On appeal from the Superior Court, Law Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld and Burling. For reversal -- None. The opinion of the court was delivered by Wachenfeld, J. Burling, J. (concurring). Mr. Justice Heher joins in this memorandum. Heher and Burling, JJ., concurring in result.
[9 NJ Page 33] A summary judgment was entered at the trial level in favor of the plaintiff against the Township of North Bergen in a proceeding brought in lieu of a prerogative writ of mandamus, its purpose being to compel the township to permit the taxpayer to inspect certain records in the office of the tax assessors.
The plaintiff taxpayer appealed to the Hudson County Tax Board for a reduction of his assessment, alleging it was in excess of true value and discriminatory. To assist in establishing this allegation, he sought an inspection of certain cards in possession of the board of assessors of North Bergen and made a written demand therefor. Permission being refused, he brought this action to compel the production of the cards and moved for a summary judgment pursuant to Rule 3:81-4.
The matter was heard on affidavits and counter-affidavits on behalf of both parties. No testimony was taken but the cause was argued before the court below, resulting in the granting of the plaintiff's motion for summary judgment. This appeal is from the judgment so entered.
The litigation involves cards prepared by a realty appraisal company on a re-survey of all the property of the township, made pursuant to a contract dated March 24, 1950, for which the township paid the sum of $50,000. The information so acquired admittedly was considered by the assessors in arriving at the assessments for the year 1951.
This is the second step in this litigation, which first involved the tax year of 1950, when the township increased, by varying sums and in substantial amounts, the assessments on certain properties of the plaintiff, and he appealed. He was joined by other owners of industrial property similarly affected. By consent, it was agreed this case was to be controlling, the resulting judgment to be applicable to all other appealing taxpayers in the same class. There, as here, a request was made to examine the card records in the hands of the assessors; it was refused and litigation ensued, the court holding the documents were public records and subject to inspection. An examination was permitted but the result, it is alleged, was nugatory as the cards at that time had no information of importance on them. The township appealed and the matter was certified here. We held the question moot since the examination had been given, and the appeal
was dismissed. Tagliabue v. Tp. of North Bergen, 6 N.J. 495 (1951).
Prior to the assessing date for 1951, an entire survey, including residential properties as well as industrial, had been completed and, as noted above, demand was again made for an inspection; when refused, suit was instituted in lieu of prerogative writ, resulting in a judgment in favor of the taxpayer, the court holding the cards were public records and properly subject to his examination. The execution of the judgment so entered, however, was stayed in order to permit the township to file this appeal, which was certified here by us.
It is first asserted the cards sought to be inspected are not public records within the meaning of the statute or the governing laws. R.S. 47:3-1 provides in part as follows:
"In construing the provisions of this section and other laws appertaining thereto the words 'public records' shall, unless a contrary intention clearly appears, mean any written or printed book, document or paper, map or plan, which is the property of the state or of any county or municipality or part thereof, and in or on which any entry has been made or is required to be made by law, or which any officer or employee of the state or of a county or municipality has received or is required to receive for filing or recording."
This paragraph must be construed in conjunction with the many related, kindred provisions of the statute in respect to "public records." We discern no mandate embracing the information contained in the controversial documents within the statutory language of entries "made or * * * required to be made by law." The cards were the result of a contract between the township and a third party as an extracurricular endeavor to facilitate the new tax program contemplated by the public body. Admittedly they were paid for by the taxpayers' money but the mere paying by the township does not of itself constitute them public ...