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Fifth Street Pier Corp. v. City of Hoboken

Decided: April 2, 1956.

FIFTH STREET PIER CORPORATION, PLAINTIFF-APPELLANT AND AS RESPONDENT-APPELLANT,
v.
CITY OF HOBOKEN, A MUNICIPAL CORPORATION, RESPONDENT-RESPONDENT AND AS PLAINTIFF-RESPONDENT, AND DIVISION OF TAX APPEALS, DEPARTMENT OF THE TREASURY, RESPONDENT



Clapp, Jayne and Francis. The opinion of the court was delivered by Clapp, S.j.a.d.

Clapp

[40 NJSuper Page 13] These consolidated appeals bring before the court 26 judgments of the Division of Tax Appeals. The judgments deal with assessments of the City of Hoboken levied for the years 1948 through 1953 on properties known as the Fifth Street Pier and the Sixth Street Pier, which are owned by the appellant, Fifth Street Pier Corporation, a subsidiary of the Holland-America Line.

Appellant's first point is that the Division so conducted the proceedings in these cases that there was a denial of due process. This calls for a study of the procedure prescribed by N.J.S.A. 54:2-18:

"The Division of Tax Appeals in the State Department of Taxation and Finance may, as occasion shall require, by order, refer to two or more of its members, at least one of whom shall be an attorney-at-law, the duty of taking testimony in a matter pending before it, and to report on such matter and the testimony so taken, to the division, but no determination shall be made therein except by the division. Said reports shall be in writing and signed by the members, and shall include, in substance, the facts and particulars of the testimony so taken, which written reports shall be public records and open to the inspection of the public. Stenographic notes shall be made of all testimony so taken, but the members of the board [sic] shall be qualified to make their determination after receiving the report of the members hearing the testimony, and without the necessity that the stenographic notes so taken shall have been reduced to writing; provided, however , that the testimony shall be reduced to writing at the request of any member of the division required to make a determination in any such matter."

On December 9, 1952, pursuant to this statute, the Division referred the cases involving the years 1948 through 1951 to two of its members, who took testimony as to the same between January and October 1953 for a total of 19 days. The testimony covers at least 2,532 typewritten pages; only two copies were written up. At some point in the proceedings the parties by stipulation left it to this panel to make determinations also as to the years 1952 and 1953. Briefs were submitted to the panel by June 1954; and a very comprehensive report of 145 printed pages had been completed by March 15, 1955, and copies were then transmitted to the other members of the Division. On April 7, 1955 the panel report was put on file, and on the same day six members of the Division (including the two who comprised the panel) unanimously adopted it as the action of the Division. Judgments were signed April 29, 1955, and the report was thereafter "furnished to the appellant." N.J.S.A. 54:2-16.

The argument that this procedure is unconstitutional rests chiefly on Mazza v. Cavicchia , 15 N.J. 498 (1954). However,

there are three major distinctions between the practice of the Division of Alcoholic Beverage Control held unconstitutional there and that provided for in N.J.S.A. 54:2-18. In the first place, the report made by the hearer under the alcoholic beverage control practice was a secret document, In re Erie Railroad System , 19 N.J. 110, 125 (1955); and an appellant could never know whether it dealt with matters outside the record. On the other hand, the panel report called for by N.J.S.A. 54:2-18 is required by that statute to be made public; error and impropriety therein, if there be any, must be exposed. This is not the case in which to consider what remedies are available to a litigant in the event of such exposures. Nor need we stop to decide whether N.J.S.A. 54:2-18 requires the report to be made public promptly after it is prepared (that is, in this case at least by March 15, 1955).

Second, under the practice condemned by Mazza , the hearer was a subordinate; whereas in this case the two hearers were members of the Division. In re Erie Railroad System, supra. It may be said that members of the Division would be more likely to bow, without adequate study, to a report from two colleagues, than they would to the report of a subordinate. On the other hand, offsetting that, is the fact that those comprising the panel, by virtue of their very appointments to the Division, are entrusted by law with a fraction of the decisional power.

Third, the practice of the Division of Alcoholic Beverage Control was aggravated by the concentration, in the agency, of the functions of prosecutor as well as judge, Mazza , 15 N.J. , at page 523; whereas the Division of Tax Appeals is entirely impartial in its function.

Brushing these distinctions aside, appellant seems to rest its argument on two other factors. In the first place, appellant's argument depends on the fact that the panel report -- which "obviously played a" leading "part in the decision in this case" -- was neither "known to the parties" prior to its adoption, nor "subject to being controverted" before the entire Division prior thereto; indeed that no opportunity

was afforded the litigants to "supplement, explain, and" refute it in any way. See Mazza , 15 N.J. , at pages 515, 516. The practice in this regard is the same as that condemned in Mazza.

In the second place, appellant's argument depends on the provisions of the statute making it unnecessary to transcribe the testimony and therefore leaving it to the Division whether or not to read it. In this respect the contention goes beyond Mazza; for there the Director had read the transcript. Respondents in an attempt to meet this contention point out that in each of the 26 judgments appealed from, there appears a recital, in substance, as follows:

"After hearing the evidence and the arguments of the attorneys for appellant and respondent, and after considering the same, it is hereby ...


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