Village of Ridgefield Park v. Bergen County Bd. of Taxation

• Decision Date: 07 June 1960
• Docket Number: No. L,L
• Citation: 162 A.2d 132,62 N.J.Super. 133
• Parties: VILLAGE OF RIDGEFIELD PARK et al., Plaintiffs, v. BERGEN COUNTY BOARD OF TAXATION et al., Defendants. 9321-58 P.W.
• Court: New Jersey Superior Court

Page 133

62 N.J.Super. 133

162 A.2d 132

VILLAGE OF RIDGEFIELD PARK et al., Plaintiffs, v. BERGEN COUNTY BOARD OF TAXATION et al., Defendants.

No. L 9321-58 P.W.

Superior Court of New Jersey Law Division.

June 7, 1960.

Morrison, Lloyd & Griggs, Hackensack (William R. Morrison, Hackensack, appearing) for plaintiffs.

Theodore I. Botter, Deputy Atty. Gen., for defendant Bergen County Board of Taxation (David D. Furman, Atty. Gen., attorney).

WAESCHE, J.S.C.

This opinion deals with that part of this suit which is in lieu of the prerogative writ of Mandamus. The plaintiffs are seeking a judgment of this court in lieu of Mandamus which, in general, will peremptorily command and strictly enjoin the Bergen County Board of Taxation to equalize the assessed value of all taxable real and personal property of Bergen County so that each taxing district of Bergen County shall bear its full, equal and just share of the Bergen County taxes; and to further order the Bergen County Board of Taxation to do everything required or permitted by law which may be necessary to secure the taxation of all taxable property in Bergen County at its true value in order that all taxable property in Bergen County shall bear its full, equal and just share of taxes. Some of the principal features of this troublesome problem were discussed in the opinion filed in this cause on April 12, 1960. Village of Ridgefield Park v. Bergen Cty. Bd. of Taxation, 61 N.J.Super. 170, 160 A.2d 316. (Law.Div.1960) . In that opinion, attention was directed to the fact that it had been incontestably established by the evidence that the Bergen County Board of Taxation made no effort whatever to equalize the personal property assessments; and that, as a result, the Bergen County taxes had not been fairly and justly apportioned among the taxing districts of Bergen County. By reason of this failure to equalize the personal property assessments, some taxing districts have been paying much less than their full and just share of the county taxes, while other districts have been paying considerably more than their full and just share. The plaintiffs seek to effectuate an improvement of this inequitable condition by an order of this court.

The 1875 amendment to the 1844 Constitution of New Jersey, Art. IV, § VII, par. 12 required that property Shall be assessed for taxation by uniform rules. The Constitution of 1947 also specifically requires that:

'Property shall be assessed for taxation under general laws and by uniform rules.' Art. VIII, sec. I, par. 1.

The Constitution of New Jersey is the source of all power and authority in the government of this State. The constitutional provision that property 'shall' be assessed for taxation by 'uniform rules' is a solemn mandate of the sovereign people of New Jersey themselves which is directed to all branches and divisions of our State Government. The New Jersey Constitution itself requires every state officer, before entering upon the duties of his office, to take an oath or affirmation to support the Constitution and to perform the duties of his office faithfully, Art. VII, sec. I, par. 1. The word 'shall', as used in this section of the Constitution, means 'must.' In the case of the Application of Braden, 105 Ohio App. 285, 148 N.E.2d 83 (Ct.App.1957), appeal dismissed 167 Ohio St. 548, 150 N.E.2d 294 (Sup.Ct.1958), it was held that the word 'shall' in the Constitution of Ohio means 'must.' And in the case of State ex rel. Gouge v. Burrow, 119 Tenn. 376, 104 S.W 526, 527 (Sup.Ct.1907), the court held that the word 'shall' in the Constitution of Tennessee is equivalent to 'must.' The opinion in the Tennessee Supreme Court also said:

'The provisions of these solemn instruments (constitutions) are not advisory, or mere suggestions of what would be fit and proper, but commands which must be obeyed. * * * The supremacy and permanency of republics depend upon the maintenance of the fundamental law, in its integrity, as written in Constitutions adopted by the people; and it is the solemn duty of all those temporarily vested with power, in all departments of the state, to do this. The necessities of a particular case will not justify a departure from the organic law. It is by such insidious process and gradual encroachment that constitutional limitations and government by the people are weakened and eventually destroyed. It has been well said:

"One step taken by the Legislature or judiciary in enlarging the powers of government opens the door for another, which will be sure to follow, and so the process goes on until all respect for the fundamental law is lost, and the powers of government are just what those in authority please to make or call them.' Oakley v. Aspinwall, 3 N.Y. 547, 568.'

See, also, the case of Jones v. Freeman, 193 Okl. 554, 146 P.2d 564 (Sup.Ct.1943).

In 11 Am.Jur., sec. 69, p. 686, this constitutional principle is stated as follows:

'It is the general rule to regard constitutional provisions as mandatory and not to leave any discretion to the will of a legislature to obey or to disregard them. * * * The use of the word 'shall' is generally considered as an indication of the mandatory character of the provision.'

In the case of Carow v. Board of Education of City of New York, 272 N.Y. 341, 6 N.E.2d 47 (Ct.App.1936), the court held that the legislature was under a duty to provide the machinery required to carry out the mandate of the constitution of the state. In 16 C.J.S. Constitutional Law § 65, p. 178, appears the following statement:

'Mandatory provisions of a constitution are binding on the legislature, and it is under obligation to perform duties imposed on it by the constitution.'

The Legislature is therefore under a solemn obligation to provide adequate means for assessing property for taxes by a uniform rule. No one may waive the public interest and welfare as determined by the Constitution. In the case of Fischer v. Twp. of Bedminster, 5 N.J. 534, 541, 76 A.2d 673, 676 (1950), our Supreme Court said:

'In the construction of the Constitution, we are enjoined to effectuate the intent of the people in adopting it; and this is to be found in the written expression. * * * There is * * * no room for construction where the expression is plain and unambiguous.'

In the case of Hargraves, Mayor, v. Solomon, 178 Ark. 11, 9 S.W.2d 797, 799 (Sup.Ct.1928), the court said:

'The general rule is well established that constitutional provisions are to be construed as mandatory unless by their express terms or by necessary implication a different intention is manifest. * * * Our duty is to carry out the provisions of the Constitution as indicated by its plain language.'

The object of the constitutional provision requiring the assessment of property for taxation by uniform rules is to secure to the people of this State the equalization of the tax burden levied on property insofar as it is practical. In the case of Trustees for Support of Public Schools v. City of Trenton, 30 N.J.Eq. 667, 677, 678 (E. & A. 1879), in an opinion written by Justice Depue, the court said:

'The reasons which induced the adoption of this constitutional provision are deep-seated in principles of public policy. Its object was to secure to the people of the state the equalization of taxation, so far as was practicable, by requiring the imposition of taxes on property by general laws, on the principle of uniformity in the subjects of taxation and in valuation.'

That a compliance with this provision of the Constitution is highly important to the welfare of the people is so plainly obvious as to make it unnecessary to discuss. The courts of New Jersey have said that the framers of the Constitution especially made this provision self-executing, because of its special importance to the people individually and collectively. No statute, therefore, is necessary to effectuate this constitutional provision. It means that no valuation assessment can be made lawfully on property except by a uniform rule even in the absence of enabling legislation; and it also means that any assessment levied in violation of this constitutional mandate is absolutely void Ab initio. Hence, the mode of assessing the value of both real and personal property for the county tax must be uniform throughout the county. Since the constitutional provision is manda tory, the legislative, executive, and judicial branches of the government, all creatures of the Constitution, are under a duty to comply with this constitutional command. In the case of State, North Ward National Bank of Newark, pros. v. City of Newark, 39 N.J.L. 380, 391 (Sup.Ct.1877), reversed on other grounds 40 N.J.L. 558 (E. & A. 1878), the Supreme Court said:

'That it was intended by this amendment (the 1875 amendment) to establish a uniform rule, which should be the only rule for assessing property, is so plainly manifested in the language used as to admit of no doubt.'

In the case of Jersey City v. Vreeland, 43 N.J.L. 638 (E. & A. 1881), the court said:

'This constitutional provision executed itself, * * *. Under this constitutional provision no tax can lawfully be laid upon property which is not determined * * * by a valuation of the property with respect to which it is laid upon a uniform rule of valuation * * *.'

In the case of Sisters of Charity of St. Elizabeth v. Chatham Tp., 51 N.J.L. 89, 16 A. 225 (Sup.Ct.1888), reversed on other grounds 52 N.J.L. 373, 20 A. 292, 9 L.R.A. 198 (E. & A. 1890), the Supreme Court said:

'That amendment (the 1875 amendment) was self-executing; * * *. It is addressed not merely nor primarily to the legislature but directly to the assessing officers, * * *.'

See also the case of Taylor v. Smith, 50 N.J.L. 101, 11 A. 321 (Sup.Ct.1887), and Cooper Hospital v. Camden, 68 N.J.L. 691, 54 A. 419 (E. & A. 1902).

Although the Legislature is under a solemn obligation to provide adequate means for assessing the value of real and personal property for taxation by a...