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Duke Power Co. v. Somerset County Board of Taxation

Decided: April 9, 1940.


On certiorari.

For the prosecutor, Pitney, Hardin & Skinner (Shelton Pitney and William J. Brennan, Jr., of counsel).

For the defendant Hillsborough township, W. Eddy Heath (Charles F. Lynch and Frederick C. Vonhof, of counsel).

Before Brogan, Chief Justice, and Justices Donges and Porter.


BROGAN, CHIEF JUSTICE. The writ of certiorari, addressed to the Somerset County Board of Taxation and Hillsborough township, a municipality of Somerset county, directs that there be returned to this court the determination of said tax board "together with the record in said matter including the complaint, notice of hearing, notice of motion to dismiss complaint and proceedings," and other documents as well as "the transcript of the proceedings had before the board on August 30th and September 12th, 1939."

Now the return to the writ includes the complaint in question, a notice addressed to the Duke Power Company, a New Jersey corporation (prosecutor of this writ), advising that the township had made written complaint to the Somerset County Board of Taxation praying that an assessment of $17,673,877 be added to the tax duplicates for the taxing district of the township as of October 1st, 1938, on the intangible personal property of this corporation, which has its "principal, registered and chief office" in said municipality, which property was omitted from the assessment rolls of the taxing district of the township for the taxing year 1939. The notice further advised the date, place and hour set for hearing the matter by the County Tax Board. Next there is a special appearance by counsel for the proposed taxpayer and notice that motion would be made "to dismiss the complaint, hearing and proceedings thereunder for lack of jurisdiction of the subject-matter of the proceedings and of the person of the respondent" on the ground that the statute, under which it is proposed to add the omitted property to the tax duplicate (R.S. 54:3-20), is not in force and effect and further, that if the statute in question is completely efficient for the proceeding contemplated, then such property has not been "specified" within the statutory requirement; that the complaint does not allege any facts from which it may be inferred that the office of the power company is located in the taxing district;

that the complaint is not filed by an authorized person and, that the notice of hearing was ineffectual, and, finally, that the County Tax Board had no jurisdiction in the premises.

The motion challenging the complaint for failure to "specify" the intangibles was successful in great part, the County Tax Board in its determination of October 16th, 1939, having struck out the entire list of the alleged omitted intangible properties, save one item entitled, "Cash: $5,602,986." The board also held that it had jurisdiction over the subject-matter and the person of the power company.

There is also returned the proceedings before the Somerset County Board of Taxation, dated August 30th, 1939. We find nothing in the matter of a proceeding under date of September 12th, 1939, as called for in the writ. But in the "proceedings" returned we find that no witness was sworn and no testimony therefore adduced although several exhibits were marked and put in evidence. These are not returned with the writ. Such exhibits appear to have been: a certified copy "of the transfer of the corporate location [of the Duke Power Company] from Newark to Hillsborough Township." (Exhibit H-1); then a resolution of the governing body of the township authorizing the tax collector to proceed (Exhibit H-2); further, a complaint of the municipality which the secretary of the tax board, who was not sworn, says he received and which we assume is the facsimile of what is in the record before us, marked "Complaint" (Exhibit H-3); the next omitted paper is an affidavit of service (Exhibit H-4). Just what service was made or upon whom, we have no way of knowing. These papers, received in evidence and marked by the county board were not, save one (the complaint) printed in the record. These exhibits should have been included in the return to the writ.

The case was not argued. If it had been, attention would have been directed to these defects.

Turning now to the argument in the prosecutor's brief, it is first said that the County Board of Taxation, a statutory tribunal, has no powers extra the statute. This may be conceded but we are not directed to any matter wherein the county board exceeded its powers or to any irregularity.

The second point is that there is a failure to "specify," as the statute ordains, one element of the property listed in the complaint for addition to the tax duplicates. This is directed at the money item which is specified as "Cash." The argument is that the specification is insufficient; that if the municipality meant money in bank the depositories of it are not specified; and, further, that if it be money in the bank, then such property is not cash or money but is rather a debt between the depositor and the bank from which the prosecutor concludes that the power company has no property, as such, in the bank. We find no merit at all in this argument. This money item is different in character from the rest of the list of omitted personal property. The extent of the item is stated in dollars. If the amount be correct its location is of no importance. The taxpayer is sufficiently informed and the ...

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