of the resolution for the emergency appropriation of funds to finance the investigation was an Ultra vires act and therefore null and void. In the third count plaintiff seeks to enjoin the investigating committee from questioning him as to his method or methods of assessing property.

The case arose out of the following facts: There was a general revaluation of assessments in the Town of Irvington for the year 1960, and assessments were presumably equalized throughout the town. In 1961 a great many taxpayers complained that after their tax assessments were increased in 1960, to effect the equalization of assessments they were again increased in 1961. In view of the vast number of complaints from taxpayers, the governing body on June 19, 1961 adopted the following resolution:

'WHEREAS, an emergency has arisen with respect to the unusual and excessive tax assessments widespread among the realty properties within this community, and

WHEREAS, this board has been inundated by numerous complaints of citizens respecting raises of tax assessments, and

WHEREAS, a cursory examination and investigation reveals extensive changes of assessments directly following a completed revaluation program, and

WHEREAS, such alteration of current revaluation figures should be the subject of an investigation and report,



1. Mayor William E. Lovell is hereby appointed as a committee to conduct an investigation of current assessment practices, and in connection therewith to hire necessary persons and to assist and retain qualified persons or forms (sic) to render opinion, and to report to this board from time to time, the progress of said investigation.

2. That the Director of Revenue and Finance, the Comptroller, the Assessor and such other person or persons having data pertaining to the realty assessments of the Town of Irvington be and are hereby directed to make available such records for investigation as are sufficient for this inquiry.'

On the same date the governing body also adopted an emergency resolution appropriating the sum of $15,000 to cover the cost of said investigation.

On or about July 15, 1961 plaintiff was served with a 'written notice' that an investigation would be conducted from July 24 through August 2, 1961, at the Irvington town hall. The notice directed him to be present and to have available for production and inspection the books of his office. On or about July 20, 1961 the plaintiff was served with a subpoena issued by defendant, Mayor William E. Lovell, commanding him to appear and to give testimony at said investigation.

Sometime prior to July 24, 1961 the plaintiff served the defendants with a notice of motion returnable July 24, 1961, by which he would seek an order restraining them from conducting said investigation.

On August 3, 1961 the court entered a preliminary injunction restraining the defendants from interrogating the plaintiff as to the amounts of the individual assessments made by him and as to the methods used by him in making the assessments, but permitting the plaintiff to be interrogated upon other matters. In arriving at this determination the court was of the opinion that the sole method provided by law for a review of the calculations made by the assessor in the valuation of real and personal property was by way of appeal to the county board of taxation. This order is still in effect.

The plaintiff asserts that he is the tax assessor of the Town of Irvington, having been appointed on June 30, 1960 by the Director of the Department of Revenue and Finance for a term of four years, by virtue of N.J.S.A. 40:46--6.2. He contends that the subject matter of the investigation is improper because it attempts to investigate current assessment practices, that is, the practice employed by him in valuing property. He further contends that he is bound to assess all property at true valuation; that if the alleged valuations are too high, landowners have the right to appeal to the county tax board, and conversely, if the alleged valuations are too low, the town has the right to appeal to the county tax board. It is the plaintiff's position that even though he is appointed by the town, he performs the functions of his office independently of the town and owners of assessed property; that if the defendants assert that he is acting improperly or is the subject of any disciplinary action, they lack jurisdiction because all such procedures lie solely with the Director of the Division of Taxation and the director of his department.

The defendants deny that the plaintiff was the duly appointed tax assessor of the Town of Irvington. This denial is based upon the alleged failure of the plaintiff to take, subscribe to, and file such oath of office as is provided for in R.S. 40:46--19, N.J.S.A., within 30 days after the commencement of his term of office, thus vacating his office. The above statute was in effect at the time of plaintiff's appointment, but has since been repealed by L.1961, c. 5, effective January 1, 1962. It is the defendants' contention that the municipality has inherent power under the Walsh Act to conduct this investigation, and that the emergency appropriation was properly made under N.J.S.A. 40:2--31.

The controversy presents for determination the following questions:

1. Does the governing body have the right to appoint a committee to investigate current assessment practices in the Town of Irvington?

2. Does the governing body have the right to adopt an emergency resolution appropriating a fund to pay the cost of such an investigation?

3. Does the committee appointed by the governing body have the right to examine the tax assessor as to his methods in valuating property and making assessments?

4. Did the plaintiff fail to file his oath of office as required by statute within the time prescribed by law and thereby forfeit his right to act as tax assessor of the Town of Irvington?

The matter duly came on for trial before this court, and the testimony of the witnesses produced by the parties was taken.

The first question presented for determination by the court, as stated above, is whether the governing body has the power to appoint a committee to investigate the current assessment practices in the Town of Irvington. N.J.S.A. 54:3--21 provides that:

'* * * a taxing district which may feel discriminated against by the assessed valuation of property in the taxing district, or by the assessed valuation of property in another taxing district in the county, may * * * appeal to the county board of taxation by filing with it a petition of appeal. * * *'

N.J.S.A. 54:3--22 provides that:

'The board * * * shall summarily hear and determine the appeal, and revise and correct the assessment in accordance with the value prescribed by law. * * *'

By the above statutes the Legislature recognized that assessments in the appealing taxing district might be too high as compared with assessments in other taxing districts, or that the assessments in other taxing districts might be too low as compared with assessments in the appealing district, in either of which cases the appealing district might feel discriminated against. As a condition precedent to the right of appeal the municipality must designate in the petition of appeal the particular assessments which it feels are discriminatory. N.J.S.A. 54:3--21.

One proper method by which a municipality could determine whether it has been subject to discrimination because of certain tax assessments would be to conduct an investigation of the current tax assessments. Such discrimination might be revealed through an investigation of alleged excessive increases and decreases of real property assessments within the municipality. Furthermore, the defendant municipality did in 1960 expend, pursuant to N.J.S.A. 40:50--9, approximately $100,000 for a complete revaluation of real property within the municipality for the use of the local assessor. An investigation might tend to disclose that the revaluation was improper, or that it was properly made but changing conditions and circumstances rendered it, in many instances, useless as a guide for the assessor, or that conditions and circumstances have not changed that thus an appeal from the valuation set by the assessor was indicated in the public interest. It should also be noted that in addition to the right of appeal, the municipality may desire to conduct an investigation to gather evidence to justify lodging a complaint with the Director of the Division of Taxation, who, under N.J.S.A. 54:1--26, has the authority to order a reassessment of all or part of the property in the taxing district. It is my opinion, based on the aforementioned statutes, that the governing body has the requisite interest necessary to conduct this investigation.

In view of the above holding that the municipality has the power to investigate, there arises a presumption that the investigation is being conducted in good faith even though the exact use of...

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9 cases
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    ...9-165; L.1981, c.393. The courts have also been protective of the integrity of the role of the tax assessor. In Arace v. Irvington, 75 N.J.Super. 258, 183 A.2d 104 (Law Div.1962), an assessor was faced with an effort by the municipality to investigate his practices, in particular his method......
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