On certified appeal from the Appellate Division of the Superior Court.
For affirmance -- Justices Heher, Oliphant, Wachenfeld, Burling and Jacobs. For modification -- Chief Justice Vanderbilt and Justice Brennan. The opinion of the court was delivered by Heher, J. Vanderbilt, C.J. (dissenting). I am authorized to state that Mr. Justice Brennan joins in this opinion.
By this proceeding in lieu of certiorari under Article VI, Section V, paragraph 4 of the Constitution of 1947, implemented by Rule 3:81-1 et seq., now R.R. 4:88-1 et seq., the plaintiff landowners seek relief from what is asserted to be discrimination in the assessments for taxation laid upon their several pieces of property in the City of East Orange for the year 1952, whereby they have been subjected to a disproportionate share of the tax burden in violation of the principle of equality secured by the Fourteenth Amendment to the Federal Constitution and Article VIII, Section I, paragraph 1 of the State Constitution, and the tax statute itself.
The litigation comprises seven separate proceedings at law in lieu of certiorari to review 107 increases of land assessments in five municipalities of Essex County, viz., East Orange, Verona, Caldwell, Bloomfield and Belleville. There were other assessment revisions in these and still other municipalities which are not under direct judicial attack. The case now before us relates to the challenged East Orange assessments; but the complaints in all the proceedings are in substance the same.
On January 10, 1952 the local assessors in Essex County returned to the Essex County Board of Taxation their several assessment lists and duplicates in accordance with R.S. 54:4-35, as amended by L. 1943, c. 120; and the county board thereupon undertook the performance of its statutory function to examine, revise and correct the tax lists and duplicates, R.S. 54:4-46, 54:4-55, an integral part of the assessment process itself. Hackensack Water Company v. Division of Tax Appeals, 2 N.J. 157, 164 (1949); Middletown Tp. v. Ivins, 102 N.J.L. 36, 41 (Sup. Ct. 1925). On March 10 ensuing, the county board advised the various local assessors by telephone of prospective "changes in some assessments in some parts of the county"; and on March 20 the board ordered specific corrections and revisions of the tax lists, and directed the assessors to conform. The revised East Orange tax list concerns
62 parcels of real property and 13 owners of personal property. There were numerous revisions and corrections of assessments in the several municipalities of Essex County. At a meeting of the various local assessors and the county board held March 24 following, the "Local Assessors," it is averred in the complaint, protested the revision of the East Orange assessments. There were like complaints by other assessors: "Many assessors, including the Local Assessors," asserted that "in picking out properties here and there throughout the County" for increased assessments, the county board visited upon the particular landowners "an unfair share" of the tax burden, but the board's president gave assurances that although the board "had attempted to comply" with the statutory direction to revise, correct and equalize the assessments, for "lack of time, lack of information and particularly lack of funds (the County Freeholders having allotted only $25,000 to the County Tax Board for this purpose)," the board could not comply with the law and therefore "had undertaken a partial adjustment of some of the assessments," and the law afforded the means of correcting "errors" attending revision under "pressure."
It was also alleged that while the taxable parcels of real property in East Orange numbered 1650, the assessment revisions and corrections involved but 62; that the assessments on parcels of real property fronting Central Avenue were increased 100% as to land, in some cases 200%, and 33 1/3% as to building, but no comparable change was made as to other properties in the immediate area; that there were arbitrary increases in building assessments on this street, irrespective of age or physical condition of the structure, and "Special purpose buildings, designed for particular use of and occupied by owners, were increased in the same manner as buildings designed for general use"; that there was arbitrary discrimination between "residences" and apartment houses, and "changes" in the assessments on business properties were confined to "some, not all, property located within a particular area of Main Street"; and
that "changes" were made in only 13 of 20,000 personal property assessments in the city.
In particular, it is charged in the complaint that the assessment of the land at No. 630 Central Avenue, in the ownership of the plaintiff Doop Realty Co., has been tripled and the building assessment increased by one-third, and the land assessment "is now at the rate of about $1,120 per front foot, as compared with $420 per front foot, the assessment of the adjoining property"; that the land assessment of the plaintiff Savings Investment & Trust Company, at the southeast corner of Central Avenue and Harrison Street, has been doubled and the assessment on the building, which includes its banking house, increased by one-third, and so this plaintiff's land assessment "is at the rate of about $778 per Central Avenue front foot, as compared with about $152 per Central Avenue front foot, the assessment of the property across the street"; that the land assessment of the plaintiff Tishman Realty & Construction Co., Inc., at the northwest corner of Central Avenue and Halstead Street, has been tripled and its building assessment increased one-third, while the assessment of the property on the opposite northeast corner, valued "upon the same basis as plaintiff's property," stands unchanged, and now this plaintiff's land assessment "is at the rate of about $1,000 per Central Avenue front foot (including one corner influence), as compared with about $350 per Central Avenue front foot (including two corner influences) of the adjacent property," and the building assessment is also on "a higher basis than that of the adjacent property."
Referring to a report made to the county board by a committee for "equalization of assessments" organized in 1951 by the Association of Municipal Assessors of Essex County "at the request of and with the approval" of the board, the complaint says that an analysis of all real property sales in Essex County during the year 1950 reveals that "with the exception of industrial properties, real estate located in East Orange was assessed at a higher percentage of full and fair value than the county-wide average" -- i.e., the county-wide
average assessment on residence properties was 42.1% of "full and fair value," but the "percentage applicable to East Orange was 49.9%"; on apartment houses (six families and over) the county-wide assessment average was 59.4% of full and fair value, and the East Orange average 64.2%; on commercial properties the county-wide assessment average was 59.8%, and the East Orange average 65.9%; on industrial properties the county-wide assessment average was 66.1%, and the East Orange average 56.5%; and vacant land was assessed at a county-wide average of 59.7%, while the East Orange average was 67.7%. And, generally, it is charged that the 1952 assessments of plaintiffs' properties, "as changed" by the county board, "are in excess of the percentage of full and fair value assessed against other properties of the same class."
The complaint affirms that plaintiffs "have been unable to ascertain exactly what reasons, basis or method, if any, was adopted" by the county board "in singling out plaintiffs' properties for increase in assessments"; but it is charged that the action taken by the board "was not in compliance with any statute or statutory method," but rather "in direct violation thereof," and the increase of plaintiffs' assessments "was intentional and violative of the principle of practical uniformity in assessment," and "discriminatory, arbitrary and capricious."
There is a further allegation that the county board's "sole jurisdiction" to "direct an increase in assessment of specific properties in a specific taxing district exists only as a part of a complete revision, correction and equalization of assessed values of all the property in a taxing district in order to tax all property equally and at full value," and so the particular assessment increases constitute an excess of power. As just said, the constitutional principle of equality is also invoked; and it is urged in the complaint that "where it is impossible to secure both the standard of full value and the uniformity and equality required by law, the latter requirement must be adopted as the just and ultimate purpose of the law." It is also asserted that plaintiffs'
properties "are being assessed in excess of the same standard of value of similar properties in the taxing district of East Orange," in disregard of the mandate of the State Constitution.
Denying that there is a "prompt, effective, efficient or adequate" administrative review "except through these proceedings," the complaint declares that assuming an "available administrative review," "the interests of justice require" that the rule of prior recourse to the administrative forum be relaxed because (a) of the constitutional issues involved; (b) the county board, "the first administrative agency," would be called upon to review its own acts; (c) the great expense and delay and the "repetitious testimony" incident to the prosecution of 30 individual tax appeals; (d) "doubts" as to the jurisdiction of the administrative agencies, particularly its power "under applicable statutes to reduce the assessments on plaintiffs' properties upon the ground of discrimination," and the need for administrative expression of "opinions on questions of law which would clearly be subject to judicial review and which are ultimately questions for the Court."
The prayer of the complaint is that the order of the county board directing the "corrections" and "revisions" of the East Orange 1952 tax list "be vacated and set aside as to properties of plaintiffs, and judgment entered accordingly."
In the Law Division of the Superior Court, the action was sustained by Judge Joseph L. Smith as against a motion to dismiss for want of jurisdiction predicated on the failure to exhaust asserted available administrative remedies. 21 N.J. Super. 370 (1952). After answer filed denying the pleaded discrimination and violation of the principle of uniformity, Judge Hughes overruled defendant's motion for summary judgment on the pleadings for lack of jurisdiction of the subject matter and for failure to invoke available administrative remedies, if there be jurisdiction, and, moreover, since the county board is a state administrative agency, Warren v. Hudson County, 135 N.J.L. 178 (E. &
A. 1947), the board's action is appealable directly to the Appellate Division of the Superior Court under Rule 3:81-8, now R.R. 4:88-8. It was found that "the administrative remedy is at best uncertain, if it is not, indeed, nonexistent in the practical sense," and the rule providing for a direct appeal is not applicable. 24 N.J. Super. 252 (Law Div. 1952). The Appellate Division affirmed. 27 N.J. Super. 240 (1953); 28 N.J. Super. 110 (1953), after reargument. The holding there was that the county board is not empowered by statute "to remedy an unconstitutionally discriminatory assessment, representing true value or less than true value, by reducing it to the common level of assessments generally."
The case came here by certification at the instance of defendant.
After hearing argument on May 17, 1954, this court sua sponte ordered a reargument of the appeal on September 13 ensuing, and directed that meanwhile the parties to the several causes "complete their pleadings, take such depositions and make such inspections" as they should deem proper, and then proceed to trial of the issues in the Law Division of the Superior Court, either separately or together as the trial judge should think fit, to the end of a determination and argument of ensuing appeals "upon the merits, simultaneously with the reargument" of the original appeal, and there was a remand for that purpose.
Accordingly, the causes came on for hearing before Judge Colie on August 12 and 13 following; and there was judgment vacating "as to the plaintiffs and their properties," therein particularized, the order for the assessment increases made by the county board on March 20, 1952, and reducing the several assessments as thus certified "by the amounts of such increases," the "reductions, in each case, to be inclusive of any reductions" theretofore "granted by judgments" of the county board. 32 N.J. Super. 18 (Law Div. 1954).
Judge Colie found from the depositions, the admissions, and the pleadings that the county board "did not attempt to equalize and did not assess the properties at true value, but fixed the 'revised and corrected' assessments 'in the neighborhood of 50%,'" and this ratio of 50% of true value "was used in all the municipalities in which the properties affected by the order under review were located"; that the board "in certain municipalities selected fixed geographical areas within which the revisions or corrections were made," and "in others it selected specific properties for the same treatment," but "In no instance did the Board make a study of values other than in the areas to be 'revised and corrected,'" other than "those changed," the areas to which they "wanted to limit" their work, "the hot spots, the 100% locations," and then merely by appraising a "typical property," such as "would give a general range of values throughout the section," but which was not in fact "typical for that particular area," and the result was an arbitrary increase of assessments on particular properties, "disregarding all like properties," and an increase of "all assessments within a limited area, disregarding all properties outside that area" within the taxing district, and in the end a "disproportionate tax burden." It was also held that the standard of "true value" was still obligatory by force of the statute. But the assessments made by the local assessors were not disturbed; the increases ordered by the county board were set aside.
We concur in the finding of discriminatory taxation violative of constitutional principle. The proofs show that all lands throughout the affected municipalities were assessed by the local assessors according to a common ratio of value, making for equality and uniformity within the taxing district; and increases in selected areas confined by arbitrarily fixed geographical boundaries of necessity worked discrimination in respect of comparable properties immediately beyond the unreasoned and artificial border line. Indeed, this resulted in varying standards and consequent discrimination as between properties of like kind and character
in the immediate vicinity, on the same and the opposite side of streets bounding the area of action. It was a course of procedure at war with the basic principle of equality; and there ensued glaring disparities in the assessments that are now sought to be excused by the plea that, for lack of funds, assessment uniformity has become a piece-meal process over a period of years. Members of the county board conceded on the witness stand that, in directing the challenged increases, the board was not engaged in the exercise of the equalization function. "This was not an equalization program at all," said one, and the others agreed. And the board's revisions were confined to commercial and industrial properties.
Thus, the assessment increases decreed by the county board would nullify the pattern of equality set by the local assessors through the medium of a uniform assessment ratio, and lay an undue tax burden upon the plaintiff landowners -- the certain consequence of their admeasurement by arbitrary percentages and formulae.
We proceed to the jurisdictional and policy questions raised on the original appeal.
There is pleaded here a common remediable grievance arising from a discriminatory tax visitation now established by the proofs, unequal in its incidence and oppressive in its burden; and in the treatment of the issues raised we are to be mindful that this is a judicial proceeding to redress a basic inequality in the apportionment of the charge, violative of constitutional principle. We are not concerned here with failures or omissions in the administrative assessment process not related to inequality of treatment.
By an amendment to the 1844 State Constitution adopted in 1875, Article IV, Section VII, paragraph 12, it was directed that property "be assessed for taxes under general laws, and by uniform rules, according to its true value."
Accordingly, the implementing statutes embodied the standard of true value. L. 1906, c. 120, R.S. 54:3-13; L. 1918, c. 236, R.S. 54:4-1, 12, as later amended, 23, also amended; L. 1934, c. 191, R.S. 54:3-17; L. 1934, c. 191, R.S. 54:3-18; L. 1918, c. 236, R.S. 54:4-36, 46, 47, 48.
But the 1947 Constitution, Article VIII, Section I, paragraph 1, provides that property shall be "assessed for taxation under general laws and by uniform rules," and "All real property assessed and taxed locally or by the State for allotment and payment to taxing districts shall be assessed according to the same standard of value." The cited enforcement statutes remain unaltered in terms. Yet the dominant principle of the new constitutional mandate is equality of treatment and burden. And this was of the essence and spirit of the old Constitution as well. One of the implementing statutory provisions cited supra, R.S. 54:3-13, enjoined the county board to "secure the taxation of all property * * * at its true value, in order that all (taxable) property * * * shall bear its full, equal and just share of taxes." The standard of value is but a means of achieving uniformity and equality. Such is the preeminent consideration in the distribution of the tax burden.
The common assessment ratio was given recognition under the old constitutional and statutory standard of "true value." Stratton v. Collins, 43 N.J.L. 562 (Sup. Ct. 1881); Appleget v. Pownell, 49 N.J.L. 169 (Sup. Ct. 1886); State Board of Assessors v. Central R. Co., 48 N.J.L. 146 (E. & A. 1886), Dixon, J. And see the late Justice Black's Taxation in New Jersey (5 th ed. 1940), section 145.
And were the constitutional provision of a radically different tenor and import, the equal protection clause of the Fourteenth Amendment would prevail, for the right of equal treatment thereby secured "protects the individual from state action which selects him out for discriminatory treatment by subjecting him to taxes not imposed on others of the same class"; he may not complain "if equality is achieved by increasing the same taxes of other members of
the class to the level of his own"; the constitutional requirement "is not satisfied if a State does not itself remove the discrimination, but imposes on him against whom the discrimination has been directed the burden of seeking an upward revision of the taxes of other members of the class." Hillsborough Township v. Cromwell, 326 U.S. 620, 66 S. Ct. 445, 90 L. Ed. 358 (1946). This latter was found to be the case in New Jersey under Royal Mfg. Co. v. Board of Equalization of Taxes, 76 N.J.L. 402 (Sup. Ct. 1908), affirmed 78 N.J.L. 337 (E. & A. 1909), holding that the county boards are obliged to secure taxation of all property at its true value, and a taxpayer so assessed who is the victim of discriminatory taxation may have equalization, not by reduction of his own assessment, but by proceedings to raise the assessments of other members of the class, and so, said Mr. Justice Douglas in the Hillsborough case, "it is plain that the state remedy is not adequate to protect respondent's rights under the federal Constitution."
Earlier, Chief Justice Taft, noting a conflict of view as to what should be done where one or a few of a class of taxpayers are assessed at the full true value of their property, in accord with a constitutional or statutory requirement, and the rest of the class are intentionally assessed at a much lower percentage, in violation of the law, declared:
"This court holds that the right of the taxpayer whose property alone is taxed at 100 per cent of its true value is to have his assessment reduced to the percentage of that value at which others are taxed, even though this is a departure from the requirements of statute. The conclusion is based on the principle that where it is impossible to secure both the standards of the true value, and the uniformity and equality required by law, the latter requirement is to be preferred as the just and ultimate purpose of the law." Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 43 S. Ct. 190, 67 L. Ed. 340 (1923).
Vide Cumberland Coal Co. v. Board of Revision of Tax Assessments, 284 U.S. 23, 52 S. Ct. 48, 76 L. Ed. 146 (1931); Iowa-Des Moines National Bank v. Bennett, 284 U.S. ...