On application for writ of mandamus.
For the rule, John Warren.
Contra, J. Emil Walscheid.
[128 NJL Page 574] BODINE, J. (At chambers.) On Tuesday, July 28th, 1942, there was presented to me, sitting as a single justice, a petition signed by "John Warren, Special Assistant Attorney-General of the State of New Jersey, attorney for Hudson County Board of Taxation consisting of Leo Rosenblum, John F. Wilkens, Paul E. Doherty, Michael V. Donovan and August Ziegener, Petitioners," praying that a peremptory writ of mandamus may issue out of this court, directed to J. Emil Walscheid, Harry W. Vanderbach, The Board of Chosen Freeholders of the County of Hudson, Patrick Dolan, Joseph Neary, Patrick Monahan, Alexander D. Sullivan, Harry E. Bischoff and George Scheetz, commanding them, or any, or all of them, to turn over and deliver to the petitioner all of the official files, books, records, papers, documents and seal of the Hudson County Board of Taxation, together with any and all other property belonging to or devoted to the use of the said Hudson
County Board of Taxation, and further commanding any or all of them to turn over to and make available for the use of the petitioner, the permanent offices of the Hudson County Board of taxation in the Hudson County Court House of Jersey City.
The petitioner recites that "on July 23d, 1942, Governor Edison had dismissed all of the then members of the Hudson County Board of Taxation. The members so dismissed were Patrick A. Monahan, Alexander D. Sullivan, Harry E. Bischoff and George Scheetz. That on July 23d, 1942, the Governor of New Jersey appointed Leo Rosenblum, John F. Wilkens, Paul E. Doherty, Michael V. Donovan and August Ziegener as members of the Hudson County Board of Taxation and forwarded their appointments to the Senate of the State of New Jersey, which on said day confirmed same, and on the same day commissions were issued under the Great Seal of the State to each of said appointees, so commissioning them as members of the Hudson County Board of Taxation.
"On July 24th, 1942, each of said appointees took and subscribed his oath that he would faithfully perform the duties of his office as a member of the Hudson County Board of Taxation, and at the same time took and subscribed his oath of allegiance as required by law, which oaths were administered by, and subscribed before, the Honorable James R. Erwin, Judge of the Hudson County Court of Common Pleas; said oaths were immediately thereafter filed in the office of the Secretary of the State of New Jersey.
"After the said members of the Hudson County Board of Taxation took and subscribed their oaths as aforesaid, they proceeded to the permanent offices of the Hudson County Board of Taxation provided for it by the Board of Chosen Freeholders of Hudson County, and their entrance to said offices was barred by Patrick Dolan, Chief of the Hudson County Police, Joseph Neary, Inspector of the Hudson County Police, and two officers of said police force, who physically barred the way of all the members of the said board and prevented them from entering their offices, which action Patrick Dolan, Chief of said Police, stated was on orders of J. Emil Walscheid, County Counsel of the County of Hudson,
who was then and there present and directing the said police officials. Mr. Walscheid then told the members of the Hudson County Board of Taxation that he did not, and would not, recognize them as members or permit them at any time to enter the offices of the said Board."
The petition further recites that records were removed from the offices of the Tax Board and placed in a vault in the freeholders' office. The secretary of the Hudson County Board of Taxation would not attend their organization meeting, so that thereafter August Ziegener was elected secretary pro tem, and Leo Rosenblum as permanent president. "That John Warren, Special Assistant Attorney-General of the State of New Jersey, designated as such to represent the Hudson County Board of Taxation, went to the Hudson County Court House and there learned from two clerks of the Hudson County Board of Taxation that Harry W. Vanderbach, the secretary, was in the offices of the Hudson County Board of Taxation. They went to the entrance of the offices of the Hudson County Board of Taxation and their entrance thereto was physically barred by Inspector Joseph Neary of the Hudson County Police and two members of the said police force.
"Many appeals have been filed by taxpayers of the County of Hudson and many more will be filed, and it is anticipated that approximately 14,000 appeals from 1942 assessments will be filed. The last day for filing such appeals expires on August 15th (R.S. 54:3-21). A filing fee of $1 is required where the assessed valuation of the property involved in the appeal is over $5,000 (R.S. 54:3-21.1). The Hudson County Board of Taxation must make orders respecting the time and manner for hearing the appeals and hear and determine them and revise and correct the assessments in accordance with the true value of the taxable property (R.S. 54:3-22), and hear and determine all such appeals within three months after the last day for filing such appeals (R.S. 54:3-26), which time so limited expires on November 15th, 1942, and must enter upon the tax duplicate proper assessments of any property omitted by the assessor and give notice thereof of the time and place of the next meeting to the owner of the
property affected and furnish a copy of the entry to the clerk or collector of the taxing district, but such proceedings must be brought within one year from the date when taxes on real property become lien (R.S. 54:3-20), which is December 1st in each year (R.S. 54:5-6).
"The Hudson County Board of Taxation is without knowledge as to who is receiving the said filing fees and is unable to make the orders and conduct the hearings of appeals required by law or, without the records of the 1941 and 1942 assessments, ascertain what property has not been assessed and to assess the same and to otherwise perform the duties required by the statutes and constitution of the State of New Jersey."
At the same time there was offered in evidence a certified copy of the opinion and order of Governor Edison removing the old members of the County Board of Taxation.
So far as pertinent the opinion was as follows: "This proceeding was instituted before me on March 6th, 1942, by the City Affairs of Jersey City (hereafter referred to as 'the Committee') for the removal of the individual members of the County Board of Taxation of Hudson County (hereafter referred to as 'respondents') pursuant to R.S. 54:3-28. Mr. Rotherham, one of the individual respondents, having died since the institution of the proceedings, I am concerned only with the remaining four members of the Board.
" R.S. 54:3-28 is as follows: 'A member of a county board of taxation who shall willfully or intentionally fail, neglect or refuse to comply with the constitution or laws of this state relating to the assessment and collection of taxes, or to perform a duty prescribed by this title, may, after a proper hearing, be dismissed by the governor, and his office declared vacant. The governor may thereupon appoint his successor in accordance with the provisions of this chapter.'
"In its petition dated March 6th, 1942, the Committee requested that the individual respondents be dismissed from office on the ground that they have willfully and intentionally failed, neglected and refused to comply with the constitution and laws of this state relating to the collection and assessment of taxes, and to perform the duties prescribed by Title
54 of the Revised Statutes. Eighteen specifications of the alleged neglect and refusal of the individual respondents to act in accordance with law are set forth in the petition. A copy of the petition was served upon each of the respondents on April 7th, 1942, and they entered appearances in the proceeding on April 17th, 1942, by counsel, namely, J. Emil Walscheid, County Counsel for Hudson County, and filed an answer in which they all joined. On May 8th, 1942, ...