Switz v. Township of Middletown , 23 N.J. 580 ( 1957 )

Wachenfeld, J.

(dissenting)The query here is whether or not we will sustain the direction of the Superior Court, by way of writ of mandamus, in substance compelling the defendant assessors of the Township of Middletown to value and assess all taxable real property at 100 per cent of true value.

The matter complained of is admittedly “not a recent development; it has always been thus.” As a matter of fact, the existing practice is more than a century old.

In its sweep, the majority opinion also includes tangible personal property, which was not made an issue or even mentioned in the pleadings before us. No one has yet been given an opportunity of arguing or presenting the matter to us. There are millions of property owners throughout the State who have had no notice of this issue and are totally unconscious of its existence. They will awake tomorrow, however, to find themselves substantially affected, not by anything their elected representatives did but by a judicial decree on an issue not even a part of the litigation presently being considered.

Rendering a vital judicial adjudication without representation or notice is contrary to our customary concept of fundamental justice.

Although the majority says “care must be taken that the mandamus process shall not be made the instrument of confusion and the unsettling of the local economy and-even greater intra- and inter-county inequality,” it then proceeds, in the face of its own cautionary warning, to direct the judgment below to stand and merely postpones its effective operation for a period of time.

The majority concludes “the problem is basically legislative and administrative” and then inconsistently proceeds to solve it judicially. (Emphasis supplied)

The remedy by mandamus is a process, as outlined by the majority, which “issues to redress and not to promote a wrong” and it will “be refused where the result will be ‘disorder and confusion, * * * or. where the rights of third persons will be injuriously affected’ ” and is “ ‘largely within the discretion and control of the court.’”

What may occur by reason of this decision is adumbrated in the Chief Justice’s dissenting opinion, where he strives valiantly to overcome the anticipation of chaotic upheaval and injury to the taxpayer. He notes the “fears” that the drastic change “could work detriment to the economic and community fiscal aspects of life in this State” in “chasing away of the industry and the imposition of the burden borne by it upon the residential property, principally the small home owner” and “the temptation, in anticipation of increased revenues.”

He then concludes: “But there can be no windfall to the governing body of the municipality at the expense of its taxpayers.” I am hoping this is more than wishful thinking, but a practical and realistic approach reflects unusual jeopardy for the taxpayer. The tax structure and mechanism are extremely complicated, and I do not think this court can even begin to visualize and appreciate the far-reaching effects of its decision. Aside from the ensuing inflation of borrowing power which perhaps only the Legislature has the right to control, Director Neeld in “The Gibraltar Case— Full True Value Assessments ’’ January 1956 issue of New Jersey Municipalities, stresses that full true value assessments will have the effect of seriously reducing the Public Utility Gross Receipts Tax and disrupting the tax structure with respect to the prevailing spread between real and personal property. He says:

“In view of the magnitude and complexities of the problem and the dangers of precipitate action, the Legislature may deem it desirable to review the entire field of local property tax administration through a Legislative Commission.”

Even though it is “legislative and administrative,” in essence, the court nevertheless brings about the drastic change and there is little the taxpayer can do about it now.

|The majority is so fearful of the resultant harm it postpones the enforcement of its decree for three years, hoping to be rescued^ from its own decision by the Legislature in the meantime jj

It speaks of “the danger of windfall * * * spending,” “the likelihood of even greater discrimination by hasty and ill-considered assessments,” “the disposition to spend when ‘new* revenues are at hand,” and of “a measure that could prejudice local fiscal action and work injury to the individual taxpayers and hardship in other directions.”

Despite these fears, all well grounded and reasonably to be expected, and with a final wailing lament, “we allude again to the element of inequality attending the fulfillment of the judicial mandate,” they affix the judicial seal which may well bring about all the dire things of which they are so apprehensive.

The dictation of the majority, in my opinion, trespasses upon the heart of our constitutional concept of separation of powers among the coordinated branches of government.

'¡While it is true that the statutes require by their terms assessment of property at true value, the admitted and undisputed fact remains that neither the local tax assessors, the county boards of taxation, the Director of the Division of Taxation, nor the Division of Tax Appeals has ever undertaken to enforce the statutory mandate to its full magnitude, although they have the complete equipment and the full poweT to do so. As it now exists, the practice has continued ever since the true value standard was written into the Constitution of 1844, Art. IY, Sec. YII, par. 12, as amended, effective September 28, 1875.

It is hardly the province of this court to sweep away almost a century of precedent in an area which it admits is “legislative and administrative” and constantly under the surveillance of and wholly subject to the legislative processes. Judicial discretion, if not constitutional mandate, warns us not to transgress upon a matter which is so wholly legislative. Our critics, who insist we have usurped legislative and executive functions heretofore, will find substantial and added comfort from this new judicial effort.

The majority recognizes the legislative, together with the executive, branch is presently studying a contemplated revision of true value standards and the administrative machinery for determining and fixing assessments. Whatever changes result will be made by those who are properly empowered to deal with questions affecting all of the people of the State, and it does not behoove us to decide now a matter which they want further time to study. The people have recourse from their conclusions; none from ours.

I would reverse the judgment below and deny the writ.]

With this dissenting opinion goes a fervent prayer that its fears, projections and reflections will prove to be completely wrong and that the taxpayer is not to become a sacrificial lamb by judicial fiat and that there will henceforth be equitable equality of tax burdens which we all hope for.

Tomorrow we shall see.