Switz v. Middletown Tp., Monmouth County

Decision Date11 March 1957
Docket NumberNo. A--53,A--53
Citation23 N.J. 580,130 A.2d 15
PartiesOlivia Wrightson SWITZ, Plaintiff-Respondent, v. TOWNSHIP OF MIDDLETOWN, In the COUNTY OF MONMOUTH, a municipal corporation, William C. Johnson, Assessor of the Township of Middletown, and Monmouth County Board of Taxation, Defendants- Appellants.
CourtNew Jersey Supreme Court

Lawrence A. Carton, Jr., Atlantic Highlands, argued the cause for appellant Middletown Tp. and William C. Johnson, assessor (Roberts, Pillsbury & Carton, Atlantic Highlands, attorneys).

Herbert J. Hannoch, Newark, argued the cause for respondent (William S. Myers, Newark, of counsel; Hannoch, Weinstein, Myers & Stern, Newark, attorneys).

John F. Crane, Deputy Atty. Gen., argued the cause for respondent Monmouth County Board of Taxation (Grover C. Richman, Jr., Atty. Gen., and Thomas P. Nolan, Deputy Atty. Gen., on the brief).

The opinion of the court was delivered by

HEHER, J.

By summary judgment for the plaintiff entered in the Superior Court in this proceeding in lieu of the prerogative writ of Mandamus, the defendant assessor of the Township of Middletown was directed to 'value and assess' all taxable real property in the township for the year 1957 and subsequent years 'by uniform rules and according to the same standard of value, which standard shall be the full and fair value of such real property and at the price at which, in his judgment, such property would sell for at a fair and Bona fide sale by private contract on October 1st of the preceding year'; and the defendant Monmouth County Board of Taxation was enjoined, 'by May 1, 1956 in accordance with law, to investigate, revise, correct and equalize all assessments made' by the defendant assessor of taxable property in the township for the tax year 1956 'and subsequent years' and, in particular, to revise, correct and equalize all such assessments by 'uniform rules and according to' the given standard of 'full and fair value.'

And the assessor was directed, in the event the county board 'should require him so to do,' 'in accordance with R.S. 54:4--16 (N.J.S.A.) and other applicable statutes,' to 'make up and prepare corrected tax lists and duplicates for the tax year 1956 under the supervision of said board, * * * in which corrected tax lists and duplicates he shall comply with the directions of said board and shall value and assess all real property subject to taxation' in the township by the same standard of 'full and fair value.'

The defendant township was ordered to 'appropriate in accordance with law, such monies as may reasonably be necessary and required by it and by' the defendant assessor 'to comply with the foregoing.'

By way of cross-claim, the township and the assessor alleged that on September 28, 1955 the Director of the Division of Taxation, 'in the further performance of his duties under N.J.S.A. 54:1--35.1, determined the average ratio of assessed value to true value of the real property in each of the other 51 municipalities in the County of Monmouth' that the 'percentages in each case were less than 100% Of true value,' and there was no appeal from this determination by any of the municipalities, and the time for appeal had expired; that the assessors of the other municipalities of the county 'are now preparing or shortly will prepare and file' their respective real property assessment lists and tax duplicates for 1956, and in the event of judgment in accordance with the prayer of the complaint, 'these defendants will be required to bear a disproportionate and excessive portion of the taxes and tax burden' of the county; and that 'it is the duty' of the county tax board to investigate, revise, correct and equalize 'all assessments in all taxing districts' in the county 'so that all tax assessments are determined by uniform rules and according to the same standard of value, and annually to ascertain and determine, according to its best knowledge and information, the general ratio or percentage of full value at which the real property of each taxing district is assessed' and to 'prepare an equalization table showing the assessed valuation of the real property in each district and the ratio or percentage by which the assessed valuation shall be increased or decreased in order to correspond to true value'; and there was a demand that if judgment be entered against the township and the assessor in accordance with the complaint, the county tax board be ordered to 'investigate, revise, correct and equalize' 'all assessments made by the various assessors and assessing agencies of taxable property' in the several taxing districts of the county for 1956 and thereafter, 'so that the valuation of real property in each district, as equalized, shall be determined to be the true valuation of such property in computing the total ratables of each district for all apportionments of County and States taxes for distribution of money.'

The cross-claim was dismissed.

On defendants' joint appeal the Appellate Division, 40 N.J.Super. 217, 122 A.2d 649 (1956), affirmed the judgment, save as modified (a) 'to relieve all parties of its mandate' for the year 1956; (b) to vacate the 'mandatory order to compel fulfillment of the (county) board's statutory duty in the future'; and (c) to 'show a dismissal' of the cross-claim 'without prejudice.'

We certified the judgment for appeal on defendants' motion.

It was stipulated in the trial division: (1) the defendant assessor had filed with the county board of taxation 'his 1956 Tax List and Duplicate for the defendant Township,' 'prepared in accordance with the same general practice and procedure that was employed by said assessor for 1955 and prior years,' and 'In making such assessments' he 'believed that he was following the practice of other tax assessors throughout the County and State'; (2) the 'assessments therein contained are less than 100% Of the full and fair value of the assessed properties as of October 1, 1955 and less than 100% Of the prices at which the assessed properties would have sold for at a fair and Bona fide sale by private contract on October 1, 1955'; and (3) on September 28, 1955 the Director of the Division of Taxation, 'in the further performance of his duties under N.J.S.A. 54:1--35.1, et seq., determined that the average ratio of assessed value to true value of the real property in the Township is 15.45%,' as alleged in paragraph 10 of the complaint, and in his investigation resulting in this determination, the Director 'considered 862 current sales of property made in said Township reported to him by the defendant assessor,' the 'total amount of all such sales' being $9,268,037, and 'the total amount of the assessments upon the properties so sold,' but $1,385,575, as alleged in paragraph 11 of the complaint, and these averments 'are admitted with respect to the 1955 assessments, and the determinations of the Director (are) also generally applicable to the aforesaid 1956 assessment list.'

The complaint also alleged: (1) the Sixth Report of the Commission on State Tax Policy 'disclosed that residential property' in the township 'was assessed at 14% Of true value,' and 'commercial and industrial property * * * at 18% Of true value'; (2) the Director, in fixing the amount of school aid to which the township was entitled, 'had, on October 1, 1954, determined that real estate in the Township was being assessed at 16% Of true value'; (3) the county board, 'in the performance of its duty to equalize 1955 assessments in the various separate taxing districts' of the county 'had determined that for the year 1955 no change should be made in the assessments made by the defendant assessor'; and (4) 124 of the 862 current sales considered by the Director in his determination of September 28, 1955 represented sales of vacant land, and the 1955 assessments on such lands varied from 6.04% Of the sales price to 80% Thereof; 728 sales involved residences, and the 1955 assessments thereon varied from 3.08% Of the sales price to 80%; 5 concerned farms, the assessment variation here being from 10.43% Of the sales price to 35.16%, and 5 real estate of other classifications, the assessments varying from 10.10% Of the sales price to 30.97%.

The complaint further declared that plaintiff's property was assessed at $31,000 for 1955, and had 'all real property in the Township been assessed by uniform rules, then, by applying the Director's ratio of 15.45%, the true value of plaintiff's property would be in excess of $200,000'; that the property 'was not worth such sum,' and plaintiff 'was the subject to discriminatory assessment' and was 'being required to bear a disproportionate and excessive share of the taxes and tax burden of the Township.'

I

The appellants contend at the outset that the 'mandatory judgment to compel assessment on a true value basis constitutes an abuse of legal discretion because such action is likely to operate to the detriment rather than the benefit of the public.'

It is said in argument that, generally, Mandamus issues to 'compel a public official to perform a ministerial act or duty prescribed by law,' to 'compel the doing of a specific thing,' while here the purpose is to require the adoption of a 'course of official action,' albeit a 'course required by statute and imposed upon the official by law,' that would call for the court's general supervision of 'official conduct' and in 'numerous instances' a determination whether the particular officer has, 'to the extent of his power, carried out the mandate of the court,'--in a word, a continuous superintendence of duty performance for an 'indefinite time,' involving a 'general course of official conduct for a long series of continuous acts to be performed under varying conditions' and 'recurrent yearly controversies as to whether the order has been complied with,' a course alien to the nature of Mandamus, citing 34 Am.Jur., Mandamus, section 74; ...

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