On rule to show cause why a writ of mandamus should not issue.
For the prosecutor of the rule, Herbert A. Kuvin.
For the respondents, Raymond Schroeder and Thomas L. Parsonnet.
Before Justices Case, Donges and Colie.
The opinion of the court was delivered by
CASE, J. This is the return of a rule to show cause why either a peremptory or an alternative writ of mandamus should not issue directing the City of Newark and Vincent J. Murphy, receiver, to cancel the third and fourth quarters of the 1941 taxes as shown on a tax bill covering the property of prosecutor in the City of Newark. Prosecutor took title, on or about July 25th, 1941, in partial reliance upon an official certificate of search for municipal liens. The property so acquired, and upon which the disputed tax was levied, consisted of a plot of land with a newly erected house thereon. The certificate attested, as of July 10th, 1941, that the acting comptroller had searched the records in his office for unpaid taxes and assessments affecting the property and had found that no unpaid taxes and assessments theretofore levied, assessed or made by and on behalf of said city existed against said lands and real estate. The certificate further bore notice that the taxes for 1941 were payable quarterly, February 1st, May 1st, August 1st and November 1st, and would constitute a lien on and after December 1st, 1941. Another paper upon which prosecutor says she relied in taking title was an official tax receipt, produced at the closing, certifying that the first quarter taxes, $16.97, due February 1st, 1941, and the second
quarter taxes, $16.98, due May 1st, 1941, had been paid. The receipted tax bill bore this notation: "This preliminary bill is for the first half year's tax only. An adjusted bill for the entire year's tax will be forwarded later." It may be conveniently noted here that prosecutor, in receiving and relying upon the two municipal certifications, was thus put on notice that the taxes were payable quarterly on the named dates, that the bill against which the receipt ran was only a preliminary bill and was of such a nature that some adjustment would appear on the yearly tax bill to be forwarded later. The expressions "first quarter payment," "second quarter payment," and so on, do not refer to equal quarter parts of the tax amount but to the quarter yearly periods at which the tax installments come due. In the month of October, 1941, it was brought to prosecutor's attention that the city had, at some unnamed time, presumably after the closing of title, rendered a bill "for the third and fourth quarters for the year" showing that the total tax for the year was $327.75, less the sum of $33.95 already paid. The explanation for the great difference in the amounts for the two half-year periods was that the preliminary bill, viz., the bill for the first and second installments, in accordance with the statute (infra), was based on the 1940 assessments made when there were no improvements, whereas the assessment for 1941 included the house. The question of whether or not the 1941 assessment should have included the house is not properly before us.
The statutory provisions relied upon by prosecutor for the relief sought are R.S. 54:5-11 and succeeding paragraphs which provide that the properly designated officer shall have power to make official searches for municipal liens and that upon receipt for the appropriate fee the officer "shall make an examination of the records of the municipality, and, * * * issue a certificate certifying the taxes, assessments or other municipal liens or charges, levied or assessed against the property described in the application, which are liens thereon at the date of the certificate. He shall include therein all unpaid installments of assessments theretofore levied and
in force, whether due or not;" and, further, that "a person who shall acquire for valuable consideration an interest in lands covered by an official tax search, in reliance on that search, shall hold such interest free from any municipal lien held by the municipality not shown on that search." Prosecutor's claim must be grounded in that statute or fail.
It is prosecutor's contention that the municipal certificate of tax search should have shown the 1941 assessment, viz., the value of the property as assessed by the assessor, and that since it did not so show she should be permitted to retain her fee in the land free from a municipal lien for the unpaid portion of the 1941 tax. (R.S. 54:5-17, the statutory provision last above quoted.) In precise words it is her contention that it was the duty of the City of Newark to have "set forth in the tax search in effect as follows: 'Subject to taxes for the year 1941, land assessed at $900, building assessed at $4,800, payment to be made in quarterly installments as adjusted on the second half tax bill.'" We think that her contention is unsound and that the point of her departure from sound reasoning is in a mistaken understanding of the word "assessments" as used in the statute concerning municipal searches. In our tax law the word "assessment" is used to refer to two entirely different concepts; usually either the inherent matter or the context will clearly indicate the intended meaning. In its initial meaning the word refers to the valuation which is given to property by the municipal assessor as a basis for the application of the tax rate and the ascertainment of the tax -- an annual procedure to which, speaking generally, all property is subjected. The annual assessment precedes and is complementary to the annual tax. It is that sort of an assessment that enters the present case. Secondarily the word is used to describe an ...