City of Hackensack v. Rubinstein

• Decision Date: 05 March 1962
• Docket Number: No. A--57,A--57
• Citation: 37 N.J. 39,178 A.2d 625
• Parties: CITY OF HACKENSACK, a municipal corporation, Appellant, v. Ruth RUBINSTEIN et al., Respondents.
• Court: New Jersey Supreme Court

Page 39

37 N.J. 39

178 A.2d 625

CITY OF HACKENSACK, a municipal corporation, Appellant, v. Ruth RUBINSTEIN et al., Respondents.

No. A--57.

Supreme Court of New Jersey.

Argued Dec. 5, 1961.

Decided March 5, 1962.

Theodore W. Trautwein, Hackensack, for appellant.

Bruce F. Banta, Hackensack, for all respondents.

David A. Gelber, Hackensack, for respondents, P. & J. Realty Co., and others.

Knowlton & Lennan, Tenafly, for respondents, Moore and Bollerman Realty Co.

Winne & Banta, Hackensack, for respondents, Hackensack Gardens, Inc.

The opinion of the court was delivered by

SCHETTINO, J.

In 1960 appellant, City of Hackensack, completed an extensive reassessment of all realty located within the city. Thereafter, more than 300 taxpayers, including the respondents, appealed to the Bergen County Board of Taxation seeking a reduction of their assessments. From determinations reducing the assessments, Hackensack appealed to the Division of Tax Appeals, Department of the Treasury (hereinafter the 'Division') and there the appeals contesting reductions of respondents' assessments were dismissed for failure to serve copies thereof in time. Hackensack then appealed to the Appellate Division which ordered consolidation on the ground that common questions of law applied to all. Before argument there, we certified the matter on our own motion. R.R. 1:10--1(a). Since the taking of the appeal, many of the cases have been settled leaving only those represented by the above-named respondents' attorneys.

At the time the appeals were before the Bergen County Board of Taxation, Hackensack's then assessor refused to appear or otherwise co-operate in defending the assessments there under review. Accordingly, he was relieved of his duties and the assistant assessor was temporarily appointed to fill the position. On the basis of these events the city requested additional time to prepare its defense, but the request was denied and judgments were entered. Copies of the judgments reducing the assessments upon respondents' properties were received by Hackensack by November 15, 1960 or shortly thereafter. On December 15, 1960 Hackensack filed petitions of appeal with the Division after mailing copies thereof to the taxpayers involved. Envelopes containing the copies were properly addressed and were received by respondent taxpayers.

The petitions of appeal contained affidavits by a new assessor, stating that personal service of a copy of the petition had been made upon each taxpayer on December 15. However, Hackensack admitted at the hearing that all of the copies directed to taxpayers were actually served by mailing rather than by means of personal service. It thereupon moved for leave to amend the affidavit to conform to the facts.

Hackensack explained that the incorrect statements in the affidavits constituted error by a layman, the new assessor, that the error was at least partially attributable to the confusion surrounding the days immediately preceding December 15 and that a number of circumstances contributed to that confusion. Hackensack stated that when its present assessor took office on Cotober 25, he was faced with the responsibility of familiarizing himself with and making decisions concerning the over 300 appeals then pending. Furthermore, preparations for the appeals comprising the instant matters were impeded by a snowstorm of unusual proportions which occurred on or about the 11th and 12th of December. In order to cope with the resulting congestion, Hackensack ordered the employees in the assessor's department to help clear snow, both on the 12th and 13th of December. Hackensack brings our attention to an added distraction--the assessor's wife gave birth to a child on December 13.

Additionally, Hackensack points out that there was no contention that respondents did not in fact receive notice. On the contrary, it continues, the majority of the respondents received notice of the petition within one to three days of the mailing and although in a few cases notice was received as late as December 21, 1960, no taxpayer argues that he has been prejudiced by that fact.

Pursuant to leave granted by the Division, the assessor subsequently filed an amended affidavit in which he recited, Inter alia, that on December 15 copies of the petition were deposited in the Post Office, properly stamped and addressed, before the petition was filed with the Division. Nevertheless, The Division granted dismissals to the taxpayers. Its reasoning is based upon an interpretation of N.J.S.A. 54:2--40 and its own rules which expressly require that service of notice be made upon the taxpayer and that proof of such service accompany the petition of appeal. In order to give effect to both mandates, the Division held that service would have to be made prior to filing the appeal. After pointing to the fact that notice of the petition of appeal was not actually received by any of the respondents until after December 15, the last day for filing, the conclusion was drawn that all requisites to the appeal were not present.

Hackensack contends that there is no requirement that notice be given to taxpayers prior to the filing of a petition of appeal with the Division, that while N.J.S.A. 54:2--39 governs the disposition of this appeal, the only statutory mandate relating to service, N.J.S.A. 54:2--40, makes no mention of service on taxpayers; and hence, the Division has no authority to supply such a requirement. According to Hackensack, the Division's Rule 16:8--6.170(b) requiring service upon taxpayers is merely directory. Therefore, assuming the receipt of actual notice affording reasonable opportunity to defend satisfied due process requirements, it would have us hold that substantial compliance with the rule is sufficient. Moreover, it contends, even if Rule 16:8--6.170(b) be regarded as making service upon the taxpayer mandatory, as no time for such service is specified in the rule, it cannot be said that service must be completed before filing of the petition of appeal with the Division.

The taxpayers counter that N.J.S.A. 54:2--35 gives the Division power to establish rules governing appeals before it, that Rules 16:8--6.170 and 16:8--16.100 were adopted under that statutory authority, and that an affidavit of service must be appended to the petition of appeal as required by the rules of the Division. They conclude that the dismissals were proper because service was not made prior to filing. Moreover, they continue, as the affidavit of service was false, it is a nullity; for, absent a proper affidavit, the petition could not meet the requirements for initiating a valid appeal.

Hackensack's appeal to the Division from the determinations of the County Board must be based upon statutory grounds. City of Newark v. Fischer, 3 N.J. 488, 493, 70 A.2d 733 (1950); Hackensack Water Co. v. Division of Tax Appeals, 2 N.J. 157, 164, 65 A.2d 828 (1949). Furthermore, all applicable statutory requirements must be complied with if an appeal is to be sustained. City of Newark v. Fischer, supra, 3 N.J., at p. 493, 70 A.2d 733.

The statutory section urged as controlling by respondents, N.J.S.A. 54:2--35, provides as follows:

'Any action or determination of a county board of taxation may be appealed for review to the Division of Tax Appeals in the State Department of Taxation and Finance, under such rules and regulations as it may from time to time prescribe, and it may review such action and proceedings and give such judgment therein as it may think proper. Nothing herein contained shall apply to any appeal to the Division of Tax Appeals in the State Department of Taxation and Finance provided for by sections 54:2--37 and 54:2--39 of the Revised Statutes.'

On the other hand N.J.S.A. 54:2--39, urged by Hackensack, states:

'Any appellant who is dissatisfied with the judgment of the county board of taxation upon his appeal may appeal from that judgment to the Division of Tax Appeals in the Department of the Treasury by filing a petition of appeal to the division, in manner and form to be by said division prescribed, on or before December 15 following the date fixed for final decisions by the county boards, and the division shall proceed summarily to hear and determine all such appeals and render its judgment thereon as soon as may be. * * *.'

Although the distinction between the two provisions is for present purposes nominal, the latter section applies on its face to appeals by a party, whether a taxpayer or a taxing district, who was originally the appellant before the County Board. See City of Newark v. American Cable Co., et al., (1934--1939) N.J.Tax Reports 21, 23 (Bd. of Tax App.1935). Inasmuch as Hackensack was the respondent there, its present appeal must fall within the ambit of N.J.S.A. 54:2--35. Newark v. American Realty and Investment Co., 26 N.J.Misc. 238, 58 A.2d 856 (Div.Tax App.1948).

Having arrived at the conclusion that N.J.S.A. 54:2--35 provided the authority for Hackensack's appeal to the Division, we necessarily must refer to the rules and regulations of the Division of Tax Appeals in order to determine the proper procedure for the appeal. If valid, they have the force and effect of law. State v. Atlantic City Electric Co., 23 N.J. 259, 270, 128 A.2d 861 (1957).

The Division promulgated its Revised Rules on August 1, 1959, specifically providing with regard to service of notice of petitions of appeal as follows:

'* * * On appeal by a taxing district, a copy of the petition shall also be served upon the respondent, if an individual, personally, or mailed to his last known address, or to his agent or attorney of record; in the case of a domestic corporation, upon the president or other head officer or agent in charge of its principal office in this State, or left at his dwelling house or usual place of abode, and if the president or other head officer or agent cannot be found, then upon the clerk, secretary, one of the corporation's...