Goldmann, Freund and Conford. The opinion of the court was delivered by Conford, J.A.D.
[47 NJSuper Page 266] This is a motion to dismiss an original petition filed in this Division, pursuant to R.R. 4:88-10,
seeking a declaration as to the validity of a supposed administrative rule or regulation of the Director of Taxation of the State of New Jersey "in prescribing or promulgating the form of the table of aggregates for the several county boards of taxation pursuant to N.J.S.A. 54:4-52." The motion is primarily based upon the contention that no such rule or regulation exists, within the contemplation of the cited rule of court.
Plaintiff concedes there is no written administrative rule of the purport indicated, but contends that the substance of a rule does exist, reflected by the form for tables of aggregates (sometimes referred to as county abstracts of ratables) prescribed by defendant for use by county boards of taxation in preparation of tables of aggregates pursuant to the cited statute. Plaintiff's grievance is that in computing the net assessed valuations for the year 1957 upon the basis of which each municipality's county taxes are apportioned for that year the assessed valuations of tangible personal property have been included by the Passaic County Board of Taxation under the alleged administrative rule here impugned. As these valuations, unlike real property valuations, are not equalized, nor apparently required by statute to be, it is plaintiff's position that the resulting apportionment of county taxes "is contrary to law and is in violation of the constitutional requirement for the equality of treatment for all the taxing districts in the County" (of Passaic) and particularly the City of Passaic and its taxpayers. A similar substantive complaint for the tax year 1956 was presented by appeal before the State Division of Tax Appeals and pends there, undetermined.
R.R. 4:88-10 reads in part as follows:
"Review of the validity of any administrative rule promulgated by any state administrative agency shall be by petition for a declaratory judgment addressed to the Appellate Division. The petition shall set forth the rule being attacked , together with facts pertaining to its adoption, the claims of the petitioner, together with supporting facts and such other matters as may be material. Upon the filing of the petition, copies shall be served upon the agency and all other parties, and affidavit or acknowledgment of service shall
be filed with the Appellate Division. Within 30 days after service of the petition, the agency shall transmit to the Appellate Division its answer thereto, together with the original or certified copy of the record of the proceedings resulting in the promulgation of the rule being reviewed; * * *." (Emphasis supplied).
It would seem that the rule of court contemplates, generally, a formal rule promulgated under circumstances indicating an intention to adopt a piece of administrative legislation of specifically identifiable content. Cf. Bailey v. Council of the Division of Planning , 22 N.J. 366, 373 (1956); Carls v. Civil Service Commission , 17 N.J. 215, 219, 220 (1955). No such rule is set forth in the petition herein, as required by the rule of court. But it is unnecessary to decide on this motion whether an administrative rule, within the intent of the rule of court, must necessarily be found in a specifically formulated written expression styled as a rule or regulation. We have concluded on the proofs submitted on this motion that the apportionment of county taxes by the Passaic County Board of Taxation on the basis of net valuations inclusive of tangible personal property ratables is not the result of any rule or direction of the State Director of the Division of Taxation but of a long standing construction to that effect of the applicable statutes by county boards of taxation, generally.
The sequence of numbered items specified for statement in the tables of aggregates pursuant to N.J.S.A. 54:4-52, particularly items (5) to (12) inclusive, leads to a natural deduction that the "net valuation on which county, State and State school taxes are apportioned" (item 12) shall include "the value of the personal property assessed" (item 5). While we are not called upon in the decision of this motion to decide the matter of statutory construction, or the constitutionality of the statute, if so construed, we cannot avoid noting the obviousness of the construction to the effect stated, insofar as N.J.S.A. 54:4-52 is concerned, in indicating why we believe that the last paragraph of the section, in permitting the defendant to make "changes" in the items stated or to add "other matters," and in directing that he
prescribe "the forms" for the tables for use by the county boards, could not have intended that he have discretion to determine whether or not personal property valuations should be included for purposes of apportioning county taxes. That important policy determination was reserved by the Legislature for itself, and its content is to be resolved primarily upon the basis of N.J.S.A. 54:4-48, 49, where the subject of apportionment of county taxes is dealt with directly, N.J.S.A. 54:4-52 being, perhaps, an indirect aid to construction of the legislative intent as in pari materia.
The affidavit of the defendant is to the effect, unequivocally, that neither he nor any predecessor, so far as the records of his office disclose, ever issued any "rule, order, regulation or instruction, written or unwritten" to any county board of taxation requiring that assessed valuations of personal property be included for purposes of apportionment of county taxes. All that the Director of the Division of Taxation has ever done has been to prepare a model form of county table of aggregates for the guidance of the several county tax boards, as directed by the statute. The form has never been intended nor purported to have substantive effect insofar as the method of apportionment of county taxes is concerned. Copies of the annual tables of aggregates of each county board of taxation, including that of Passaic County, from 1931 forward, are annexed to the affidavit of the defendant, and these indicate that personal property valuations have uniformly been included in the net aggregates for apportionment of county taxes. This consistent course of administrative action by the county boards is stated in the affidavit to have been taken "independently of any direction or rule of the State Division of Taxation or its predecessor agency, the State Tax Department." Plaintiff ...