Civil action in lieu of mandamus.
[57 NJSuper Page 319] Plaintiff, Treasurer of Bergen County, on August 21, 1959, filed a complaint in lieu of mandamus to compel the defendants, the Tax Collector and Treasurer of the Village of Ridgefield Park, and the board of commissioners
of said village, to pay to the plaintiff, as such treasurer, the sum of $63,005.09. The plaintiff contends that said sum became due and payable to him as Treasurer of Bergen County on August 15, 1959, as the third installment of the taxes levied for the year 1959 for county purposes against the real and personal property lying within the said municipality. The plaintiff contends that R.S. 54:4-74 requires the defendants to pay to the plaintiff the said installment of taxes.
The defendants filed an answer in which they contend that the taxes levied for county purposes for the year 1959 against the real and personal property lying within the said village are unconstitutional, illegal and void. Their defense rests upon the allegation that the assessed valuations of the real and personal property in the various municipalities in Bergen County have not been uniformly assessed and equalized as required by the constitution, Art. VIII, § I, par. 1, and, as a result thereof, the county taxes as apportioned and levied against the said village are excessive, unconstitutional and void.
The plaintiff brings this motion to strike paragraphs 2 and 3 of the defendants' answer, and to also strike the separate affirmative defenses of the answer wherein it is alleged that the said levy for county taxes is unconstitutional and void. The plaintiff is, therefore, seeking a summary judgment peremptorily ordering the defendants to pay to the plaintiff, as Treasurer of Bergen County, the said sum of $63,005.09 as the third installment of the taxes levied for the year 1959 for county purposes against the property, real and personal, lying within the said village. A peremptory writ of mandamus issues only when the right thereto has been clearly established.
This suit is another phase of the litigation which was instituted in this court on March 18, 1959 by the Village of Ridgefield Park and certain owners of property situated in Ridgefield Park to determine the constitutionality and legality of the taxes levied for the year 1959 for county
purposes against the real and personal property situated in said municipality. The complaint filed by said village and others is in lieu of certiorari and mandamus. Certiorari is the proper action for such a purpose, State v. Court of Common Pleas of Mercer County , 1 N.J. 14 (1948). The Bergen County Board of Taxation, the County of Bergen, the Treasurer of Bergen County (the plaintiff in this suit), and the assessors of each and every taxing district in Bergen County, are named as defendants. In that prior suit, the said village contends that the apportionment of the amount to be raised by taxation for county purposes and levied on the property situated in Ridgefield Park is unconstitutional, illegal and void. The complaint alleges that the valuation assessments levied on the real and personal property in the taxing districts in Bergen County have not been uniformly assessed, and that the assessments have not been equalized among the various taxing districts, and that, therefore, the county taxes levied on Ridgefield Park are excessive, unconstitutional, illegal and void. In said suit, the village seeks to have the taxes levied for the year 1959 for county purposes against the property in Ridgefield Park set aside as void ab initio. An answer was filed on behalf of the Bergen County Board of Taxation, the County of Bergen, the Treasurer of Bergen County, and most of the local assessors. A pretrial order was entered on May 4, 1959, and the case was set down for trial on June 1, 1959.
In the said suit brought by Ridgefield Park a motion was made on behalf of the Bergen County Board of Taxation, and also on behalf of some of the defendant assessors, for a summary judgment dismissing the complaint filed by the said village. The trial court held that the complaint set forth a good cause for action, and denied the motion. From the order denying the motion, an appeal was taken to the Appellate Division, as a result of which the trial of the issues involved, which was to begin June 1, 1959, is stayed until the appeal has been determined.
For the purpose of the motion made by plaintiff, as Treasurer of Bergen County, for a summary judgment, he admits all the well pleaded allegations of material facts in the separate defenses in the answer of the defendants, and all facts reasonably inferable therefrom. If there is a genuine issue of material facts that must be determined before judgment can be given, a summary judgment cannot be entered. Coastal Oil Co. v. Eastern Tankers Seaways Corporation , 29 N.J. Super. 565 (App. Div. 1954); Orrok v. Parmigiani , 32 N.J. Super. 70 (App. Div. 1954); Bickwit v. Hammes , 34 N.J. Super. 568 (Ch. Div. 1955); McDermott v. Botwick , 38 N.J. Super. 528 (App. Div. 1956). For the purpose of this motion, the said plaintiff, as Treasurer of Bergen County, therefore admits the allegations in the answer of the defendants that the real and personal property in the various taxing districts of Bergen County have not been uniformly assessed and the assessed value equalized as required by the Constitution of New Jersey, and that, as a result thereof, the county taxes levied against Ridgefield Park for the year 1959 are excessive and void.
All acts relating to taxation and the enforcement thereof are subject to the constitutional requirement of equality and uniformity. The constitutional mandate that property shall be assessed for taxes by uniform rules is self-executing. No legislation is needed to give it effect, and anything done in violation thereof is absolutely void and of no effect. Consequently, no tax can be lawfully laid on property which is not determined by a valuation of the property by a uniform rule. State, North Ward National Bank of Newark, prosecutors v. Mayor, etc., of City of Newark , 39 N.J.L. 380 (Sup. Ct. 1877), reversed on other grounds 40 N.J.L. 558 (E. & A. 1878); Taylor v. Smith , 50 N.J.L. 101 (Sup. Ct. 1887); Sisters of Charity of St. Elizabeth v. Collector of ...