For the relator, Saul A. Wittes.
For the respondent, Raymond Schroeder (by Thomas L. Parsonnet).
The opinion of the court was delivered by
COLIE, J. This matter is before the court upon a motion to quash the return to an alternative writ of mandamus.
The alternative writ allowed upon the relation of Leslie H. Jamouneau, a citizen and taxpayer of the City of Newark commands and enjoins Vincent J. Murphy, Director of Revenue and Finance, acting as comptroller of the City of Newark "to hold a complete and all-inclusive tax sale and exempt therefrom no delinquent properties required to be sold by law, and exempting therefrom only those delinquent properties
upon which the City of Newark has contracts with delinquent taxpayers for the payment of such delinquency pursuant to the provisions of Pamph. L. 1943, ch. 7, or identical statutes passed in prior years, and in your discretion those items where the total tax delinquency is less than $10 in accordance with the provisions of R.S. 54:5-20; or cause to us of the contrary therefor signify." The return filed by the respondent sets forth that upon taking office "he adopted and announced the policy that a delinquent taxpayer could make arrangements to pay at once twenty-five per centum of all delinquent and current taxes, and to pay fifty per centum of the balance within twelve months, in monthly installments; and that, if such arrangements were fully carried out, the same arrangement would be renewed, so that the full amount of the delinquency would be paid off within eighteen months or two years." He asserts that the aforesaid practice finds authorization in chapter 7, laws of 1943 and R.S. 54:5-19.
To determine whether the course of action taken by respondent has the claimed statutory authorization, it is necessary to review the course of legislation leading up to the adoption of the two statutes above mentioned, i.e., R.S. 54:5-19 and Pamph. L. 1943, ch. 7. In 1918 the legislature enacted chapter 237 known as the "Tax Sale Revision." Section 16 thereof, so far as here pertinent, reads:
"When any municipal lien, or part thereof, on real property remains in arrears on the first day of July in the year following the date when the same became in arrears, the collector, or other officer charged by law in the municipality with that duty, shall enforce such lien by selling such property in the manner set forth in this act."
There was an amendment by chapter 120, laws of 1919, leaving unchanged the mandatory feature that the officer charged with such duty "shall enforce such lien by selling such property in the manner set forth in this act."
By chapter 251, laws of 1933, section 16 of the "Tax Sale Revision" was further amended and, with no substantial change, incorporated in the Revision ...