For affirmance -- Chief Justice Weintraub, and Justices Heher, Burling, Jacobs and Proctor. For reversal -- None. The opinion of the court was delivered by Jacobs, J.
These are four consolidated appeals from judgments of the Law Division dismissing, without prejudice, the complaints filed by the plaintiff railroad companies. Appeals were taken to the Appellate Division and we certified on our own motion.
In March 1953 the Director, Division of Taxation in the Department of the Treasury, certified his assessments
against the plaintiff railroads' properties in the defendant municipalities. The railroads, contending that their properties had been assessed in excess of true value and that their Class II properties had been assessed above the common standards or levels of valuations used by the municipalities, appealed to the Division of Tax Appeals in accordance with R.S. 54:29 A -31. The municipalities, contending that the Class II properties had been assessed below true value, also appealed to the Division of Tax Appeals in accordance with R.S. 54:29 A -31. In 1954, 1955 and 1956 similar appeals from the Director's assessments were taken to the Division of Tax Appeals by the railroads and the municipalities. Although some of the appeals have been decided, most of them still await hearing and determination by the Division of Tax Appeals. Under the principles announced this day in the Central Railroad Company of New Jersey v. Neeld, 26 N.J. 172 (1958), the railroads must generally first exhaust their statutory appeals in the Division of Tax Appeals and may, thereafter, obtain judicial review in the Appellate Division pursuant to R.R. 4:88-8. However, in the instant matter the railroads urge that in view of the Division's delay in hearing their appeals, the Law Division would be justified in entertaining and adjudicating their complaints without awaiting any further action in the Division. The relief they seek is to have the Law Division take immediate jurisdiction over the railroad tax controversies relating to the assessments for 1953-56 inclusive and actually determine the true value of their properties and the common level or ratio of assessed to true value of the locally assessed properties. That the granting of such relief would indeed be extraordinary may readily be gathered from pertinent judicial opinions such as Delaware, L. & W.R. Co. v. City of Hoboken, 10 N.J. 418, 424 (1952), where the cause was remanded to the Division of Tax Appeals with the following comments:
"Our review of the record persuades us that the cases must be remanded to the Division of Tax Appeals for further proceedings. There is a fatal defect in the record. The parties have not had
the benefit of findings of fact by the Division of Tax Appeals as required by R.S. 54:2-16. The deficiency was not remedied in the Appellate Division by an independent determination by that court of the basic facts and the making of its own assessments based thereon. However, we have held that usually the better appellate practice in cases presenting complex questions of value such as this is not to exercise the power conferred by Article VI, Section V, paragraph 3 of the Constitution of 1947 and Rule 3:81-13 independently to review the facts and make the assessment. City of Newark v. West Milford Tp., Passaic County, 9 N.J. 295, 301 (1952). Appellate courts should not inject themselves into the field of original valuation in such cases except in very exceptional circumstances. Cf. Kendrick Coal & Dock Co. v. Com'r. of Internal Revenue, 29 F.2d 559 (C.C.A. 8, 1928). The valuation of property in railroad use particularly presents 'highly technical' problems for experts. Long Dock Co. v. State Board of Tax Assessors, 86 N.J.L. 592 (E. & A. 1914), reversing Long Dock Co. v. Hendrickson, 85 N.J.L. 536 (Sup. Ct. 1914). The coordination and evaluation of such expert evidence is often a matter of considerable difficulty because of the unique problems entailed in the valuation of properties in railroad use and the increment in value, if any, resulting from the assemblage and consolidation of several tracts, Pennsylvania Railroad Co. v. Jersey City, 98 N.J.L. 283 (E. & A. 1922). The task of coordination and evaluation of such evidence has been expressly committed by the Legislature to the Division of Tax Appeals, a body contemplated to bring an informed judgment from specialized experience to the nice balancing and ultimate resolution of the many complex factors involved."
The complaints contained various allegations designed to establish that there have been extended delays in the disposition of railroad tax appeals in the Division. Thus they assert that since 1953 there have been 101 appeals relating to Class II railroad tax properties only seven of which were heard and finally disposed of by the Division; that no date has been set for hearing on any of the plaintiffs' appeals from the assessments for 1953-56, inclusive; and that "under the present calendar and methods of procedure in the Division, there is no prospect that any of said causes will be reached for hearing in the foreseeable future." But there were representations (not disputed by the railroads at the oral argument) that the Division has actually taken steps to bring the tax appeals of the railroads on for hearing and determination. Thus in an affidavit dated June 21, 1957 the secretary of the Division asserted that on May 20,
1957 the Division announced in the presence of the attorneys for the railroads, that "a pretrial of all the railroad tax appeals presently pending before the Division of Tax Appeals" would be held on June 28, 1957, and that "at least two panels of the Division of Tax Appeals would devote their time to railroad tax appeals, starting with September 4, 1957, and sitting, with the exception of certain dates, such as meetings of the Division, from day to day." And in an affidavit dated November 4, 1957 he stated that on June 28, 1957 a pretrial was held and that at that time it was announced that two panels of the Division would start hearing railroad tax appeals on September 4, 1957; that on September 4, 1957 two panels of the Division sat at Jersey City to call their respective lists of causes and to start hearings; that one panel after calling its list announced that hearings on the Pennsylvania Railroad appeals would be continued, and they are currently being held; that the other panel called its list on September 4, 1957 and requests were then made by the attorneys of record for adjournments in Case No. 1, New York Central Railroad v. Director, Division of Taxation, Case No. 2, Town of West New York v. Director, Division of Taxation, and New York Central Railroad, and Case No. 3, Township of North Bergen v. Director, Division of Taxation, and New York Central Railroad; and that since these appeals were not ready for hearing it was necessary to start hearings upon Case No. 4, the Reading Company v. Director, Division of Taxation, in which case, after some proof had been taken, an adjournment was granted at the request of the attorney for the Reading Company.
The plaintiff railroads do not suggest that they have ever made any formal applications to the Division for early determination of their appeals or that the Division has discriminated against them in arranging its calendars for the hearing of appeals. Indeed, they do not now request or seek any judicial relief in lieu of mandamus to compel the Division to hear them expeditiously ...