void certain assessments on intangible personal property entered by the Collector of Hillsborough Township, Somerset County, New Jersey. The jurisdiction of this court was invoked upon the ground that the taxing authorities had consistently, systematically and intentionally singled out the taxpayer for discriminatory treatment in the assessment of taxes for which she was without remedy under the laws and decisions of New Jersey. It was held that the District Court was justified in retaining jurisdiction of the cause since there was so much uncertainty surrounding the adequacy of the state remedy to protect the taxpayer's federal right even though it ultimately proceeded to decide the case on the merits by recourse to local law grounds without reaching the constitutional issues. But, in that case, the taxpayer acted promptly to raise the constitutional question. The resolutions of the County Board attempting to make assessments were entered June 26, 1941 and suit was commenced in the District Court in July 1941. If the plaintiff in this case felt that it could not obtain the desired relief in the state courts then it should have instituted its suit here immediately. The order denying the motion to dismiss in the Hillsborough case was made in this court in August 1942, so that the plaintiff need have had no doubt as to whether this court would have then entertained such a suit. Instead, it pursued its appeals from the assessments in the state courts but it never even attempted to raise the question of discrimination until June 1949 when it unsuccessfully attempted to amend its petition of appeal regarding the 1947 assessment.
Furthermore, I am not persuaded by plaintiff's assertion that a taxpayer claiming discrimination cannot obtain relief in the courts of New Jersey by having his assessments reduced because of the statutes fixing true value as the basis of assessment, and that, in effect, this federal right enunciated in Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 43 S. Ct. 190, 67 L. Ed. 340, and reiterated in the Hillsborough case, will not be recognized in New Jersey and that New Jersey provides no mechanism by which a taxpayer may obtain equalization by reduction of his own assessment. Admittedly, the United States Supreme Court was constrained in the Hillsborough case by the holding in 1909 in Royal Mfg. Co. v. Board of Equalization, supra, which was followed in an opinion rendered for the former Supreme Court of New Jersey, Lehigh Valley R. Co. v. State Board, 174 A. 359, 12 N.J.Misc. 673, to state that there was such uncertainty concerning the New Jersey remedy as to make it speculative whether the State affords full protection to the federal rights. However, on three separate occasions since the earlier state decisions Judge Bigelow, speaking for the Appellate Division of the Superior Court, has indicated that New Jersey recognizes the federal rule and that the state statutes requiring true value are not barriers to a reduction of an assessment.
In Jersey City v. Division of Tax Appeals, 1949, 5 N.J.Super. 375, 384, 69 A.2d 331, 336, he stated: 'It may be that the average assessment in Jersey City is only a fraction of true value; that the undervaluation is intentional and systematic, and that to raise to true value the assessments on the respondents' lands would constitute an unconstitutional discrimination against respondents. Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 43 S. Ct. 190, 67 L. Ed. 340 (1923); Hillsborough Township, Somerset County, N.J. v. Cromwell, 326 U.S. 620, 66 S. Ct. 445, 90 L. Ed. 358 (1946). If so, respondents will have the opportunity to prove the fact before one or other of the tax boards. Central R.R. Co. of New Jersey v. State Tax Dept. (Thayer-Martin),
112 N.J.L. 5, 169 A. 489 (E. & A. 1922).' (Italics added.)
In Hackensack Water Co. v. Township of North Bergen, supra,
although the court sustained the refusal by the Division of Tax Appeals to permit an amendment to the petition of appeal to include the ground of discrimination, Judge Bigelow made this pointed comment: 'The appellant relies on Hillsborough Township v. Cromwell, 326 U.S. 620, 66 S. Ct. 445, 90 L. Ed. 358 (1946), where the United States Supreme Court held that the Fourteenth Amendment is not satisfied by a rule which permits the taxpayer who is discriminated against, to proceed against other individuals for the purpose of having their taxes increased; that his right to equal treatment requires that his assessment be reduced to the same percentage of true value that is imposed on others. See also Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 43 S. Ct. 190, 67 L. Ed. 340 (1923). In Jersey City v. Division of Tax Appeals, 5 N.J.Super. 375, 69 A.2d 331 (App. Div. 1949), we said that a taxpayer may raise the question of discrimination and have relief before the County tax board or the Division of Tax Appeals.' 141, 73 A.2d at page 598.)
Finally, in Delaware, Lackawanna & Western Railroad Co. v. City of Hoboken, 1951, 16 N.J.Super. 543, 544-555, 85 A.2d 200, 205, he made this most apposite comment: 'A discrimination between taxpayers, so that one is assessed upon the full value of his property and others are assessed upon only a fraction of full value, violates the Fourteenth Amendment to the Federal Constitution. * * * It was formerly considered that the only remedy of the taxpayer who was the victim of the discrimination was a proceeding to increase the assessments of other taxpayers, but now we recognize that such a remedy is not enough and that he may rightfully demand that his own assessment be reduced to the common level. The constitutional mandate to assess at full value must yield to the even more fundamental requirement of relative equality. Greene v. Louisville & I.R. Co., 244 U.S. 499, 37 S. Ct. 673, 61 L. Ed. 1280 (1917); Sioux City of Bridge Co. v. Dakota County, 260 U.S. 441, 43 S. Ct. 190, 67 L. Ed. 340 (1923); Hillsborough Township v. Cromwell, 326 U.S. 620, 66 S. Ct. 445, 90 L. Ed. 358 (1946).' (Italics added.)
Plaintiff has sought to dilute the effect of these decisions by arguing that they are mere dicta of a court, not the highest in New Jersey, and that they give mere 'lip service' to the federal decisions since no court has actually given any relief against discrimination. I am not impressed with this argument for I am persuaded that the law of New Jersey is as stated by Judge Bigelow.
Where there is available an efficient remedy in the state tax agencies and courts whereby a taxpayer can contest the imposition of a discriminatory tax, this court is without jurisdiction to entertain a suit of this type, however, it may be denominated. Great lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 63 S. Ct. 1070, 87 L. Ed. 1407. The considerations of policy which require that the validity of state taxation be immunized from assault in the federal courts under such circumstances were discussed by Chief Justice Stone in the Great Lakes Co. v. Huffman, supra, and are of equal application here. In Matthews v. Rogers, 284 U.S. 521, 525-526, 52 S. Ct. 217, 219-220, 76 L. Ed. 447, the Supreme Court said: 'The scrupulous regard for the rightful independence of state governments which should at all times actuate the federal courts, and a proper reluctance to interfere by injunction with their fiscal operations, require that such relief should be denied in every case where the asserted federal right may be preserved without it. Whenever the question has been presented, this Court has uniformly held that the mere illegality or unconstitutionality of a state or municipal tax is not in itself a ground for equitable relief in the courts of the United States. If the remedy at law is plain, adequate, and complete, the aggrieved party is left to that remedy in the state courts, from which the cause may be brought to this court for review if any federal question be involved'.
These considerations which have led federal courts of equity to refuse to enjoin the collection of state taxes or to withhold the use of the declaratory judgment procedure, require a like restraint in a suit seeking the recovery of municipally collected taxes. Cf. Great Lakes Co. v. Huffman, supra, 319 U.S.at page 299, 63 S. Ct. 1070, 87 L. Ed. 1407. See also, Alabama Public Service Commission v. Southern Railway Co., 341 U.S. 341, 72 S. Ct. 792, 95 L. Ed. 1002.
The jurisdiction of the federal courts cannot now be invoked merely because the litigation in the state courts on the assessment for the years 1940 to 1947 have been concluded without any determination of the question of discrimination. The plaintiff made no effectual effort to raise this issue in the state proceedings during these years. It did not question the adequacy of the state remedy during these years. It cannot litigate the issue now. As for the year 1948 the plaintiff has an adequate remedy since it has raised the question of discrimination in its petition of appeal on its assessment before the Division of Tax Appeals.
Therefore, I conclude that the defendants' motion for judgment on the pleadings should be granted and the complaint dismissed.
An order in conformity herewith should be settled.