On appeal from the Supreme Court, whose opinion is reported in 109 N.J.L. 395.
For the prosecutor-appellant, Collins & Corbin.
For the defendants-respondents, William A. Stevens, attorney-general.
The opinion of the court was delivered by
PERSKIE, J. This appeal brings up for review a judgment of the Supreme Court, dismissing the writ of certiorari to review the tax levied by the state board of taxes and assessment on appellant's main stem, tangible personal property and franchise, more commonly designated as first, third and fourth class property, for the year 1931.
The appellant contends that the tax in question was levied at a rate in excess of the rate provided by law, and, therefore, the tax is excessive; that the tax unlawfully discriminates against appellant and denies it the equal protection of the laws in violation of the fourteenth amendment to the constitution of the United States; that the tax to the extent that it is in excess of the lawful tax, deprives appellant of its property without due process of law, in further violation of the fourteenth amendment to the federal constitution; that the remedy suggested by the Supreme Court to meet the requirements of the equal protection of the laws and the due process of law, is inapplicable, and, in any event is no remedy at all under the decisions of the United States Supreme Court; and that the Supreme Court could and should have either reduced the tax or remitted the matter to the state tax department with instructions to reduce it.
The respondents deny the applicability of these contentions to the instant case. The appellant's objections are the outgrowths of its alleged basic or fundamental grievance, namely, that the "average rate of taxation" was not computed by the use of true values.
The legislative provisions relative to the manner of ascertaining this rate are contained in Pamph. L. 1888, p. 269, and in chapter 82 of the laws of 1906 (Comp. Stat., p. 5279), and also in chapter 4 of the laws of 1922. 2 Cum. Supp. Comp. Stat. 1924, p. 3547, pl. 447d. In substance
said chapter 82 of the laws of 1906, provides that the assessor in every taxing district of the state shall prepare and forward annually to the state board of assessors (now state tax commissioner) a certificate, under oath, showing the true value of all property, real and personal, located in his taxing district other than the property of railroad and canal companies, but including the assessed values of so-called second class railroads and canal property; that the aggregate value of all the property, real and personal, so certified, shall be deemed to be the aggregate value of the general property in the state; that in each taxing district the amount obtained by multiplying the value of all the property in such taxing district by the rate of taxation therein shall be deemed to be the total taxes in said taxing district; that the aggregate of the said total taxes so ascertained, shall be deemed to be the aggregate taxes of the state. The act further provides that the "average rate of taxation" shall be computed and determined by the said board (now state tax commissioner) by dividing the aggregate taxes by the aggregate value of the general property in the state and that the rate so arrived so arrived at shall be entered upon the records of the board (now state tax commissioner) and shall constitute the "average rate of taxation" for the year.
Notwithstanding the clear provisions of the law of arriving at the "average rate of taxation" on its property in question, appellant asserted and sought to establish an organized and determined effort of local assessors to assess local property at less than its true value. The practice or the method employed by local assessors throughout the state to bring about this result, it is charged, was to assess all property other than that of the appellant at not more than sixty per cent. of its true value. It is claimed that the property of the appellant was assessed at one hundred per cent. of its true value. The result was that the average tax rate, so computed, amounted to $4.081 per $100 of value. It is further contended that if the average tax rate had been computed according to the true value of all property subject to local taxation throughout the state, as provided by law, the rate would not have been more than $2.093 per $100 of value.
It therefore seems sound in logic and clear in reason that appellant must stand or fall on its ability to sustain by competent and satisfactory proof the basic or fundamental grievance asserted by it. For, if the foundation falls, all reasons based on that foundation must likewise fall.
We therefore pass over all other questions and approach the inquiry, namely, did the appellant, by proper and satisfactory proof, sustain its basic or fundamental grievance? We think not.
Appellant endeavored to fashion its proof to comply with the character of the evidence that seems to appear in the class of cases of which Louisville and Nashville Railroad Co. v. Green et al., 244 U.S. 522, is typical. But was the testimony in the instant case sufficiently definite, positive or certain in quality or quantity to overcome the presumption of the correctness of the assessments made? We do not think so. In the case of Estell v. Hawkins, 50 N.J.L. 122 (at p. 125), it was held:
"* * * the presumption is in favor of the correctness of the estimation made by the assessor, the sworn officer, and before a tax can be disturbed on the ground alleged, the burden is put upon the objector to show by his proofs a clear error in such estimation.
"When the testimony does not decidedly bear against the correctness of the assessor's action, the ...