Goldmann, Kilkenny and Collester. The opinion of the court was delivered by Collester, J.A.D.
This matter involves appeals from judgments entered in two actions in lieu of prerogative writs which were instituted in the Superior Court, Law Division, Monmouth County. In each case the trial court entered judgment dismissing the complaint. The appeals were consolidated for argument because they involve common questions of law and fact.
In appeal bearing docket number A-948-62 (hereafter referred to as the Becker case), plaintiff J.H. Becker, Inc., a taxpayer of the township of Marlboro, filed a complaint in lieu of prerogative writs naming as defendants the Township
of Marlboro; George Wendel, tax assessor of the township; United Appraisal Co., and the Monmouth County Board of Taxation. In the first count of said complaint, plaintiff alleged that the 1962 tax assessments on real property located within the township, as determined by the tax assessor and levied by the township, were not made at a uniform standard valuation of 100% of true value, which had been established by the county board of taxation as the level of taxable value to be applied uniformly throughout the county pursuant to N.J.S.A. 54:4-2.27. It charged that defendant United Appraisal Co., which had revalued all taxable real property in the municipality (under a contract with the township) had failed and neglected to revalue such property in accordance with said standard. It further averred that defendant Monmouth County Board of Taxation did not proceed to equalize the assessed value of such property pursuant to N.J.S.A. 54:4-47. (It is noted that N.J.S.A. 54:4-2.27 and N.J.S.A. 54:4-47, referred to above, are sections 3 and 32 of L. 1960, c. 51 which has been postponed until the tax year 1965 and is not presently operative or in effect. L. 1963, c. 9, N.J.S.A. 54:4-2.34. However, the present law still requires assessment and equalization of all real property at its true value. N.J.S.A. 54:4-1, 46 to 48; L. 1918, c. 236, §§ 202 and 507).
The complaint also claimed that if all real property in the township had been assessed at a uniform and standard taxable value based upon actual value, the taxes of plaintiff would be substantially lessened; that by reason of a discriminatory and unequal assessment plaintiff had been required to bear an excessive share of the taxes levied by the township. It further asserted that while plaintiff had appealed to the State Board of Tax Appeals from an overassessment of taxes, such appeal would not accomplish a uniform and standard assessment of the true value of the real property; that plaintiff under the law was entitled to have equal and uniform assessments of a taxable value of 100% of true value applied to real property of the township.
Plaintiff demanded judgment that (1) the assessor and United Appraisal Co. revise the assessments in accordance with the actual value thereof, fixing the true value of the real property and then applying the taxable value thereto; (2) the township and United Appraisal Co. proceed to correct the appraisals of real property theretofore made, and (3) the Monmouth County Board of Taxation review and correct the assessment rolls pursuant to N.J.S.A. 54:4-47.
Defendants' answers denied the allegations of the complaint and asserted affirmatively that (1) plaintiff had not exhausted its administrative remedies, (2) the complaint failed to state a cause of action upon which relief could be granted, and (3) lack of jurisdiction to grant the relief sought by a proceeding in lieu of prerogative writs.
In the second count of the complaint plaintiff sought to recover compensatory and punitive damages from defendant United Appraisal Co., alleging it sustained injury caused by the defendant's negligent and incompetent revaluation of township property. Defendant answered denying the allegations and asserted affirmatively that plaintiff had failed to state a claim upon which relief could be granted.
In appeal bearing docket number A-49-63 (hereafter referred to as the Gahler case), plaintiff John A. Gahler and 11 others, all taxpayers of the township of Holmdel, brought a similar action naming as defendants the Township of Holmdel; John Mount, tax assessor of the township; Municipal Revaluations, Inc., and the Monmouth County Board of Taxation. Defendant Municipal Valuations, Inc., under contract with Holmdel, had made a municipal-wide revaluation of property within the township.
In this action plaintiffs challenged the validity of the 1962 assessments on similar facts and for the same reasons as contained in the first count of the complaint in the Becker case. They sought the same relief and also specifically demanded judgment that the township assessor and Municipal Revaluations, Inc. "revise the assessments in accordance with actual sales made within the township fixing the true value
of the real estate and then applying the taxable value thereto." (Emphasis added)
Defendants denied allegations in the complaint and asserted affirmatively that (1) plaintiffs had failed to exhaust their administrative remedies of appeal to the Monmouth County Board of Taxation and to the State Division of Tax Appeals, and (2) the relief sought was not concerned with the ministerial duties required to be performed by the tax assessor, and therefore the proceeding in lieu of prerogative writs (mandamus) could not be invoked.
In the Becker case, defendants moved for a judgment on the pleadings. In Gahler , defendants moved for summary judgment, and affidavits and opposing affidavits were filed. The trial court granted defendants' motions in both cases and dismissed the Gahler complaint and the first count of the Becker complaint for the reason that plaintiffs had failed to exhaust their administrative remedies before the Monmouth County Board of Taxation and the State Division of Tax Appeals. It dismissed the second count of the Becker ...