Union Terminal Cold Storage Co. v. Spence

• Decision Date: 20 December 1954
• Docket Number: No. A--57,A--57
• Citation: 110 A.2d 110,17 N.J. 162
• Parties: UNION TERMINAL COLD STORAGE COMPANY, Inc., Plaintiff-Appellant, v. Donald SPENCE, Director of Finance, etc., Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 162

17 N.J. 162

110 A.2d 110

UNION TERMINAL COLD STORAGE COMPANY, Inc., Plaintiff-Appellant, v. Donald SPENCE, Director of Finance, etc., Defendant-Respondent.

No. A--57.

Supreme Court of New Jersey.

Argued Nov. 22, 1954.

Decided Dec. 20, 1954.

Mark A. Sullivan, Sr., Jersey City, for appellant.

Leo Rosenblum, Jersey City, for respondent (John B. Graf, Jersey City, attorney).

The opinion of the court was delivered by

OLIPHANT, J.

This is an appeal from a judgment of the Superior Court, Law Division, entered in favor of the defendant-respondent and against the plaintiff-appellant. The cause was certified here on our own motion under R.R. 1:10--1(a).

The action was instituted by a complaint in lieu of prerogative writ (mandamus) against the director of revenue and finance and the City of Jersey City to compel them to comply with the provisions of N.J.S.A. 54:2--43 to allow a credit on the taxes due and owing for the year 1953 in accordance with a judgment of the Division of Tax Appeals entered May 29, 1953.

The statute in question reads as follows:

'Where a judgment final has been rendered by the Division of Tax Appeals in the State Department of Taxation and Finance involving real property such judgment shall be conclusive and binding upon the municipal assessor and the taxing district, parties to such appeal, for the assessment year and for the two assessment years succeeding the assessment year covered by the final judgment, except as to changes in the value of the property occurring after the assessment date. Where such changes are alleged, the petition of appeal shall specifically set forth the nature of the changes relied upon as the basis for such appeal. L.1946, c. 161, p. 729, § 14, supplementing Title 54, c. 2.'

The property in question was assessed by the City of Jersey City for the year 1951 at a total value of $530,000. The plaintiff-appellant took an appeal to the Hudson County Board of Taxation which affirmed the assessment, and from this affirmance it appealed to the Division of Tax Appeals which tribunal reduced the assessment to a valuation of $380,652 on the date above stated. During the pendency of the appeal the city continued to assess the real estate for $530,000 for the years 1952 and 1953. The plaintiff took an appeal to the county board from the assessment of 1952 but did not take a similar appeal from the 1953 assessment by the city.

However, the plaintiff paid all taxes as assessed by the city as they became due quarterly, up to and including the third quarter of 1953. On October 30, 1953, which was subsequent to the judgment of the State Division of Tax Appeals on the 1951 assessment, it paid to the city the sum of $2,575.58, which was the balance due for the year 1953 at the current tax rate as figured on the assessment of the property as reduced by the final judgment of the Division of Tax Appeals for the year 1951. The City Collector of Jersey City accepted this payment but refused to give a receipt showing that all taxes for the year 1953 had been paid on the property.

The action was filed to compel the defendant, the director of revenue and finance, 'to change the assessment figures on said lot for 1953 to accord with the judgment of the Division of Tax Appeals for the year 1951 and to change his tax books so as to show full payment of said taxes for the year 1953.' Various defenses were set up by the city contending a lack of authority to issue a receipt for any tax bill in less than the full payment of the amount shown on the books and records of the city and alleging lack of authority in various offices to comply with the statute. These defenses are predicated on the theory that the judgment of the Division of Tax Appeals entered on May 29, 1953 was subsequent to the time the 1953 assessment was made by the local assessor on January 10, 1953 (R.S. 54:4--35, N.J.S.A.), and corrected and confirmed as a final assessment by the county board on April 1, 1953 (R.S. 54:4--55, N.J.S.A.), and that no appeal had been taken to the county board from the 1953 assessment.

As to the latter point, the judgment of the Division of Tax Appeals became binding on the municipality from its date, May 29, 1953, as will be pointed out hereafter; therefore there would be no necessity for taking an appeal to the county board prior to August 15, 1953 (R.S. 54:3--21, N.J.S.A.). The principal defense of the city, however, was the contention of the defendant-respondent that the plaintiff-appellant could not avail itself of the provisions of the statute without having first exhausted all administrative procedures.

The trial court, in granting summary judgment in favor of the defendant-respondent, agreed with such contention and held that in order for the appellant-taxpayer to have the benefit of the statute he must have appealed to the county board in accordance with the regular administrative proceeding established in the Tax Act, and this appeal must be taken within time and in proper form.

With this conclusion we are not in agreement since we think it is not in accord with the legislative intention as expressed in the statute, and the legislative intention is controlling in such a situation. This is the so-called 'freeze' statute, and in City of Newark v. Fischer, 8 N.J. 191, at page 199, 84 A.2d 547, at page 551 (1951), Mr. Justice Wachenfeld clearly explained the mischief the statute was intended to remedy when he said for this court:

'The evil which the 'freeze' statute sought to remedy was repeated yearly increases in the assessed value of property, not related to or justified by any changes increasing its market value, and resulting in harassment of the taxpayer, subjecting him to the trouble and expense of annual appeals to the county tax board.'

When a statute such as this alters and amends the previous law and changes rights of action or creates new rights of action, it is important in discovering the intention of the Legislature to ascertain the old law, the mischief and the proposed right of remedy. Blackman v. Iles, 4 N.J. 82, at page 89, 71 A.2d 633, at page 636 (1950), and the cases cited there.

It is also a fundamental rule of statutory construction that every requirement of the act must have the full effect the language imports unless such interpretation of the words will lead to great inconvenience or subversion of some important object of the act or would lead to an absurdity. Proprietors of Morris Aqueduct v. Jones, 36 N.J.L. 206 (Sup.Ct.1873), affirmed 37 N.J.L. 556 (E. & A.1875).

In determining whether an act is imperative and mandatory or merely directory there is a presumption that the word 'shall' (such word appears in this statute) is used in an imperative and not a directory sense, and while this presumption is not a conclusive one it can only be overthrown by something in the character of the legislation or in the context which will justify a different meaning. Haythorn v. Van Keuren & Son. 79 N.J.L. 101, 74 A. 502 (Sup.Ct.1909); City of Jersey City v. State Board of Tax Appeals, 133 N.J.L. 202, 43 A.2d 799 (Sup.Ct.1945). We find no such factors or evidence present here.

The statute in clear and unequivocal language states:

'Where a judgment final has been rendered by the Division of Tax Appeals * * * involving real property such judgment Shall be conclusive and binding upon the municipal assessor and the taxing district, parties to such appeal, For the assessment year and for the two assessment years succeeding the assessment year covered by the final judgment, * * *.' (Italics supplied.)

The only variation is found in the exception of the statute which refers to changes in the value of the property occurring after the assessment date, and where such changes occur they must be taken advantage of by an appeal to the county board. It is admitted no change as to valuation occurred here.

To insist, as the city does, that during the pendency of such appeal the taxpayer should appeal for each of the next two successive years and...