Jersey City v. Zink

• Decision Date: 28 January 1946
• Parties: JERSEY CITY et al. v. ZINK, State Comptroller, et al.
• Court: New Jersey Supreme Court

133 N.J.L. 437

44 A.2d 825

JERSEY CITY et al.

v.ZINK, State Comptroller, et al.

No. 34, May Term, 1945.

Court of Errors and Appeals of New Jersey.

Nov. 29, 1945.

Writ of Certiorari Denied Jan. 28, 1946.

See 66 S.Ct. 493.

Appeal from Supreme Court.

Consolidated mandamus proceedings by City of Jersey City and others against Homer Zink, Comptroller of the Treasury of New Jersey, and others, to require the comptroller to draw his warrant upon the State Treasurer for distribution of interest which became due on taxes assessed against class 2 railroad property and which had been paid into State Treasury, to the municipalities in which such property was situated. From a judgment of the Supreme Court, 132 N.J.L. 601, 42 A.2d 272, the relators appeal.

Reversed and remanded with direction.

Syllabus by the Court.

1. Mandamus is the proper remedy to compel a State officer to perform a ministerial duty.

2. Such a proceeding is not a suit against the State.

3. Under R.S. 54:27-4, N.J.S.A., as construed in Wilentz v. Hendrickson, 135 N.J.Eq. 244, 38 A.2d 199, the interest for delinquency in tax payments follows the principal as an integral part thereof, constituting the tax debt and is distributable under R.S. 54:24-11 and 13, N.J.S.A.

4. Chapters 4, 5, 6 and 34, P.L.1945, held unconstitutional, being discriminatory and special enactments regulating the internal affairs of towns and counties in violation of Article IV, Sec. 7, par. 11 of the State Constitution, N.J.S.A.

OLIPHANT and COLIE, Justices, and McGEEHAN, WELLS, and FREUND, Judges, dissenting.

Charles A. Rooney, of Jersey City, for relators-appellants Jersey City, Alfred Pakenham, Marie A. Pakenham, and William A. Nolan.

John N. Platoff, of Union City, for relators-appellants Weehawken Tp. and Harry C. Moore.

Samuel L. Hirschberg, of West New York, for relators-appellants Town of West New York, Peter Dugan, and Frances Dugan.

John J. Fallon and Otmar J. Pellett, both of Hoboken, for relator-appellant Mayor and Council of City of Hoboken.

Edward A. Smarak, of Union City, for relator-appellant Town of Secaucus.

Charles Hershenstein, of Jersey City, and Milton B. Conford, of Newark, of counsel with relators-appellants.

Walter D. Van Riper, Atty. Gen. (Herbert J. Hannoch, of Newark, and Benjamin C. Van Tine, of Trenton, of counsel), for respondent-comptroller Homer C. Zink.

Jacob Fox, of Newark, for respondent Board of Education of City of newark.

CAMPBELL, Chancellor.

This is an appeal from a judgment of the Supreme Court entered upon an order discharging certain consolidated rules directing the State Comptroller to show cause why a writ of mandamus should not issue commanding him ‘to draw his warrant upon the Treasurer of the State of New Jersey for the distribution of interest which became due on taxes assessed against Class 2 railroad property and has been paid into the State Treasury, to the municipalities in which said Class 2 property was situated * * *.’

The Supreme Court held, 132 N.J.L. 601, 42 A.2d 272:

‘The questions at issue are broadly two:

‘I. Will the writ go against a state officer? This depends upon the question of whether R.S. 54:24-11, et seq., N.J.S.A., still controls the distribution of moneys derived from railroad tax payments.

‘II. Are Chapters 4, 5, 6, and 34 of Pamphlet Laws 1945, constitutional enactments?’

The members of the Court found themselves ‘not completely in accord’ upon the second question above stated and dismissed the consolidated rules to show cause, stating ‘The constitutionality of the statute is the main issue before us.’

Consequently this appeal to this Court under R.S. 2:83-15, N.J.S.A.

Following the decision of this Court in Wilentz, Attorney General, etc., v. Hendrickson, State Treasurer, &c., 135 N.J.Eq. 244, 38 A.2d 199, the delinquent railroads paid into the State Treasury, as required by statute, $20,203,639.33 on account of principal of past the taxes and $15,276,373.33 in interest due and owing under R.S. 54:27-4, N.J.S.A. The correct amount of this latter item being in dispute between the railroads and the State at that time and is in litigation now. Certain other railroads are still in default as to principal or interest or both. The tax arrearages were for the years 1932 to 1940 inclusive.

The principal and interest on the past due Class I, III, and IV railroad taxes were paid into the State Treasury pursuant to R.S. 54:24-6, N.J.S.A. and the paid principal of Class II railroad taxes was allocated and distributed by the State Treasurer and State Comptroller to the municipalities entitled thereto under R.S. 54:24-11 and 54:24-13, N.J.S.A. The State Comptroller refused to allocate and distribute to these same municipalities $8,076,074.60 which is the interest actually paid by the railroads on Class II taxes, and he challenged their right to it under R.S. 54:24-11 and 54:24-13 on the ground that these sections did not specifically authorize the distribution of it on the same basis as the principal of Class II taxes.

This impasse between the relators-appellants and the respondent-comptroller was reached late in 1944. Early in 1945, and subsequent to our judgment in Wilentz v. Hendrickson, supra, the legislature passed P.L.1945, Chapters 4, 5, 6 and 34, the ostensible general purpose of which was a new and integrated statutory scheme for the allocation and distribution of the interest already paid and to be paid on such past due railroad taxes. The real and drastic change designed to be accomplished by the statutes is the diversion of all the interest, paid or unpaid and accrued on unpaid principal, of all Class II railroad taxes from the municipalities in which such properties are located and for whose purposes such taxes were assessed, levied, collected and dedicated by statute, R.S. 54:24-7 to 54:24-13, N.J.S.A. and to require that they be paid into the treasury of the State as general funds subject to use by the State or kept available for such other purposes as the legislature should determine.

The respondents, at the outset, raise two objections to the proceedings; (1) They are in fact a suit against the State which may not be maintained without its consent; (2) mandamus will not issue in a doubtful case.

A consideration of all the applicable statutes, together with decisions of this Court construing them, discloses that the duties imposed by these sections of the statute upon the State Comptroller are ministerial and do not involve any exercise of discretion by him as a State officer.

A suit against a State officer or agency to compel by mandamus, or similar process, the performance of official duties of a purely ministerial nature, involving the exercise of no discretion is not a suit against the State and may be maintained without its consent, 59 C.J., p. 312, Sec. 466; 38 C.J., p. 659, Sec. 198. It is the essence of a prerogative writ, such as mandamus, that it is an appeal to the crown or sovereign state to remedy whatever may be amiss in the conduct of its public affairs, because the administration thereof is not chargeable to the crown personally or the state, but is chargeable to the ministers or officers who are accountable to the people. The prerogative of the crown or state extends not to do any injury; for being created for the benefit of the people, it cannot be exerted to their prejudice. 3 Blackstone, p. *255.

The reason for the rule that mandamus will lie against a State officer is that a sovereign state must be presumed to be willing that its laws shall be obeyed. Through its law it speaks to its servants and commands them to do that which is required. Certainly those servants by their acts of disobedience do not represent or stand for the State. The action on mandamus, therefore, instead of being a suit against the State, is against its servants to compel them to do that duty, which by accepting office, they agreed to perform, 59 C.J., p. 312. Where the duty of a public treasury official is delineated and ‘charged by statute,’ the writ will clearly lie. Tapping on Mandamus, p. *265.

This we conceive to be the situation here presented. Cf. Angle v. Runyon, Comptroller, 38 N.J.L. 403; Compton v. Comptroller, 52 N.J.L. 150, 18 A. 584; Willson v. Swain, Treasurer, 60 N.J.L. 115, 36 A. 778; Trustees of Rutgers College v. Morgan, Comptroller, 70 N.J.L. 460, 57 A. 250, aff'd 71 N.J.L. 663, 60 A. 205. In the very case relied on most strongly by the respondent-comptroller to support his arguments as to the proper construction of R.S. 54:24-11 and 54:24-13, Burlington County v. Martin, 128 N.J.L. 203, 25 A.2d 17, aff'd 129 N.J.L. 92, 28 A.2d 116, this Court did not question that mandamus would lie against the State Comptroller. The comptroller is an auditing officer and cannot question the validity of an act of legislation directing the payment of money by the State or disregard its authority, Angle v. Runyon, Comptroller, supra, 38 N.J.L. pp. 408, 409.

We hold, therefore, adversely to the contentions of the respondent-comptroller on both of these preliminary objections.

With these questions disposed of we turn our attention to the other basic issues suggested, but not decided, by the Supreme Court.

The first is: Is the interest on delinquent taxes against Class II railroad properties a part of the tax and does it follow the principal?

We conclude that it is and does. This is conclusively disposed of by Wilentz v. Hendrickson, 135 N.J.Eq. 244, 256, 38 A.2d 199. The holdings of this Court in Burlington v. Martin, 129 N.J.L. 92, 28 A.2d 116, affirming 128 N.J.L. 203, 25 A.2d 17, and Wilentz v. Hendrickson, 135 N.J.Eq. 244, 38 A.2d 199, are not in conflict. Neither the class of tax nor the statutes are identical.

The interest follows the principal in a transfer inheritance tax and is wholly retained by the state. The amendment whereby the county of decedent's residence profits to the extent of five per cent of the tax, 54:33-10, does not include any part of the interest. The statute...