McGeehan, Colie and Eastwood. The opinion of the court was delivered by McGeehan, S.j.a.d.
[7 NJSuper Page 69] On April 20, 1949, the Borough of Totowa filed a petition with the Division of Tax Appeals praying that the tax rate for the Borough for the year 1949, as certified by the Passaic County Board of Taxation, be set aside and corrected. Eleven other taxing districts in Passaic County filed similar petitions. On May 16, 1949, a judgment was entered by the Division of Tax Appeals dismissing all the petitions on the ground "that the appellants did not comply with the condition precedent to the filing of such appeals in that they did not first appeal to the Passaic County Board of Taxation." The twelve taxing districts appeal from this judgment.
Since all the appeals raise the same questions, the parties have argued the appeal of the City of Clifton, and it will be disposed of as the test case.
The tax lists and duplicates filed with the County Board of Taxation for the year 1949 by the assessors of the sixteen taxing districts in Passaic County, pursuant to R.S. 54:4-35, contained the complete assessment list for each taxing district, which includes the real property assessments, personal property assessments, and assessments for second-class railroad property. The tax list and duplicate for Clifton, as filed by the assessor, contained assessments of $64,679,150 for real property, $7,811,700 for personal property, $103,660 for second-class railroad property, and after statutory deductions of $2,083,150 there remained a net valuation of $70,511,360, upon which county taxes would be apportioned in the absence of revision, correction or equalization by the County Board.
Acting under the authority of R.S. 54:3-17 et seq. , the County Board met for the purpose of equalizing the assessments of real property between the several taxing districts of the county. After hearings, it determined that the assessed valuations of the real property, as contained in the tax lists and duplicates of the twelve appellant taxing districts, should be increased 10% to correspond to true value. In the case of Clifton, it resolved that the real property assessments of $64,679,150 be increased 10%, making a total valuation of the real property in said taxing district of $71,147,065, and that this sum be used by the Board as the total ratables of the real property of the district for the apportionments of county and state taxes, charges or distributions of moneys for 1949.
On March 9th the County Board approved an equalization table for the county for 1949, which set forth the assessed value of real property in each taxing district, as filed by the assessor, and the true value thereof, as found by the County Board, which, in the case of each of the appellant taxing districts, was an amount 10% higher than the assessor's valuation. On the same day the County Board, pursuant to R.S. 54:4-55, certified as correct the tax lists of the several municipalities
in the county for the year 1949. The tax lists and duplicates of the appellant taxing districts, as certified, contained the assessments of real property as originally filed by the assessors, but no additions thereto to effectuate the 10% increase therein as shown on the equalization table.
The County Board then prepared the table of aggregates required by R.S. 54:4-52, in which it set forth the total net valuations upon which the county taxes were apportioned for 1949, and in the case of Clifton this valuation was $76,979,275, although the statute requires that the table of aggregates be "copied from the duplicates of the several assessors * * *" and the net valuation would be $70,511,360 if the valuations were copied from the certified duplicate of the assessor of Clifton.
On April 4, 1949, the County Board fixed the tax rate for Clifton at 5.04 per hundred dollars. The County Board arrived at this rate by adding the amount to be raised in Clifton for county purposes, as apportioned on a $76,979,265 total net valuation, to the amounts to be raised for Clifton's municipal and school purposes, and dividing the sum by the total net valuations of $70,511,360 contained in the Clifton tax list and duplicate, as certified by the County Board. If the County Board had added the 10% increase to the assessments of real property in the tax lists and duplicates of the appellant taxing districts, or had directed the local assessor to do so, the total rate for Clifton would have been 4.62 instead of 5.04.
The first question is whether the appellants had a right of appeal to the Division of Tax Appeals without first taking an appeal to the County Board. The appellants rely upon R.S. 54:2-35 as giving a right of appeal directly to the Division of Tax Appeals. This section provides:
"Any action or determination of a county board of taxation may be appealed for review to the Division of Tax Appeals in the State Department of Taxation and Finance, under such rules and regulations as it may from time to time prescribe, and it may review such action and proceedings and give such judgment therein as it may think proper. Nothing herein contained shall apply to any appeal to the Division of Tax Appeals in the State ...