Conford, Davidson and Tomasulo. The opinion of the court was delivered by Tomasulo, J.s.c. (temporarily assigned).
[41 NJSuper Page 466] The taxpayer-appellant appeals from judgments of the Division of Tax Appeals dismissing appeals filed with it from judgments of the Hudson County Board of Taxation, dismissing appeals [41 NJSuper Page 467] taken with respect to assessments of real property owned by appellant, situated in Jersey City, for the tax years of 1950 to 1954, inclusive. These appeals were filed first with the county board for each of the years in question, on or prior to August 15, and with the State Division of Tax Appeals on or prior to December 15. The appeals which are the subject of the instant review were set down for hearing by the Division from time to time and were adjourned at the request of the taxpayer from 9 to 15 times, in most instances the request for adjournment being made on or the day preceding the scheduled date of hearing. The appeals were dismissed for lack of prosecution by the Division on June 10, 1955. Nevertheless, on August 30, 1955, on application of the taxpayer, the Division vacated its judgments of dismissal and the cases were again listed for trial December 20, 1955. On that day counsel for the taxpayer called for the production, pursuant to subpoena previously served by the City of Jersey City, of certain records involving assessments made by the city on other property, the purpose being to establish discrimination against the taxpayer by the alleged assessments of its property at a lower percentage of true value than that at which other property in the city was assessed. The city refused to comply with the subpoena on the ground that the matter of discriminatory assessment was not in issue before the Division since the petitions of appeal complained only of the assessment of the property above its true value. Thereupon the taxpayer moved for leave to amend its petitions so as to charge discrimination. The hearing panel of the Division refused the request on the ground that this amounted to a pleading of a new cause of action beyond the time limited by the statute for filing of petitions of appeal, and it directed the taxpayer to proceed with its evidence. Thereupon the taxpayer stated that it had no evidence in support of its pending complaint of assessment above true value and that the gravamen of its complaint was discrimination. The Division consequently dismissed the appeals again for lack of prosecution.
The taxpayer submits three main contentions on the present appeal:
1. Its petitions of appeal as originally filed were broad enough to admit proof of and to justify administrative relief based upon a discriminatory assessment.
2. It was entitled to an amendment of its petitions to plead discrimination.
3. In the alternative, the Division should have granted the requested amendment, as a matter of due process, because there was no legally assured right of review before the tax boards for a discriminatory assessment prior to the decision of the Supreme Court in Gibraltar Corrugated Paper Co. v. Township of North Bergen , 20 N.J. 213, which was rendered December 5, 1955, only 15 days prior to the final listing of the cases before the Division; further, that there was no certain judicial remedy because of the limitation imposed by R.R. 4:88-14, which required an exhaustion of the administrative remedy prior to judicial action.
These points will be considered in the order stated.
1. As to the scope of the original petitions of appeal.
Appellant's argument under this heading proceeds on the thesis that since it was held in the Gibraltar case, supra , that the county and state tax boards have jurisdiction by ordinary appeal to grant relief from a discriminatory assessment, whether or not the property is assessed below true value, and since R.S. 54:2-39, providing for appeal to the Division of Tax Appeals by any taxpayer who is dissatisfied with the judgment of the county board upon his appeal, recites that petitions of appeal to the Division shall not fix any sum as to the value of the property in question but shall contain a general prayer that the assessment be increased or decreased according to the true value of the property, it must necessarily follow that a petition of appeal requesting a reduction to the true value of the property is a proper basis for a judgment granting relief from discrimination.
The difficulty with the argument thus posed is that it is not accurate to say that the Legislature contemplated that
every conceivable appeal to the Division within its statutory jurisdiction should merely pray for an increase or decrease of the property in question to its true value. There are many kinds of jurisdiction vested in the county and state tax boards to determine matters having nothing to do with the true value of property, or where a judgment for true value is not the primary relief sought. For example, a property owner may appeal to the Division, after appeal to the county board, if the property is assessed for taxation notwithstanding a valid statutory exemption, R.S. 54:3-13, 54:4-3 et seq.; or where a property is added to the assessment list as newly constructed property and the contention of the owner is that the improvement was not constructed on the assessing date, N.J.S.A. 54:4-63.11. There are many other examples of such situations. Clearly, in such cases, under elementary principles of sound pleading, even before administrative agencies, it would be necessary for the appellant to state his particular grievance, and jurisdiction would not vest in either the county or state tax board to grant the relief really intended, upon the basis of a meaningless and irrelevant formal prayer that the assessment of the property be decreased to its true value. The only sensible construction of R.S. 54:2-39 is that when the relief actually being sought is a reduction of an assessment to true value, the petition shall be in the form specified by R.S. 54:2-39, but that that requirement is not applicable where the relief actually sought is something else, for example, a claim for exemption, or, as in the present case, a claim of discrimination and a request that the property be reduced to the common level of other property in the taxing district.
These views are fortified by the language of N.J.S.A. 54:3-21, the section providing for appeal to the county board, upon the basis of which the Supreme Court postulated the existence of jurisdiction in the situation involving discrimination in the Gibraltar case. That section states that in the petition to the county board the taxpayer shall set forth "the cause of ...