Civil action in lieu of prerogative writs.
[92 NJSuper Page 339] This matter came on for hearing on cross motions for summary judgment pursuant to R.R. 4:58-1,2. The facts of the case were not disputed. The Essex County Board of Taxation sought by a civil action in
lieu of prerogative writs pursuant to R.R. 4:88-4, to compel the tax assessor and the town council of Belleville, together with its mayor and municipal manager, to revalue the taxable real property within the municipality. This revaluation was deemed necessary by the county board of taxation in order to bring the assessed value of property more nearly in line with its market value and thereby achieve a 100% valuation. In opposition, the town council denies the power and authority of the county board of taxation to specifically order anyone but the tax assessor to revalue the taxable real property of the municipality.
It further appears that on December 18, 1964 Joseph Solimine, secretary of the Essex County Board of Taxation issued an order from that board directing the tax assessor to proceed with revaluation. There is no issue raised as to the bona fides of the tax assessor in attempting to correct the situation. The proof offered tends to establish that he was operating under a revaluation carried out in Belleville in 1957 and that since that date he has used acceptable methods to determine the present tax imposed.
From these facts, then, there emerges the sole novel question of law as to whether the Essex County Board of Taxation can, by application to this court for the issuance of mandamus, compel the town council and tax assessor of Belleville to appropriate monies and so furnish the aid needed to carry out a revaluation in that municipality.
Neither party raises any dispute as to the facts. It is well settled in this State that when there are no facts in dispute and the only issue before the court is one of law, the matter is properly a subject for summary judgment. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67 (1954); Felbrant v. Able, 80 N.J. Super. 587 (App. Div. 1963).
The relief requested is the issuance of a prerogative writ of mandamus. Mandamus is an extraordinary remedy at law used to compel a municipal or public official to exercise a duty imposed by law. While the very essence of the power
provided by the issuance of mandamus is to compel action, nevertheless the writ cannot, under our law, be used to force the mode or manner in which a discretionary procedure must be accomplished; rather, the sole function in situations such as here present is to force the use of that discretionary power. Roberts v. Holsworth, 10 N.J.L. 57 (Sup. Ct. 1828); Switz v. Middletown Twp., 23 N.J. 580 (1957).
The unequivocal power to tax is found in Art. VIII, Sec. I, Par. 1 of the New Jersey Constitution, 1947. Art. VIII provides that "property shall be assessed for taxation under general laws and by uniform rules." While the direct power comes from the Constitution, the body historically charged with the function of promulgating general laws and uniform rules is the Legislature. Art. IV, Sec. I, Par. 1. It is its prerogative to exercise the duty imposed by the Constitution. By statute, the Legislature has created county boards of taxation to aid in the collection and distribution of taxes. These boards are necessarily limited by the powers conferred upon them by the Legislature.
In a broad grant of power the Legislature has delegated to these boards of taxation authority to act so that they may "in general do everything necessary for the taxation of all property in the county [equally] at its taxable value." N.J.S.A. 54:4-47. In addition, as a further delegation of the broad sweep of its power of taxation, the Legislature clearly enunciated the duty to be performed by the tax assessor.
"The assessor shall * * * determine the full and fair value of each parcel of real property situate in the taxing district at such price as, in his judgment, it would sell for at a fair and bona fide sale by private contract on October 1 next preceding the date on ...