For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the Court was delivered by Proctor, J.
The primary issue in this case is the constitutionality of the requirement in L. 1967, ch. 44 (N.J.S.A. 54:1-35.25 et seq.) that a candidate for the elective office of municipal tax assessor be a graduate of a four year course at a college of recognized standing. This requirement is part of a statutory scheme for the certification of both elected and appointed assessors. To obtain an assessor's certificate, a person must have passed an examination given by the Director of the Division of Taxation. This examination is open only to those who have completed a four year course at a college of recognized standing or who have had full-time experience in real estate appraisal work or experience in property tax assessment work on a year-for-year basis. N.J.S.A. 54:1-35.25.*fn1 No candidate for election to a term commencing on or after July 1, 1971, may have his name placed on the ballot unless he has filed with the municipal clerk proof that he is the holder of a valid tax assessor certificate. N.J.S.A. 54:1-35.30.
The plaintiff is the incumbent tax assessor of the Borough of South River and was a candidate in the November 3, 1970 general election for a second term of office beginning July 1, 1971. There is no dispute that he meets the statutory qualifications for the position and that the defendant Shaluha does not.
On June 3, 1970, at the primary election, Shaluha was nominated by his party to run against the plaintiff. Earlier, in May of that year, the plaintiff attempted to learn whether Shaluha was qualified for office by asking him whether he
was a college graduate. The trial judge found that Shaluha falsely represented his qualifications as a college graduate, and that finding is not questioned here.
On or about June 9, 1970, defendant Reichenbach, the Borough Clerk, certified Shaluha as a candidate even though he lacked the requisite tax assessor's certificate. This was a flagrant violation of N.J.S.A. 54:1-35.30 which forbids a municipal clerk from certifying the name of a candidate for inclusion on the ballot unless the candidate has a valid assessor's certificate.*fn2 On June 22, 1970, the plaintiff wrote Reichenbach informing him of his statutory duties in connection "with the certification of candidates for election as assessor." There is nothing in the record to indicate that the plaintiff was yet aware that Shaluha lacked the necessary qualifications and Reichenbach's letter of reply to plaintiff disclosed nothing about Shaluha's lack of eligibility. As the trial judge found, that letter was "unresponsive."
The trial court also found that the plaintiff made numerous efforts to pursue the matter of Shaluha's qualifications with the County Board of Taxation and it was undisputed that, in response to plaintiff's complaints, the Board sent a bulletin to Reichenbach informing him of his duties in certifying candidates.
There was an assessor's examination scheduled for September 19, 1970, pursuant to N.J.S.A. 54:1-35.25, and plaintiff apparently awaited this event to ascertain whether Shaluha was qualified to run for assessor. On September 29, 1970, in answer to his inquiry, plaintiff received a letter from the State Division of Taxation informing him that Shaluha did not possess a tax assessor certificate. He complained to defendant Schatzman, the County Clerk, seeking
to have Shaluha's name removed from the ballot because of his ineligibility. Schatzman replied by a letter dated September 30, 1970 that plaintiff's objection was out of time since it did not comply with N.J.S.A. 19:13-10.*fn3 Accordingly, Schatzman refused to take any action.
Finally, plaintiff requested that the County Tax Board, which had general supervision over municipal assessors, have Shaluha's name struck from the ballot. The Board informed him that it could not comply with his request and suggested that, if he wished to press the matter, he should look to the courts for redress. Shortly thereafter, on October 7, 1970, plaintiff filed the present action in the Law Division.
At the trial conducted the following day, Judge Furman held that the defendant Shaluha was improperly on the ballot since he did not have the tax assessor certificate mandated by N.J.S.A. 54:1-35.30. He also found that the election law provisions cited by the defendants (N.J.S.A. 19:13-10; N.J.S.A. 19:13-12; N.J.S.A. 19:29-3) were not applicable, but held that the suit was a proceeding in lieu of prerogative writ and governed by the 45-day period applicable to such a suit (R. 4:69-6(a)). He further held that, because of plaintiff's efforts to learn through official channels whether Shaluha was eligible and because of Shaluha's misrepresentation that he was a college graduate, the 45-day period was tolled and did not commence to run until plaintiff learned of Shaluha's ineligibility. The trial judge concluded that plaintiff's suit was timely and that Shaluha's name should not appear on the ballot in the general election to be held on November 3, 1970. He did not
rule on the constitutionality of the eligibility requirements. The judgment was entered on October 20, 1970.
Only defendant Shaluha appealed to the Appellate Division. In an unreported opinion that court reversed, one judge dissenting, on the ground that plaintiff's action was not timely. It ordered that Shaluha's name be restored to the ballot, but held that its reversal was without prejudice to plaintiff's right ...