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Aichele v. Borough of Oaklyn

Decided: December 17, 1948.

HERBERT C. AICHELE, PLAINTIFF,
v.
BOROUGH OF OAKLYN, ET AL., DEFENDANTS



Proctor, J.s.c.

Proctor

Plaintiff, a taxpayer of The Borough of Oaklyn, N.J., challenges the validity of a resolution adopted by the governing body of the borough on August 4th, 1948. The resolution provided:

"Whereas, the Collector of Taxes advises that in the Tax Duplicate for the year 1948 an error in assessment was made on premises designated on the Official Tax Map of The Borough of Oaklyn as follows: (Then follow descriptions of 21 properties by plate, block and lot number, the respective owners' names and addresses together with reductions in the assessments ranging from $50.00 to $500.00 upon the various properties.)

"Whereas, said above assessments were an error:

"NOW, THEREFORE, BE IT RESOLVED by the Mayor and Borough Council of the Borough of Oaklyn, in the County of Camden, State of New Jersey, that:

"1. The Tax Collector, Treasurer and Borough Auditor be and they are hereby authorized and instructed to reduce the assessments on the above premises in the above amounts on the Tax Duplicate for the year 1948 as having been made in error and to credit the amount of taxes on said reduction of the 1948 taxes levied upon said property at the present rate of $6.92 per hundred."

Defendants argue at the outset that a judgment of dismissal should be entered for the reason that plaintiff "has failed to show the infringement of any private right and has failed to show any personal or property interest specially and immediately affected adversely by the resolution." It appears, however,

that our courts from an early date have lent their aid to private persons seeking to remedy wrongful acts of public officials, when the applicant is one of the class of persons to be most directly affected in their infringement of public rights. Cf. Ferry v. Williams , 41 N.J.L. 332, 337.

A reduction in the assessed valuation of the tax ratables in the municipality would necessarily be reflected on the tax burden of the remaining ratables of the municipality, including that of the plaintiff. The defendants assert that the reduction called for in the resolution is only approximately one-tenth of one per cent. of the total taxes for the year, and that this amount will be more than offset by unanticipated revenue within the control of the defendants; that the aforesaid resolution will make no change whatever in the tax rate of the borough. If the assessments were not reduced, however, it is obvious that there will be additional revenue to the borough. Though the pecuniary interest of the plaintiff is small, the standing of one otherwise qualified to question the resolution is not to be determined by the mere matter of dollars and cents involved. Cf. Schwartz v. Essex County Board of Taxation , 129 N.J.L. 129. Plaintiff has a legal status which would have permitted him to prosecute a writ of certiorari. Schwartz v. Essex County Board of Taxation, supra. Under the rules governing our courts, effective September 15th, 1948, the prerogative writ of certiorari is superseded and in lieu thereof reviewing, hearing and relief may be had as of right in the Superior Court. Rule 3:81-1. Certainly the plaintiff, as a taxpayer, is one of the class of persons to be most directly affected in their enjoyment of public rights. I find that plaintiff has a legal status which permits him to challenge the validity of the aforesaid resolution in this court.

It is conceded that a municipal corporation is a creature of the legislature, and can act, therefore, only under the authority of and in the manner accorded by statutes. Defendants contend, however, that plaintiff has the burden of proof "to show that the resolution in question is illegal and void"; that "there is no burden on the defendants to show that the resolution is legal"; and, "if there is any statutory authority

whatever under which the resolution can be sustained, it is submitted by defendants that it must be sustained." Defendants cite R.S. 54:4-54, R.S. 54:4-99, and R.S. 54:4-100 as ...


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