Goldmann, Freund and Haneman. The opinion of the court was delivered by Goldmann, S.j.a.d.
The sole question to be determined on this appeal is whether, under N.J.S.A. 40:37-15.1 (the Park Maintenance Act, as amended) the words "assessed valuation of the taxables and ratables of the county" mean the aggregate of the assessed valuations as determined by the local assessors or the equalized valuation as determined by the county board of taxation. Plaintiff contends the language means the latter; defendants argue it means the former. The Law Division held in favor of defendants.
Plaintiff Essex County Park Commission ("Commission") was created pursuant to L. 1895, c. 91; N.J.S.A. 40:37-96 to 174, "An Act to establish public parks in certain counties in this state, and to regulate the same." The act was adopted by the voters of Essex County at an election held in April 1895. The funds required by the Commission for the maintenance of the Essex County Park system are presently raised by and distributed to it by the County of Essex under provisions of L. 1952, c. 193; N.J.S.A. 40:37-15.1 (the Park Maintenance Act), which provides:
"The board of chosen freeholders in any county having a county park system and in which the provisions of sections 40:37-12 to 40:37-15 of Title 40 of the Revised Statutes are now or hereafter operative, shall annually, in ordering the amount of money to be raised for county purposes, declare the amount necessary to be raised for the purpose of maintaining the public parks and roads or parkways built in connection with the public park system of such county, which amount shall not be less than one-half of one mill on the dollar, nor more than one mill on the dollar of the assessed valuation of the taxables and ratables of the county.
If in any year the park commission shall certify to the board of chosen freeholders that an amount less than the minimum hereinbefore prescribed is needed for the maintenance of the park system during that year, and shall also certify the exact amount necessary to maintain the parks during that year, the board shall raise for that year the sum so certified by the park commission instead of the minimum hereinbefore prescribed.
This act shall remain inoperative in any county until adopted by a majority of the votes cast on the question of the adoption or rejection thereof at a general election. * * *
Upon this act being adopted in any such county, this act shall thereupon become operative therein, and the provisions of sections 40:37-14 and 40:37-15 of the Revised Statutes inconsistent herewith shall thereupon cease to be operative in such county; * * *." (Italics ours.)
This statute was duly approved by a majority of the voters of Essex County at the general election held in November 1952.
The assessed valuation of the taxables and ratables of Essex County for the year 1958, after equalization and confirmation by the county tax board, was $3,708,184,175, subject to adjustments for 1958. Calculated at the minimum of one-half of one mill on the dollar, the sum required to be raised and distributed by the county to the Commission under N.J.S.A. 40:37-15.1 would be the sum of $1,854,092.09.
On December 17, 1958 the Commission adopted a resolution approving its budget for the year 1959 and requesting the freeholder board to include in the 1959 Essex County budget the net sum of $2,129,793.59 for maintenance of the county park system, pursuant to the Park Maintenance Act. The budget, together with a copy of the resolution, was transmitted to the freeholder board and filed with it on December 18, 1958.
On January 22, 1959 the freeholder board introduced and approved the county budget for the year 1959, appropriating therein the sum of $1,711,045 for county park maintenance purposes. This represented one mill on the dollar of the aggregate assessed valuations of all taxables and ratables totalling $1,711,045,000 as determined by the assessors of the various municipalities of Essex County. The appropriation, in the view of the freeholder board, represented the maximum discretionary amount it could allow under the statute. The statutory public hearing on the budget was called for February 9, 1959.
The Commission thereupon, by complaint and order to show cause filed January 27, 1959, brought an action in lieu of
prerogative writs (a) to compel the freeholder board to appropriate for county park maintenance purposes the requested sum of $1,854,092.09, as required by law, instead of the $1,711,045 provided in the county budget; and (b) to stay adoption of the county budget pending determination of the action, or in lieu thereof that provision be made for payment to the Commission of such additional funds as may be required by law. The order to show cause was returnable February 6, 1959. On January 30, 1959 an order was entered continuing the hearing on the order to show cause to February 20, 1959, a date beyond that fixed for the hearing on and adoption of the county budget. The order of continuance was granted upon the express condition that if the action were resolved in favor of the Commission and judgment entered thereon, and all of defendants' legal remedies were exhausted, defendants were promptly to appropriate and pay over to the Commission such additional sums as defendants were under a duty to pay. The county budget was adopted on February 9, 1959 without change in the park maintenance appropriation.
In its complaint the Commission contends that the freeholder board improperly used the aggregate of assessed valuations of ratables as established by the local assessors ($1,711,045,000) rather than the aggregate of the adjusted equalized valuations as set forth in the equalization table attached to the complaint ($3,708,184,175). The claim is that the freeholders should have calculated the mandatory minimum of one-half mill on the dollar on the basis of the latter figure, producing an appropriation of $1,854,092.09 (including adjustments) -- a sum $143,047.09 in excess of the actual appropriation.
Both parties moved for summary judgment on the pleadings, exhibits and briefs, and the Law Division judge entered judgment for the defendants dismissing the complaint. This appeal followed.
The statute here in question, N.J.S.A. 40:37-15.1, provides for a mandatory minimum that ...