On certified appeal to the Appellate Division of the Superior Court from the State Division of Tax Appeals.
For reversal -- Chief Justice Weintraub, and Justices Heher, Burling, Jacobs, Francis and Proctor. For affirmance -- Justice Wachenfeld. The opinion of the court was delivered by Heher, J.
The issue here concerns the amount payable by the City of Clifton to the County of Passaic under the Added Assessment Act, L. 1941, c. 397, N.J.S.A. 54:4-63.1, particularly section 10, N.J.S.A. 54:4-63.10, providing that on February 15 of each year the municipality shall, in addition to the regular installment of county taxes to be paid on the given day, pay to the county an amount determined "by multiplying the total amount of assessments in the added assessment list for the previous year by the county and State rate for the preceding year, and such amount shall be for the use of the county."
On December 20, 1957 the county treasurer advised the city, by letter, that the Passaic County Board of Taxation had certified that $29,069.32 was due from the city to the county for added assessments levied by the city during 1957. Upon the county's refusal of the city's tender of $10,172.90 as the sum legally due, the city presented its petition to the State Division of Tax Appeals alleging that the county board of taxation had infringed N.J.S.A. 54:4-63.10 in that it had certified "an amount to be due at a different rate for each taxing district in the county, viz: 16 different rates, not one of which is the official county rate as set forth in the Abstract of Ratables for 1957," and praying that the "action" of the county board "in certifying the amount due for added assessments" for the stated year be set aside and that the Division certify the "correct amount" due and payable to the county by clifton "and all other taxing districts." The case is here by our certification, sua
sponte, of the Division's dismissal of the city's "appeal." Of this, more hereafter.
The city's argument is that it was and is incumbent on the county board of taxation "to secure the taxation of all property in the county at its true value, in order that all property shall bear its full, equal and just share of taxes," R.S. 54:3-13; that after the county board "has compiled a list of all the various sums necessary to be raised by taxation within the county for State, county, municipal and school use," it is required by R.S. 54:4-47; 54:4-48, "to revise, correct and equalize the assessed values and to do everything necessary for the taxation of all property in the county equally and at its true value" and "apportion the tax burden among the taxing districts"; that "when and if errors were discovered," R.S. 54:4-53, "or when and if assessments are reduced," R.S. 54:4-50, "any excess amount of taxes paid by a municipality [is] to be computed by the county board and credited to the municipality in the following year"; that after the "equalized apportioning of the tax burden is made by the county board," the governing body of each municipality is obliged, R.S. 54:4-74, to pay to the county treasurer, in four installments as therein specified, the "amount of county taxes required to be assessed and raised in such municipality," and as well "all the taxes to be raised for state school and other state purposes," and so the contention of the county board that it "has no duty to perform and that the municipality is the only one upon whom a duty is imposed by R.S. 54:4-63.10 is untenable"; that the Legislature did not intend that a municipality "compute its own taxes nor [its] share of the county burden without supervision," either for the "regular tax load" or for the "amount to be contributed by virtue of the added assessments levied after the regular load had been apportioned"; and that the "duty to revise, correct and equalize is imposed upon the county board for the added assessments as well as for the regular assessments."
Apropos of the inclusion in the apportionment process of the added assessments according to N.J.S.A. 54:4-63.10,
it is said that it is "common knowledge that those added assessments are not levied at 100% of true value of the property nor are they assessed at an equal ratio of true value with the added assessments levied in the other municipalities in the county," citing Switz v. Middletown Twp., Monmouth County, 23 N.J. 580 (1957), yet "the money paid or to be paid to the county from those added assessments 'shall be for the use of the county,'" and "this money must of necessity be credited to unanticipated income or surplus to be used by the county at some future date for general county purposes," but it "cannot be used during the year of levy and the year in which the rate was fixed since the budget for that year already has been expended"; and that "no equalization of added assessments is made in Passaic County nor does the county board credit any payment by virtue of the added assessments on account of any future payments to be made by a municipality when an equalized apportionment of the county burden does take place."
In a word, it is affirmed that "this is unjustifiable discrimination and a wilful failure by the [county board] to perform the duty imposed upon it by the legislature."
Conceding that N.J.S.A. 54:4-63.10 does not in terms require the county board to "compute the amount of taxes due from each taxing district in the county," it is insisted that the legislative purpose is "clearly defined" in chapters 3 and 4 of Title 54, and it is therein made the duty of the county board "to bring the added assessments levied in each taxing district to 100% of true value and thereafter multiply the aggregate true value by the county and state rate so that each taxing district in the county contributes to the county its full, fair and just share of money for county purposes."
The use of the singular "rate" in the direction to multiply the "total amount of added assessments" by the county and state rate is deemed significant. It is said that the Legislature "never meant a different rate for each of the 567 municipalities in the State"; it "meant the same ...