Switz v. Middletown Tp.

Decision Date10 May 1956
Docket NumberA--303,Nos. A--291,s. A--291
Citation122 A.2d 649,40 N.J.Super. 217
PartiesOlivia Wrightson SWITZ, Plaintiff-Respondent, v. TOWNSHIP OF MIDDLETOWN, a municipal corporation, William C. Johnson, and Monmouth County Board of Taxation, Defendants-Appellants. . Appellate Division
CourtNew Jersey Superior Court — Appellate Division

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

Lawrence A. Carton, Jr., Atlantic Highlands, argued the cause for appellants Township of Middletown and others (Roberts, Pillsbury & Carton, Atlantic Highlands, attorneys).

Harold Kolovsky, Asst. Atty. Gen., argued the cause for appellant Monmouth County Board of Taxation (Grover C. Richman, Jr., Atty. Gen., Thomas P. Nolan, Deputy Atty. Gen., on the brief).

Before Judges CLAPP, JAYNE and FRANCIS.

The opinion of the court was delivered by


In this proceeding in lieu of Mandamus the Law Division on January 16, 1956 ordered William C. Johnson, Assessor of the Township of Middletown, to assess all real property subject to taxation in the township for the year 1957 and subsequent years 'by uniform rules and according to the same standard, 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.' The quoted language is the substance of the general duty imposed upon a municipal assessor under the New Jersey Constitution, Article VIII, Section I, paragraph 1, N.J.S.A. 54:4--1 and N.J.S.A. 54:4--23.

The order also commanded the Monmouth County Board of Taxation 'to investigate, revise, correct and equalize' by May 1, 1956, all assessments made by Johnson of taxable property in the township for 1956 and subsequent years, and in particular to revise, correct and equalize all such assessments for the year 1956 and subsequent years by the same true value standard as was imposed upon the assessor.

Johnson was further commanded that in the event the county board under N.J.S.A. 54:4--56 and 47 should require him to do so, 'he shall make up and prepare corrected tax lists and duplicates for the year 1956 under the supervision of said Board, and 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 defendant Township' by the true value standard described above.

A cross-claim was filed by the township against the county board. In the event that plaintiff was granted the remedy applied for, the township sought thereby an order compelling the board to 'investigate, revise, correct and equalize all assessments made by the * * * assessors * * * of the remaining fifty-one municipalities' of Monmouth County so as to conform to the true value standard. Relief was denied on this claim.

The township, its assessor and the county board have appealed from the adverse judgment.

By agreement the matter was presented in the trial court on the pleadings, affidavits, stipulations and documents as if a plenary trial had been conducted. As the result, certain facts may be referred to as beyond dispute.

The plaintiff, Olivia Wrightson Switz, is a resident property owner of Middletown. All of the properties in the township, including hers, were assessed for 1956 by Johnson at less than 10% Of full and fair value as of October 1, 1955 and at less than 10% Of the prices at which they would have been sold at a fair and bona fide sale by private contract on October 1, 1955.

On October 1, 1954 the Director of the Division of Taxation, in performance of his duties under N.J.S.A. 54:1--35.1 et seq. in connection with the ascertainment of the amount of school aid to be paid by the State to the township determined that the average ratio of assessed value to true value of the real property in the township was then 16%.

On September 28, 1955 the Director again pursuing his official duty with respect to the same subject, concluded that the average ratio at that time was 15.45%.

The Director's investigation which resulted in the determination of the 1955 ratio included a study of 862 current sales of property in Middletown. Generally they occurred between July 1, 1954 and June 30, 1955. The total price of these sales was $9,268,307, but the total assessments upon the properties sold were only $1,385,575.

The following analysis of the sales shows the absence of uniform standard of assessment and disregard of true value as a basis for assessment:

                                           Range of Ratio    Weighted Average
                                         Assessed Valuation      for the
                Classification    Sales    to Sale Price      Classification
                ----------------  -----  ------------------  ----------------
                Vacant land ...... 124     6.04% to 80.00%             14.40%
                Residential ...... 728     3.08% to 80.00%             25.46%
                Farm .............   5    10.43% to 35.16%             22.89%
                Other ............   5    10.10% to 30.97%             12.67%
                                  -----  ------------------  ----------------
                Totals ........... 862     3.08% to 80.00%             15.45%

The uncontradicted affidavit of H. Rowland Major, State Supervisor, Local Property Tax Bureau, Department of the Treasury, who actually compiled the data under the supervision of the Director, points out that the 'ratio range runs from 3.08% To 80% Of assessed to true value.'

It is undisputed that these conclusions of the Director would be generally descriptive of the 1956 assessment list. And the stipulation was made that the 1956 tax list and duplicate had been prepared in accordance with the same general practice and procedure as in prior years, which methods the assessor believed accorded with the practice employed by other tax assessors throughout Monmouth County and the State. In actual confirmation of the stipulation, it appears from the Sixth Report of the Commission on State Tax Policy that in the tax years preceding 1953 residential property in the township was assessed at 14% Of its true value and commercial and industrial property at 18% Thereof.

The complaint herein was filed by the plaintiff on December 2, 1955, prior to the completion and delivery to the county tax board of the 1956 assessment list and tax duplicate. However, these documents were delivered to the board prior to the hearing in the Law Division. Among other things, plaintiff pleaded that her property was not assessed at true value but discriminatorily and oppressively, which required her to bear a disproportionate share of the tax burden. She alleged also that all of the real property in the township was being assessed at varying fractions and percentages of true value and that she 'is desirous of preventing a continuation and recurrence of the * * * discriminatory and illegal * * * assessment practices in said Township and of assuring the making of just, uniform and lawful assessments for the year 1956 and thereafter.'

The judgment demanded in the nature of Mandamus was broad and general. An order was prayed for commanding the assessor to perform his public statutory duty to assess all properties in the municipality, including that of the plaintiff, for 1956 and subsequent years at true value; and further commanding the county tax board to investigate, revise, correct and equalize all assessments for 1956 and thereafter so as to represent true value. Since, as already indicated, the 1956 assessment list had been filed with the county board, the relief requested was adjusted--apparently without objection--to the form recited in the final judgment.

At the outset we are confronted with problems concerning the method of redress. Appellants contend that Mandamus will not lie (a) where another remedy exists, or (b) where the duty to be enforced is a discretionary one or involves the exercise of discretion. In extension of the argument that Mandamus is barred where other relief is available, it is said also that R.S. 4:88--14 prevents pursuit of such peremptory procedure until the administrative remedy possessed by the plaintiff is exhausted.


Existence of Another Remedy.

Mandamus is an extraordinary remedy. Traditionally it cannot be employed where another adequate means of redress is available for the correction of the particular wrong. Edward C. Jones Co. v. Town of Guttenberg,66 N.J.L. 659, 51 A. 274 (E. & A.1901); Raison v. Board of Education, 103 N.J.L. 547, 137 A. 847 (Sup.Ct.1927); State ex rel. Lay v. Common Council of City of Hoboken, 75 N.J.L. 315, 67 A. 1024 (Sup.Ct.1907); 34 Am.Jur., Mandamus, § 42 (1941). However, a remedy to be deemed adequate must be one which is specific and competent to afford relief speedily, conveniently and effectively upon the very subject of the application. Raison v. Board of Education, supra; Edward C. Jones Co. v. Town of Guttenberg, supra, 66 N.J.L. at page 669, 51 A. at page 277; State ex rel. Heimov v. Thomson, 131 Conn. 8, 37 A.2d 689 (Sup.Ct.Err.1944); State v. Erickson, 104 Conn. 542, 133 A. 683 (Sup.Ct.Err.1926). The other relief must be 'realistically' adequate and equally convenient, beneficial and effective. Mandamus will not be refused when another remedy is tedious, circuitous or unnecessarily burdensome, or will not place the plaintiff In statu quo, that is, in the same position he would have been had the duty been performed. The other remedy must be one which itself enforces in some way the performance of the particular duty, and not merely a remedy which in the end saves the party to whom the duty is owned unharmed by its nonperformance. Garrou v. Teaneck Tryon Co., 11 N.J. 294, 94 A.2d 332, 35 A.L.R.2d 1125 (1953); Pierce v. Green, 229 Iowa 22, 294 N.W. 237 (Sup.Ct.1940); State v. Erickson, supra; 34 Am.Jur., Mandamus, § 44 (1941); Chase's Blackstone (3d ed. 1890), 669.


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