For the applicant, Raymond Chasan (John Warren, of counsel).
Contra, Charles A. Rooney, corporation counsel; Charles Hershenstein and Theodore C. Baer (John F. Lynch, of counsel).
BROGAN, CHIEF JUSTICE. (At chambers.) This is an application for a writ of certiorari to review the resolution of the Board of Commissioners of the City of Jersey City under date of February 24th, 1943, adopting the local municipal budget for the year 1943. It appears without dispute that the local governing body approved the budget on February 5th, 1943; that thereafter the same was advertised and transmitted to the office of the Commissioner of Local Government (40:2-7) who examined, approved and returned the same to the local municipal authorities on February 9th, 1943 (40:2-52 and 53).
The law provides that any person aggrieved by the determination of the Commissioner (Mr. Walter R. Darby) may apply to the Local Government Board (a state department) for a review and a re-determination within ten days (52:27a-24). The petitioner had such review and the Board, under date of February 23d, 1943, determined that the grounds for the appeal (infra) were not well founded and the determination of the Commissioner of Local Government was approved.
The present application rests on the affidavit of Mr. James E. Pope, chairman of the City Affairs Committee of Jersey City, who says the budget tax rate is arrived at on the basis of the total ratebles reported by the chief assessor of Jersey City to the Hudson County Board of Taxation and that the governing body has failed to consider the "equalization, revision and correction of its assessments" by the County Tax Board; that if it had the result would be a higher tax rate; that the city has a surplus cash revenue of $7,939,978.94 which is unencumbered and available for appropriation in the said budget; that the governing body has appropriated only $2,350,000 of this surplus and proposes to retain the balance as a free surplus; that the appropriation of the surplus would reduce the 1943 tax rate; that the budget violates the Local Budget Act (40:2-1, et seq.) and that it impinges upon certain rights of the taxpayer, guaranteed by the Constitution of New Jersey.
Out of the foregoing two points are made -- (1) that the tax rate should be increased in anticipation of revisions of
the assessments on real property now being undertaken by the county board of taxation, and (2) that the entire surplus mentioned should be appropriated in the 1943 budget in reduction of the amount to be raised by taxation.
Taking these points in order, it is manifest that the budget contemplates the contingency of reduction in the assessments as returned by the chief assessor to the county board of taxation. This is clear from a reading of the ninth paragraph of the affidavit supporting this application, wherein appears an excerpt from the "Explanatory Statement" accompanying the budget as follows: "The rate will also vary in accordance with any revision of the city's valuations made by the Hudson County Board of Taxation." The budget as adopted also states that the final tax rate may vary when the actual amount of state and county taxes for 1943 are finally apportioned.
This first point then has no substance because it seeks to have the local governing body anticipate an action of the county board which has not yet been concluded and for the further reason that the petitioner treats the tentative tax rate as final, when manifestly it is not final but subject to be changed by any revision of the assessments made by the county tax board and by apportioned state and county taxes as well.
Turning to the second point of the applicant's argument -- that the entire cash on hand should be appropriated in the 1943 budget -- counsel for the municipality contends that there is no such requirement in the pertinent statute and that the local budget statute not only carries no such mandate but rather that the intendment and the plain spirit of the act leaves the matter of appropriation of surplus revenue to the judgment and discretion of the local governing body. This question was considered by the Local Government Board, sitting in review of Commissioner Darby's approval of the budget. That board is thoroughly experienced in matters of this character and its finding and the views expressed, in arriving at it, are entitled to much weight. The Commissioners filed a concise and lucid exposition of their opinion on the merits of the question. They pointed out that the applicant relied on our statute N.J.S.A. 40:2-13 and
40:2-16 for his assertion that all surplus revenue should be appropriated for 1943. They held that the former section of the statute carries the heading "Form and Content" (of municipal budgets) and that the reference was to the "form" budgets shall take and what they shall contain and that "it was not intended to prescribe the amounts of specific items that are to be contained in budgets as anticipated revenues but relates to what the budget shall contain as to the sources of these anticipated items," and that the latter section of the statute made provision that the municipality "shall not include in any budget surplus revenue which shall exceed the amount of surplus revenue held in cash at the beginning of the budget year less any outstanding commitments or obligations against such cash, unless the state auditor, now the Commissioner of Local Government, shall give his prior written consent thereto." The opinion pointed out, rather graphically, that the legislature has fixed a "ceiling" on the amount of surplus revenue that might be included in a budget, but that the "floor" of such amount was left to the discretion of the Governing body "to be exercised in the light of existing as well as probable future conditions." They stated that they could find no statute which deprived the local governing body of its discretion to use "such an amount of cash surplus as it may be deemed desirable and advisable." No statute has been cited on this application which carries the obligation to include all surplus revenue in the budget and in a minute examination of the statute we have found none. In matters within the discretion of the municipal officers this court will not substitute its judgment for that of those to whom the subject-matter under ...