Clapp, Goldmann and Ewart. The opinion of the court was delivered by Ewart, J.A.D.
The Township of Weehawken appeals from an order entered August 4, 1953 by the Division of Tax Appeals of the Department of the Treasury dismissing the appeal of the township from an assessment of second-class railroad property for the year 1953 as made by the Director of the Division of Tax Appeals.
The facts of this controversy are not in dispute. May 14, 1953 the township caused to be served upon the respondent railroad copy of the complaint, appeal, and notice of application for hearing by the township, which papers were afterwards filed with the Division of Tax Appeals on May 18, 1953 (the third Monday in May).
The Division of Tax Appeals met at the State House in Trenton on May 18, 1953 (the third Monday in May) pursuant to the requirements of the statute, N.J.S.A. 54:29 A -33, for the purpose of fixing a time and place for the hearing of any complaint as to the validity or amount of any assessment or reassessment of railroad property. The minutes of that meeting note the appearance of James Rosen, Esquire, by Edward T. Smarak, attorney for the township, and of O'Mara, Schumann, Davis & Lynch, by Joseph A. Davis, Esquire, as attorneys for the respondent railroad. The only action taken at the meeting, as shown by the minutes, was that the president stated that the hearing of the appeals would begin at the State House in Trenton on Tuesday, September 15, and that counsel would receive ample notice as to which cases would be first on the calendar.
On June 10, 1953 the respondent railroad filed with the said Division notice of a motion to be made on September
15, 1953, or upon such other date as the Division might fix, for an order dismissing the complaint and appeal of the township on the ground that service of a copy of the complaint and appeal was not made upon the taxpayer until May 14, 1953, which was not in compliance with the requirements of the statute, N.J.S.A. 54:29 A -32.
July 24, 1953 Commissioners DeVoe, Hull and Wiener, the panel designated by President Rogers to begin the hearing of appeals from the assessment of railroad property on September 15, met at Trenton for a pretrial conference with representatives of the railroads, and the municipalities and the State, to discuss the order of listing appeals, etc. Attorneys for both the said township and the respondent railroad appeared. The minutes of the meeting note the filing of the notice of motion for dismissal of the appeal by the said township; that Joseph A. Davis, Esquire, attorney for the railroad, moved for dismissal on the ground that the railroad had not been served in accordance with the statutory requirements; and that James Rosen, Esquire, attorney for the township, was heard in opposition to the motion. The minutes further show the matter was referred to Commissioner Hull for consideration and report.
The next meeting of the Division was held August 4, 1953 at Trenton, and the minutes show a report submitted by Commissioner Hull recommending that the motion for dismissal of the township appeal be granted and the appeal dismissed. The report of Commissioner Hull is set forth at length in the appendix and states the factual situation and his conclusions with respect to the matter, and an order was thereupon entered by the Division on August 4, 1953 dismissing the complaint and appeal by the said township.
L. 1941, c. 291, as amended (N.J.S.A. 54:29 A -1 et seq.) sets up a comprehensive scheme for the assessment and taxation of railroads operating in this State. The Director of the Division of Taxation in the State Department of Taxation and Finance (also known as the Commissioner) is directed to determine the true value, on or before November 1 of each year, but as of the preceding January 1,
of all property in this State used for railroad purposes, dividing the same into three classes, and the statute directs the Director or Commissioner to deliver to each taxpayer not later than December 10 of each year a detailed statement of such valuations, showing classes of property, etc.; to certify to the assessors of each taxing district wherein second-class railroad property is found, on or before December 15 of each year, the value fixed on such second-class railroad property in the particular taxing district; and to certify to the county board of taxation, on or before March 15 following, the value of such second-class railroad property found in the various taxing districts within the County. N.J.S.A. 54:29 A -1, 17, 18.
The statute then sets forth the procedure for appeals from the valuations fixed by the Director or Commissioner. The authorities of the taxing district desiring to contest the validity or amount of any assessment of second-class railroad properety made by the Director or Commissioner may, on or before the third Monday of May following the assessment (May 18, 1953 in our case), file a written complaint with the State Board of Tax Appeals specifying the grounds of complaint and ...