*1 AL., CO., BALDWIN ET CONSTRUCTION PLAINTIFFS-RE SPONDENTS, v. TAXATION ESSEX COUNTY BOARD OF ORANGE, CITY AND OF EAST DEFENDANTS-APPEL LANTS.
Arguеd May 17, Reargued September 13, 1954— 1954— October 1954. Decided *3 Hr. Milton B. Attorney-General, First Assistant Conford, and Mr. Attorney- A. Assistant Joseph Murphy, Deputy General, the for Grover C. cause argued appellants (Mr.
Bichman, Jr., Furman, D. Mr. David Attorney-General, Bosen, and Mr. James on brief Deputy Attorney-General, Taxation; for the Essex Mr. Board of appellant County of East Karrdlcis, City Donald on brief for the appellant Orange).
Mr. Herbert J. Hannoch and Mr. Blair Beiley argued and Mr. cause for L. respondents Joseph Lippman (Mr. Hannoch, Weinstein, Weinstein, brief; Messrs.
Morris Stern, & \& Messrs. Martin Mr. J. Myers Reiley, Selich Krauss, Mindes, (cid:127)& Fngel, Messrs. Messrs. Sanderson \& Levy Clancy Clancy, attorneys). and Messrs. of the opinion
The court delivered by J. certiorari under By in lieu of proceeding Heher, VI, Article Section Constitution V, paragraph 1947, R. 4:88-1 Rule :81-1 et now R. implemented by seq., et seek relief from what seq., plaintiff landowners asserted in the discrimination assessments taxation laid their several upon City pieces East 1952, for the have Orange year been sub- whereby they jected ato share of the burden in disproportionate tax viola- tion of the principle of secured Eourteenth equality Amendment to the VIII, Eederal Constitution and Article I, Section Constitution, State and- the paragraph tax statute itself. seven litigation cоmprises separate proceedings
law in lieu of certiorari to review 107 increases of land five municipalities viz., of Essex County, Verona, Caldwell, East Bloomfield Orange, Belleville. There were other assessment revisions these and still other are municipalities which' not under direct judicial attack. The case now before us relates challenged assessments; East Orange in all complaints are in substance the same. proceedings On 1952 the January local assessors in Essex returned to the Essex County County Board of Taxation their several assessment lists and duplicates accordance 54:4-35, with R. as amended 120; S. L. c. board undertook thereupon performance of
its statutory examine, function to revise and correct 54:4-46, tax R. 54:4-55, lists and S. duplicates, integral *4 of the assessment itself. part process Hackensack Water v. Division Tax Appeals, 2 N. J. Company 157, 164 Ivins, Middletown v. 102 N. J. L. (1949); Tp. 36, 41 On March 10 1925). Ct. (Sup. ensuing, county board advised the various local assessors by telephone prospec tive some assessments in- some “changes parts of the and 20 the on March board ordered county”; specific cor lists, the tax and revisions of and directed rections the asses East The revised to conform. tax list Orange sors concerns 62 parcels of real and 13 property owners of personal prop- There erty. were numerous revisions and corrections of assessments the several Essex municipalities County.
aAt of the various local meeting assessors and Assessors,” board held March 24 following, the “Local is averred in the complaint, protested revision of the East There assessments. were like Orange complaints by other assessors, assessors: “Many the Local including Assessors,” that “in asserted out here and picking properties there throughout County” assessments, for increased board visited the particular landowners upon “an unfair share” of the tax burden, but the board’s pres- ident assurances that “had at- gave board although tempted to with the comply”. statutory/ revise, direction to correct and equalize assessments, time, for “lack of lack of information and particularly (the lack funds County $25,000 Ereeholders allotted Tax only to the having County Board for this could board not purpose),” comply law and therefore “had undertaken adjust- a partial assessments,” ment of some of the and the law afforded means of “errors” under “pres- revision correcting attending sure.”
It was also that while taxable оf real alleged parcels in East numbered the assessment Orange 62; revisions and corrections involved the assess- ments on real Avenue parcels Central fronting were land, increased as to in some 200%, cases 100% as to but no building, comparable change 1/3% other area; made as to properties the immediate there were increases in arbitrary assessments on building street, or irrespective physical condition of age structure, and “Special for purpose buildings, designed par- owners, use of and occupied by ticular were increased in use”; the same manner as buildings designed that there was arbitrary discrimination between “residences” houses, apartment “changes” “some, on business were confined to properties all, prop- particular Street”; located within a area of Main erty *5 20,000 that personal were made in “changes” only assessments in the property city. that
In the complaint particular, charged Avenue, assessment of the land at No. Central Co., has been tripled ownership plaintiff Doop Realty one-third, and and the assessment increased building $1,120 per at of about land assessment “is now the rate foot, assess- front front foot, $420 as with compared pеr assess- ment that land property”; adjoining ment of & Trust Company, Investment plaintiff Savings southeast corner Avenue and Harrison of Central Street, the build- has been and the assessment on doubled one- includes increased house, which its ing, hanking rate third, this at the and so land assessment “is plaintiff's foot, of about front as compared $778 Central Avenue per foot, front the assess- $152 about Central Avenue per street”; ment the land of the across the property Realty assessment of Tishman & Construc- plaintiff Avenue Co., Inc., tion at the northwest corner of Central Street, assess- and Halstead has and its tripled been building one-third, ment while the assessment of the prop- increased corner, the same on the northeast valued erty opposite “upon and now unchanged, basis as stands plaintiff's property,” about land assessment “is at rate of plaintiff's $1,000 front corner Central Avenue foot one per (including Central Avenue $350 with about influence), compared per the ad- influences) front foot two corner (including “a and the assessment jacent property,” building is^also adjacent than that of the basis higher made to a to the hoard a com- report Referring in 1951 mittee for of assessments” “equalization organized the Associatiоn of Assessors of Essex Municipal County board, of and with the “at the approval” request real analysis all sales says complaint 1950 reveals year Essex that “with County during real estate in East of industrial located exception properties, assessed at of full and fair higher Orange percentage e., the value than the county-wide average” county-wide —i. *6 assessment on residence average was properties 42.1% “full value,” and fair but the “percentage applicable East was 49.9%”; fam- Orange apartment houses (six ilies and the over) county-wide assessment was average of full and fair and the East Orange average 59.4% 64.2%; on commercial the county-wide assess- properties ment was and the average 59.8%, East Orange average 65.9%; on industrial properties county-wide assess- ment was average 66.1%, the East Orange average 56.5%; and vacant land was assessed at a county-wide while 59.7%, the East _average Orange average 67.7%. it is that generally, 1952 assessments charged \And, “as plaintiffs’ properties, board, changed” by “are in excess of full and fair percentage value assessed other against properties same class.” | affirms that complaint plaintiffs “have been unable to ascertain reasons, method, what exactly basis or if any, was adopted” “in county board out singling plain- tiffs’ properties assessments”; increase in but it is that the action taken charged board “was compliance method,” statute or any statutory thereof,” rather “in direct violation and the increase of plaintiffs’ assessments “was intentional and violative of the principle practical assessment,” uniformity and “dis- criminatory, arbitrary capricious.” is further that allegation county board’s |There
“sole jurisdiction” to “direct an increase in assessment of in a specific district properties specific exists taxing only as a revision, of a part complete correction and equalization of assessed values of all the in a taxing district in order to tax value,” all and at full equally so the particular assessment increases constitute excess said, As power. just the constitutional principle invoked; is also in the equality urged complaint that “where it is secure impossible to both the standard of full value and the uniformity and equality required law, the latter requirement must be just as the and ulti- adopted mate law.” It is purpose also asserted that plaintiffs’ standard “are in excess of same assessed
properties being of East district of value of similar properties Consti- of the mandate of State Orange,” disregard tution. or effective, efficient there is a “prompt,
Denying pro- these review adequate” “except through administrative an “avail- declares that assuming ceedings,” complaint review,” justice require” “the administrative interests able forum recourse the administrative the rule of prior involved; issues relaxed of the constitutional be because (a) board, first agency,” “the administrative (b) acts; its own great would called to review upon (c) *7 testimony” incident and the “repetitious expense delay the tax (d) to of 30 individual appeals; prosecution the agen- as to the of administrative jurisdiction “doubts” statutes “under cies, its particularly power applicable the upon reduce the assessments on plaintiffs’ properties discrimination,” for administrative need ground law would on which expression “opinions questions of are review and which ulti- clearly be subject judicial Court.” mately questions of the is that the order of the
prayeT complaint the “corrections” and “revisions” county board directing as 1952 tax list “be vacated and set aside East Orange entered aceord- of plaintiffs, judgment рroperties ingly.” Jj Court,
In Law of the the action Superior Division L. Smith as a motion against was sustained Judge Joseph the failure jurisdiction predicated for want of on to dismiss administrative remedies. 21 asserted available to exhaust After filed J. 370 answer (1952). denying N. Super. of uni- violation of principle discrimination
pleaded overruled defendant’s motion for Judge Hughes formity, for lack of pleadings jurisdiction on summary judgment and for failure to invoke available matter subject there remedies, jurisdiction, and, if administrative moreover, is a state administrative since the board J. Hudson 135 N. L. 178 & County, (E. Warren v. agency,
337 A. 1947), the board’s action is to the appealable directly Appellate Division of Court under Rule 3 :81~ Superior 8, now R. R. It 4:88-8. was found that “the administrative uncertain, indeed, at best remedy not, if it is nonexistent sense,” and the rule for a practical direct providing is not 24 appeal N. J. 252 Div. applicable. Super. (Law The J. 1952). Division affirmed. 27 N. Appellate Super. J.N. (1953); Super. after (1953), reargument. there was that holding board is not em- by statute “to
powered remedy unconstitutionally dis- assessment, criminatory true value or less representing than true to the common level reducing assessments generally.”
The case came here by certification the instance defendant.
I hearing After on May court sua argument ordered sponte a reargument appeal September and directed that meanwhile ensuing, to the parties several causes their “complete take such pleadings, deposi- tions and make such should inspections” deem they and then to trial of the proper, proceed issues the Daw Court, Division either Superior or separately to- as the trial should think gether fit, to the end judge determination and argument ensuing “upon the appeals *8 merits, simultaneously the reargument” original and there was a remand for that appeal, purpose. causes before hearing Judge Accordingly,(the can^e,ontfor 12 and
Colie on and August there was 13Nfollowing; judg- ment “as to the and their vacating plaintiffs properties,” therein the order for the particularized, assessment increases the by made board on March county 1952, and reducing the several assessments as thus certified the “by amounts increases,” “reductions, the in case, of such each to be in- reductions” theretofore any clusive “granted by judg of the county ments” board 32 N. J. Super. (Law . 1954). Div.
Judge Colie admissions, the from the found depositions, “did attempt and the not board pleadings value, at true and did assess properties not еqualize ‘in the but fixed and the ‘revised corrected’ of true and this ratio of 50%,’” neighborhood 50% value in which the municipalities prop- “was used all the located”; under review were by erties affected the order fixed “in certain selected municipalities board or areas which the revisions corrections within geographical made,” were and “in it selected specific properties others “In instance did the Board treatment,” for the same no toj areas ‘re- make other than in the a of values study ” “those corrected,’ vised and other than changed,” work, their “the areas “wanted to limit” to which they locations,” merely then by apprais- hot spots, 100% such “would a give a “typical property,” ing section,” but which was not of values range throughout area,” and result for that “typical particular fact was an of assessments arbitrary particular increase like an in- all properties, properties,” “disregarding area, “all assessments within limited crease of disregarding district, outside that area” within all properties taxing It end a tax burden.” and in the “disproportionate of “true value” was also held that standard still obliga- But of the statute. the assessments made force tory by disturbed; the increases ordеred assessors were local board were set aside. taxation discriminatory We concur in finding show that proofs of constitutional principle. violative assessed the affected were municipalities all lands throughout to a common assessors ratio of according the local within the dis equality uniformity making trict; in selected areas confined arbitrarily and increases worked discrimi necessity fixed boundaries geographical be comparable properties immediately nation in respect Indeed, unreasoned and artificial line. border yond standards and discrimi consequent this resulted varying kind of like as between character properties nation *9 in the immediate the same and the vicinity, opposite side of streets the area of action. It was a course bounding of procedure at war with the basic of equality; principle and there ensued in the glaring disparities are now to be by that, excused for lack of sought plea funds, assessment a has become uniformity piece-meal proc- ess over a years. Members board period that, conceded on the witness in the chal- stand directing increases, the lenged board was not in exercise engaged function. “This was not an equalization equalization all,” one, said and others And program agreed.
the board’s revisions were confined to commercial and indus- trial properties.
Thus, assessment increases decreed by board nullify would set pattern equality local assessors medium a uniform ratio, assessment through and an undue tax burden lay upon the land- plaintiff owners—the certain of their admeasurement consequence arbitrary percentages formulae.!)
II We proceed to jurisdictional policy questions raised on the appeal. original
There is here a common pleaded remediable grievance from a tax now arising discriminatory visitation estab- lished its incidence and proofs, unequal oppressive burden; its in the treatment of the issues raised we are mindful is a to be judicial proceeding redress basic inequality apportionment of the violative constitutional We are charge, principle. not concerned here failures or omissions in the adminis- trative related process assessment of treat- inequality ment. an amendment to the 1844 State Constitution
^By adopted IV, VII, Article Section paragraph directed that “be assessed for taxes under laws, rules, uniform according to its true value.”'
340 stand statutes embodied the Accordingly, thejimplementing 120, 1918, L. 1906, 54:3-13; ard of L. c. R. true S. value. amended; 23, 236, 54:4r-l, 12, amended, c. R. as later also S. 1934, 54:3-17; c. 1934, 191, 191, L. R. L. R. S. c. S. 46, 47, 48. 1918, 236, 54:4-36, c. R. 54:3-18; S. L. Constitution, VIII, I, para- 1947 Article Section the Ij^But shall be “assessed for taxa- graph provides property 1, rules,” “All uniform and tion under laws and for real assessed taxed or the State locally and property shall be assessed allotment and districts payment The en- the same of value.” cited standard according unaltered in Yet the for cement statutes remain terms. is new mandate dominant constitutional principle And this was of of treatment and burden. equality One of essence of the old Constitution and spirit welL^ B. cited 8. provisions supra, statutory implementing taxation board to “secure the 54:3-13, enjoined ** n * value, in at its order of all ** * full, its all shall bear equal (taxable) a The standard of value is but just share of taxes.” is the Such uniformity equality. means of achieving the tax consideration distribution of preeminent burden. ratio was under assessment given recognition common value.” statutory
the old constitutional standard “true N. J. L. Collins, 1881); 43 562 Ct. (Sup. v. Stratton Pownell, 49 N. J. L. 169 Ct. (Sup. 1886); v. Appleget Co., 48 Assessors v. Central R. N. J. L. 146 Board State Dixon, And see the late Black’s & J. Justice 1886), A. (E. ed. New section 145. Jersey 1940), Taxation in (5th constitutional of a differ- provision radically And were clause import, equal protection ent tenor prevail, Amendment would right Fourteenth secured individual thereby “protects treatment equal him which selects out for discriminatory action from state him to taxes not on others imposed by subjecting treatment class”; “if he may complain equality the same taxes of other the same members of by increasing achieved own”; class to the level of his constitutional require- ment “is if not satisfied does not itself remove State discrimination, him whom the imposes against discrimination has been burden of seeking directed upward revision of the taxes class.” of other members of Cromwell, Hillsborough v. S. Township U.
S. 90 L. Ed. Ct. This latter found (1946).
to be the case in New under Co. v. Board Jersey Royal Mfg. J. Taxes, 76 N. L. 402 Ct. Equalization 1908), (Sup. *11 affirmed 78 J. L. 337 & A. that 1909), N. (E. holding are
county boards taxation of all obliged property secure value, at its true and a so assessed who is the taxpayer victim of taxation discriminatory may have equalization, assessment, not of by reduction his own proceedings to raise the class, assessments of other members of so, said Mr. case, Justice in “it Douglas Hillsborough is is the state plain remedy adequate protect n respondent’s rights under the federal Constitution.”
Earlier,
Taft,
Chief Justice
a
of view as
conflict
noting
to what
done
should be
where one or a few a
of tax-
of
class
at
are assessed
the full
value
payers
of their property,
a
in
accord
constitutional or statutory requirement,
and the rest of the class are
at a
intentionally assessed
much
law,
lower
violation
percentage,
of
declared:
right
taxpayer
“This
court holds
of the
whose
per
alone
taxed
100
is
at
cent of
true value
its
is to have his assess-
percentage
ment
reduced to the
of that
are
value
which others
taxed,
though
departure
requirements
even
is
from
of
principle
statute.
The conclusion is based on the
that where it
is
impossible
to secure both the
of
standards
the true
and the
uniformity
equality required
law,
requirement
the latter
is
preferred
just
purpose
to be
as
and ultimate
of
law.” Sioux
City Bridge
County,
441,
190,
Co. v. Dakota
260
S.U.
43 S. Ct.
(1923).
But that mathematical pre without saying goes is not for taxation cision the valuation of is imprac is it attainable. Absolute equality nor requisite, of the clause equal protection ticable. The design field, is related Amendment, particular Fourteenth discrimination, and intentional security against systemаtic right equality; thus to insure the substance of basic are not “There must be mere errors of judgment enough; which, effect, amounts to something more, something — prac the essential principle an intentional violation of Iron Lake Co. v. Sunday tical uniformity.” Wakefield 495, 63 L. S. 38 S. Ct. Ed. Township, U. County, Co. v. Dakota cited City Bridge Sioux
(1918); Coal v. Board To the same effect: Cumberland Co. supra. Assessments, Moines Revision Tax cited Iowa-Des supra; Bennett, National Bank v. cited supra. here is sustainable a proceeding course taken from the the redress plaintiffs’ grievances arising administrative assessing exercise of what in essence the certiorari, historic function the common-law process, review statute. upon although scope depends 1853); v. 23 N. L. 533 Ct. State Bentley, (Sup. State J. *12 Betts, Nunn, 34 N. v. v. J. L. 555 Ct. (Sup. 1854); Wyckoff v. 1877); Mayor 39 N. J. L. 433 Ct. Co. (Sup. Royal Mfg. L. N. J. 416 Rahway, Common Council 75 City and of of Traction County Ct. Trenton and Mercer 1907); (Sup. Taxation, 93 County Mercer Board v. Corporation of & J. L. 398 A. Gibbs v. Board 1918); N. State (E. of 371, Assessment, 101 N. J. L. 373 & A. (E. Taxes and R. R. Board Taxes 1935); Valley Co. v. State Lehigh 103 J. L. 576 Ct. Penn Assessment, 1936); and N. (Sup. Taxes and Assess Railroad Co. v. State Board sylvania 28 Phi ment, 103 N. J. L. Ct. Zeta Lambda 1936); (Sup. Brunswick, New 123 City Chi v. Alpha Fraternity L. Ct. Meltzer v. Tax 1939); N. J. Division (Sup. R. N. Ct. Vide 1946). J. L. S. Appeals, (Sup. 1953, 61, 51; 54:4-63, as 54:4-59; amended c. by L. 54:4— of 1953. also amended act 1947,
R. 54:4-46 and amended L. с. 54:4-47, S. “revise, and empower board to correct equalize” the assessed value “all in the property respective districts, increase value of or decrease assessed any valued,” assess omitted “at property truly property value,” its true and in “do for necessary everything the taxation of and its all county equally true value.” And action thus taken is reviewable on owner, certiorari at the instance of an aggrieved property for the of his even redress the adminis grievance, though trative exhausted, remedies have not if that course be been interest of essential Rule now justice. 3:81— R. R. 4:88-14. Vide Town Board Kearny v. State Taxes Assessment, and 103 N. L. 36 1936). J. (Sup. Ct. invoked here is treatment —relief
The right equal from taxation; what is and obviously discriminatory judi cial for the interposition may be had correction of discrimination. is the wrongful Such remedy sought the plaintiff owners, and treatment equalization of will redress fully wrong.
The landowners plaintiff also the statute com- urge mands the county value,” board to “fix assessments at true and since the board disobeyed “knowingly wilfully mandate,” order, its “for that reason, is a nullity.”
But, so, if that be then the assessments made original are local assessors likewise a and this would nullity; be untenable. The drastic of suсh a course are consequences readily Would perceivable. it not logically necessarily follow that all assessments in the given municipality vacated merely nonconformance with the standard of value,” “true now, directed reassessment three nearly event, years after when taxes have been quite generally paid transfers of made on properties the basis of the The local assessments? unchallenged alternative would be the invalidation of the laid plaintiffs; against and this in itself would be discriminatory. judicial *13 here power invoked is directed merely to the rectification of the tax forbidden and Federal inequality State as Indeed,
Constitutions. counsel concedes much asking assessment vacated and the assess- only increases be ments made the local assessors restoredZJ
The will not inequality work application principle in the tax burden apportionment county among B. The method 8. provided by districts. taxing aggregate inter-municipal 54:4-52 'securing affords means of Board County Totowa v. Passaic equality. Borough there is Taxation, 5 N. And like provision J. (1950). for the
for and inter-county parity apportion equivalence tax, tax ment on the state level of the school Stаte “State law,” or State moneys, provided by lately “calculation and of distributions apportionment pursuant 34, 54:1-33, Aid 1954.” R. to State School Act of S. 35; 18:10-29.48, 85, L. N. J. S. 18:10-29.30 1954, c. A. to and c. N. J. A. 54:1-35.1 to 54:1-35.5. By S. statute,
earlier the state is directed inquire to authority or full into and determine ratio “general percentage value real is county at which the within each taxation,” and a state assessed listed for to prepare to true table of ratables equalization according for the the act stated apportionment; director is to determine the “ratio enjoined of aggregate assessed of real of each valuation estate aggregate district,” and he “by make such determination taxing may he reference table whenever equalization satisfied that the table has prepared been according methods and and that reflects accepted practices properly true value or a known thereof for the several percentage in the districts table taxing county.” equalization thus is the mechanism for dis provided obviating statutory state taxes and distributions parity apportionment A due to local assessment ratios. assess common varying ment as we have insures equality ratio such here of burden within the district. This is truth. mathematical
If in its fails authority peremptory duty assessing then resort laws, under the Constitution be had to may Here, the remedies to the default. particular appropriate *14 345 we this is the redress the sustained injury by plaintiffs; us; we are not concerned only justiciable controversy before with administrative vital to that deficiencies no way inquiry.
This certiorari is a in the nature of to proceeding the undue discrimination suffered remedy plaintiff landowners, neither prays more nor less. complaint there be merely “corrections” vacating judgment and “revisions” 1952 tax of particular municipality’s list a directed board. Certiorari is common- law of mode review to correct errors of law apparent face of the record or inferior or judicial proceedings Brandon v. Board Com’rs quasi-judicial tribunal. Montclair, Town 124 N. J. 135 Ct. (Sup. 1940), L.
affirmed 125 N. J. L. 367 & v. Court 1940); A. State (E. Pleas, Common 1 J. 14 N. Mandamus issues to (1948). review, certiorari official or action. compel, judicial
West
& R. Co. v. Board
Jersey
Utility
S.
Public
Com
missioners, 85 N. J.
468
Ct.
affirmed 87
1914),
L.
(Sup.
N. J. L. 170
& A.
Beronio v. Pension Commis
(E.
1915);
Hoboken,
sion
130
620
A.
City
N. J. L.
1943).
(E. &
True,
the form
invoked cannot
remedy
serve
ordinarily
to relief
plaintiff’s
abridge
right
within the issues framed
sustained by
pleadings
Yet it is fundamental
proofs.
court of original
civil,
criminal or
at law
jurisdiction,
or
“сannot
equity,
asserted,
enter a
which is
the claim
or
judgment
beyond
which,
character,
in its essential
is not
to the
responsive
cause of action on which the
was based.” Sattel
pleading
353,
v.
14 N.
363
Ben
berger
Telep,
(1954). Compare
J.
Butterworth,
669,
nett v.
11 How.
The doctrine of res judicata operative only questions within the tendered issues save where pleadings, or waiver rule North consent otherwise. Carolina R. Co. v. 288, 531, 268 45 Ct. 69 L. 959
Story, U. S. S. Ed. (1925); States, 159, Ash Co. 252 40 Sheep v. United U. S. Ct. S. Estate,
241,
f_The denying summary judgment defendants on and the final pleadings, judgment vacating assessment increases made board, are accordingly affirmed; and the cause is remanded for action. conforming
Vanderbilt, C. J. The (dissenting). fundamental ques- tion on this appeal, which is of vital interest to citizen every in New Jersey, whether in New shall Jersey be assessed at true value in compliance with the numerous sta- tutes of this State or, as the requiring holds, majority plaintiff with all taxpayers them other (and shall citizens) relegated merely to of the Federal protection Oonsti- at true tution, assessment our statutes to leaving relating value as dead letters on books. us, not before law, facts, and the proceedings re- our statutes all dictate that public policy,
mention’sound the pending true value be applied assessment at lating to In doing intent. their and obvious case clear according the require- well with would, course, be complying so we discrimination Constitution, banning ments the Federal one, course, favors. which no at Pull Assessments Require Property
1. Our Statutes Value. tax- all that the plaintiff holds that opinion
The majority of dis- is the elimination us are entitled to before payers the point their taxes to them by reducing crimination against taxpayers other with those of are they equalized where the requirements accordance municipality Amendment to the Fourteenth clause of equal protection Town Hillsborough *16 as enunciated Federal Constitution Ed. 445, 90 L. Cromwell, 620, 66 S. Ct. 326 U. S. v. ship to in this case effect It declines give 358 (1946). and value at true
many requiring statutes that ground. relief on claim for plaintiffs’ the standard since 1875 deviation and without Consistently and still is law has been as laid down our for taxation difficulties It was to overcome at true value. assessment un- and unequal state of us in this are still plaguing which YII, IY, Article Section taxation that for fair assessments 1844: Constitutiоn added in 1875 to par. laws, by “Property under be assessed taxes shall according (Emphasis supplied rules, to its true value.”
uniform throughout) correspond- thereto to the All statutes passed pursuant (or Constitution, I shall refer to which the 1947 ing provision in due have level of the course) adhered at uniformly every taxing and state —to machinery municipal, county — standard of true value. level, at the N. that Starting local J. S. A. 54:4r-1 provides * * * * * *
“All shall property be to taxation subject value, al ils true and shall valued the assessors of the * *” * A. 54:4r-23 respective districts. N. J. S. taxing defines estate; the true value real the assessor requires to “determine of real parcel value of each full fair as, in property situated in the district at such taxing price sale his it would sell for at a fair and bona judgment, fide first next the date by private preceding contract on October By which the shall his assessments.” complete assessor A. annex to N. J. S. 54:4-36 each assessor is required his assessment list affidavit other stating among things: * * * “I, affirm) (or foregoing do swear list contains my ability, the valuations made me to the best of of all taxation liable to district in which I am assessor, it, partiality, and that I have valued without favor or value, price my judgment at its at such as in it would full fair by private sell fоr at a fair and bona sale contract on October fide * * last, first Likewise at level, we find county the county boards of taxation created expressly to “secure the taxation all prop- in the erty at Us true county value”: “Each board of taxation shall secure the taxation of all property, its true in order all except exempt law, full, equal such as shall be shall bear its
just sharei taxes.” R. S. 54 :3-13. The same standard of assessment at true value is imposed in the two specific modes of action authorized the statute for the county taxation, boards of first in appeals by ag *17 grieved taxpayers from local assessors the board county taxation, which is directed under N. J. S. A. 54:3-22 to “revise and correct the assessment in accordance with the true second, value the taxable and in property,” proceedings under N. J. S. A. 54:4r-47 on the county board’s own motion to correct assessments to true value: county may adjourn “The board from time to time in the dis-
charge duties, may, revise, investigation, of its after correct equalize property respective taxing the assessed value in of all districts, any property increase or decrease the assessed value of truly valued, property аssessment, any assess from- as omitted provided by law, value, everything true at its and in neces- do sary county equally for the taxation of all in the and at its true value.” It is under this last-mentioned section of the that statute present were taken. proceedings at
Similarly the state level who is “any appellant dissatis- may appeal from that Division of Tax judgment Ap- ** * fied with the judgment county board of taxation in peals the State Department of Taxation and Finance” and * * * on such “each proceedings petition appeal shall contain a general prayer that assessment be increased or decreased be) ease to the true value (as may thereof,” J.N. S. 54:2-39. A.
It is a difficult to conceive of standard assessment would be more more fair than standard of simple or assessment at true its simplicity yet notwithstanding these clarity and fairness constitutional statu- to assess at true directions to the authorities tory taxing value, it matter of knowledge common made real in this have not been State (cid:127)
valugj creating, among results, other untoward disparity burden of the taxpayers various with municipalities taxes, to their for even respect the explicit statutory the county directions to boards of taxation to equalize taxes between districts taxing as have for the most unheeded, R. S. 54:3-15 to part gone along most of provisions of tax supervisory the other statutes. Briefly, 54:3-15 the members requires R. S. county boards of far so inspect possible taxation properties districts and to “make their varying revision and cor- *18 R. S. 54:3—16 gives rection after such view and inspection.” and over the local “supervision the board control” county “shall, assessments, by in be assessors, governed who making as rules, may board county such orders or directions” Tax the State Commissioner. issue, by are first approved provided they of obtain . S. 54:3—17 19 states one method R to taxing total assessments as between of such ing equalization true value: districts to according county annually taxation shall and “Each board of ascertain de- according knowledge information, general
termine, its best to percentage property value at which the real of ratio or each of full taxing according is to the tax lists before district assessed laid prepare equalization showing table board. It shall assessed district, property per- in or valuation the real each the ratio hy any, centage, the assessed valuation which should be increased if valuе, correspond to or in order to true true decreased value by property copy district A of the real within the as determined it. district, each shall be mailed to the assessor of be of posted table courthouse, hearings pro- one week before the at the least (R. 54:3-17) S. vided in section of this title.” for 54:3-18 R. S. is provided by A for the interested assessors hearing R. S. 54:3-19 the 54:3-18, county equalization and then filed is directed table board as confirmed division the director of “the tax commissioner state [now the division of tax appeals the state board of taxation], [now and each district state comptroller tax appeals], county.” in the Tax (now the State Commissioner
The functions of process Taxation) equalization Division Director of statute: are set forth annually, receiving county after from the shall commissioner “The as last abstracts ratables certified taxation the such
boards of boards, inquire percentage determine ratio or into county property within each the real assessed value at which full taxation, prepare equalization and shall a state table for and listed showing per- county ratables, assessed valuation of real and county, percentage, any, property the ratio or if in each sonal each real should valuation of assessed which the correspond and the true or decreased be increased hy copy him. A determined real valuation of table shall be mailed to the board of taxation and director of county, comptroller, the board of freeholders of each and to the state posted house, days hearing at the and provided state at least ten before the 54:1-33) (R. section 54:1-34 this title.” S. annually Tuesday “The commissioner shall sit the second *19 July Trenton, purpose equalizing at his officein for the of the assess- hearing ments between the several At that counties. time a shall county given representatives be to the boards of taxation and of the purpose determining accuracy boards of freeholders of for the of the ratios and tme valuations as shown in the state of equalization table, and the commissioner shall confirm or revise such hearing may adjourned m table The accordance %oith the facts. time, equalization completed by August from time to but the shall be twenty-fifth. hearing any county may object At the first to the ratio any county, any or valuation of other but no in increase valuation giving hearing, as in shown the table shall be made without a after days’ county five notice to of the board freeholders of the affected.” 54:1-34) (R. S. prepare “The commissioner shall an abstract of the total ratables State, county by of the as returned boards of taxation cor by equalization rected or confirmed him in accordance with the State table, copy and transmit a certified thereof to the State Board Appeals, county Comptrol Tax ler, boards of taxation and the State apportion tax, who shall the State school State tax or State moneys, provided by law, upon as the ratables as shown in such abstract, place purposes which shall take the for all such by county annual abstracts heretofore filed in boards taxation Comptroller provisions the office of the under the of section 54 :4^-52 54:1-35) of this Title.” (R. S.
According to the records of Taxation, the Division of only a few counties true de- attempt equalization by increasing or creasing assessed among valuations districts yearly taxing (in 1952 Bergen Burlington; and Middle- Bergen sex; and in 1954 Middlesex, Bergen, Burlington, Passaic statute; as Warren) by the required equalization process within a letter, counties has been as much dead in operatiоn, as assessments at true value. Likewise from the appears the Division Taxation records of Director of he has a state table of rata- prepared equalization 54:1-33-34-35, R. as S. statewide required supra; bles has thus as dead letter in operation been much equalization within counties and the equalization process levying value in the municipalities. various of assessments rests not only of this situation discrimination The vice between taxpayers different municipalities with respect the burden within the same county, taxation in the that a standard of encouragement shifting valuation lends to the same munic- inequalities assessments within a matter later at ipality, of which I shall speak length. administrative in the breakdown enforcement standard of constitutional and statutory authorities of the value as taxes at true true value and in the equalization has the difficulties the statutes been facilitated required by a resort to the courts way heretofore placed Royal The crucial case is taxpayer. aggrieved Manufactur Taxes, 76 N. J. L. v. Board Company Equalization ing & A. 1909), J. 78 N. L. (E. Ct. affirmed 1908), (Sup. is not that a whose taxpayer was held where it to complain, standing value has no than true at more assessed Constitu- to the former аmendment the 1875 because under *20 value; accordingly, at true must be assessed tion all property of other tax- in favor against even if he was discriminated reduced, but rather assessment have his payers, he cannot assess- of those whose must seek to raise the assessments only not than his. This decision legalistic ments are lower amendment by placing of the 1875 frustrated the clear intent burden, he which an individual intolerable taxpayer on the the sheer ex- meet reason of possibly hope could a suit it suit, such brought even if he a but of such pense value assessment of his obtaining promise offered no which ignored decision This unfortunate for all taxpayers. era what ushered in the taxing process of the the realities came to be possibilities when its press the public The Commission “tax lightning.” called understood expressed but graphically euphemistically Tax Policy State :4) p. (1950;- in its Report situation existing Fifth (real tax estate and administration “The improvements) On the business side it is a matter of is a chaos. bargaining process years gentle over has or less a more conditions." insecure a host created ‘favorable’ This statement is documented with complete county by county tables in its Sixth Report (1953; At p. 30). 27 the pаge Commission summarized its as findings follows: Jersey average estate in New an assessed at assessment IQ'Real per basis, ratio of 34 cent of its value. On this the State-wide average per rep- tax rate of $6.77 $100 valuation taxable in 1952 average per resents an effective tax burden of $2.30 of full $100 value. average vary among The estimated assessment ratios Jersey per County New counties from a low of 16 cent in Ocean high per County. a of 56 cent in Hudson Six of the State’s 21 average counties show estimated assessment ratios above the over- average per (Hudson, all State-wide of 34 cent and three of them Passaic) average Essex and show estimated assessment ratios above per extreme, (Ocean, Burling- cent. On the other four counties ton, Salem) average Sussex and show estimated assessment ratios per of under 20 cent. among municipalities ranges The variation as individual from average per estimated assessment ratios under 10 cent in seven municipalities per municipalities.” to over 60 cent in two ( Its conclusion (p. seems 133) inescapable: money people “Never has so much been raised so so from maim
inequitably inas the current administration the local taco on real estate.” Here we have conclusions of fact documented of com- by years petent study by official commission that we afford cannot ignore consideration of such vital issues.
In case, the Hillsborough 326 U. S. 66 S. Ct. supra, 445, the tax collector of small New Jersey community total assessed all per valuations for both real and property, sonal, $3,139,020, levied assessments in the amount of $221,940,438 to an upon intangible property belonging *21 individual a trust she trustee. resident and to of which pay- This assessment would have resulted in additional tax $7,000,000 with nearly per year compared ments of $97,000, an annual out- township’s approximately budget “tax which had become lightning” preva- instance of rageous In that ease the United lent in various State. parts Court, seemed more aware of which Supreme States 354 and political
economic realities of courts, taxation than our criticized the correctly Royal deci- Manufacturing Company failing sion for to accord taxpayer to protection which he was entitled under the Federal Constitution: protection equal pro- “The clause of the Fourteenth Amendment tects the individual from action which state selects him out for dis- criminatory by subjecting imposed treatment him to not taxes right equal right others of the same class. is The to treatment. may complain equality by increasing He not if is achieved the same taxes of other members class to the level of his own. The requirement, however, constitutional is if a not satisfied State does discrimination, imposes against not itself remove the on him seeking whom the discrimination has been directed the burden upward revision of the taxes other members of the class. City Bridge 441, County, 445-447, Sioux Co. v. Dakota 260 U. S. * * 190, 191, 192, *; 43 S. Ct. L. Ed. 67 340 Iowa-Des Moines Bennett, 239, 247, 133, 136, Nat’l Bank v. 284 S.U. 52 S. Ct. ; L. Ed. 265 Cumberland v. Board [of Coal Co. Revision Tax Assess ments], 23, 28-29, 48, U. S. S. Ct. 76 L. Ed. The 146. Jersey long courts of New in a line of decisions have held that a taxpayer discriminatory singled may who has been out for taxation equalization by not obtain reduction of his own assessment. His remedy against proceedings is restricted to other members of his purpose having class for the their taxes increased. The rule was Mfg. Royal Equalization Taxes], stated in Co. [of v. Board * * N. J. L. J. L. affirmed 78 N. as follows: required property boards are to secure taxation of all at its value; property so that the fact of A is at assessed taxpayers its true value and the of other within the same ground district assessed is below its true A no affords demanding valuation, though a reduction of his him does entitle apply L., for an increase in the valuation of the 76 N. J. others.’ pages 404, plain 405. On that rule the basis of it is the state remedy adequate protect respondent’s rights under S., pages (326 623-624, federal Constitution.” U. 66 S. atCt. page 448.) Had courts our same and the applied the same reasoning case, requirements proof Royal the 1875 amendment would statute have been com- implementing quickly plied authorities. of law before us is now whether court question
will the clear and man- consistently repeated statutory ignore assessment at true value or direct date for the their defendants solemn perform duty assessing *22 at The relief property against inequality value. Amendment requires
assessment secured Fourteenth assessment to the taxpayer’s the reduction of the aggrieved this is a departure level of assessments “even general though statute,” Sioux City Bridge from requirement [state] 441, 446, 260 U. County, Co. v. Dakota S. S. Ct. supra, must 190, 192, give Ed. and that we and should L. case, under the state court may
effect to Hillsborough so when its statutes direct not content itself merely by doing here, insist at true value and the plaintiffs, all lived to. being up By assessing property on statutes law both state only by doing- at true value—-and so —can It with. is the complied and the Federal Constitution be proper discharge by courts to require of our duty law their to both the obligation authorities of clear assessing Constitution, not to condone and the Federal this State law New Jersey. their violation Leaves the Statutes Requiring 1947 Constitution
2. The at True Value in Full Force and Assessments Properly Effect!} hereinbefore all statutes parties
It is conceded under the Constitution of in full force remain quoted would have us board of taxation defendant yet its mandate, as I understand position, their ignore the 1947 Constitution which tax provision the new basis and which reads as follows: amendment the 1875 supersedes general “Property laws and for taxation under be assessed shall locally property or real assessed and taxed uniform rules. All taxing payment districts shall he for allotment State value; according and such real to the same standard assessed taxing general district tax rate taxed shall be situated, such district.” for the use of in which the (Art. VIII, I, par. 1) Sec. that it is for the doubt (1) It is clear beyond'the slightest and to prescribe laws to enact alone Legislature rules referred the uniform or authorize the prescription into the quoted constitutional provision, and (2) it has *23 done in so retaining the books the statutes assess- requiring ments oi at property true value and in not any substituting other standard. That, indeed, is conceded majority cited (“The enforcement statutes remain unaltered in but from terms'”), the use of the “in terms” and the phrase failure majority’s value, to force give to standard of true I take it to mean that the full value statutes are to remain as unused and ineffective as heretofore.
The tax defendant board contends that the domi- nant of the new constitutional mandate as to principles taxation are of treatment and does equality burden, but not the standard of assessment at true value— legislative standard the only has Legislature prescribed provide — Indeed, of treatment and equality burden? what standard could do so more than assessments at true value? effectively
The defendants the standard of value is but a urge means of is it achieving uniformity equality, but for the decide how these shall be Legislature objectives achieved and what standard of values? And has not in an series unbroken of statutes Legislature prescribing local, the duties of and state officials fixed the taxing value true value and true standard of at value alone? This whole resolved this court question only two years e., in assessments at the i. statutory standard, аgo requiring Deleware, Hoboken, & value, true in L. W. R. v. City Co. 10 N. J. 433: Legislature upon constitutional restraint is “The when enact ing property. for the assessment the two classes statutes The Legislature has enacted the same standard of value for both. Tax receipts property from the assessment of Glass II in derived rail paid taxing road use are allotted to and over the local districts property situated, receiving each which such district property amount of tax derived from the assessment of such total N. within the district. J. S. A. 54:294.-24. situated standard prescribed by property N. A. of assessment of such J. S. 54:294-17 employed by Director is ‘true value.’ This is the identical locally prescribed assessment of assessed standard for the lands Neither nor R. 8. the Director the local local assessors. 54:4-1. any authority respective has assessor but to malee the compliance statutory provision true applicable value in with the to him.” The defendants ignore holding argue common assessment ratio was given under the recognition old constitutional and standard of statutory the cases they cite have to do nothing with the taxation of which concerns every citizen. They relate to such special classes of stock, bank Stratton Collins, v. 43 N. J. L. 562 Ct. (Sup. 1881); and ¶. railroads, State Board Co., Assessors Central R. N. J. L. 146 (E. & A. 1886); Pownell, v. Appleget N. J. L. 169 Ct. (Sup. 1886), contrast with which it is Delaware, to be noted that &L. W. R. Co. Ho- City v. *24 boken, ais clear supra, of this court to the holding contrary two only years merely deals with the ago, taxpayer’s right to a of writ certiorari and has to do with nothing standards.
The defendants would the limit action of this to court the doctrine case, of the Hillsborough being as con- supra, sistent with its views of our constitutional past present and statutory provisions. One cannot quarrel with the decision of the case Hillsborough under the Fourteenth Amendment, but the Hillsborough ease itself re- its paid in no spects uncertain terms to the earlier decisions of our courts in such fashion as to arouse us to their shortcomings. The are Taxpayers Seeking to Force the Plaintiff
3. Taxing Authorities to Assess at Full They Value and (cid:127) Are Entitled to Such Relief. The assert in their plaintiff taxpayers not complaint only their undoubted to of treatment under right equality the Fourteenth Amendment and the Hillsborough case, also their to assessments levied at true in right value accordance with our Constitution and the statutes. paragraph ^Thus of the complaint sets forth in full the requirement our Constitution that real be assessed to the “accоrding value,” same standard of and the following paragraphs referred herein statutes from the various pertinent quote Divi- The Appellate full value. at assessments requiring the issue of that Court recognized Superior sion it stated: it when at full was before assessment value * * * * * * charging “Respondents, complaint filed a * * * accomplishment resulted, not in the increases bring statutory of all the taxation about mandate equally county at its in district or * * Super. 28 N. J. 110. The under presented point defendant board of taxation that al- its brief in court its contention 4 of original had set forth that board though complaint the increased assessments accordance levy failed Constitution, still Jersey New requirements Delaware, L valid, assessments were utterly misconstruing Hoboken, J. 418, . R. 10 N. City (1952), W. Co. v. was a the constitutional supra, provision holding officials. to the assessing mandate to not Legislature course, the matter under briefed taxpayers, plaintiff it extensively brief and 10 of their original argued point reargument point the oral On the argument. caption: tax board’s brief bore following County can correct to the “The Board revise and municipality percentage revise full and need not value used percentage has been value where such correct full 100% applied by making his assessments.” the local assessor *25 while was entitled: plaintiffs’ answering argument County to fix “Our statutes command the Board assessments knowingly wilfully disobeyed true value. The Board this man- nullity.” order, reason, date. Its is a for both sides. question argued to asserted have all plaintiffs right matter; an assessed at true value is not administrative it is a matter substantive and we highest are degree sustained fully injuries redressing plaintiffs merely by enjoining discrimination in assessments. The plaintiffs are entitled to have all assessed at true value, because otherwise the evil consequences out pointed by the State Tax Policy Commission are inevitable. (supra) It is difficult to achieve enough assessment at but when various scales of of true percentages values rang- as we have ing seen from less than to over (at 10% 60% the oral argument counsel for the county tax board frankly stated that there is one with an municipality assessment ratio of to true are value) employed by local assessors 8% without warrant of thereof, law or any publication citizen has no average yardstick to him in guide determining whether his assessment inis line with his neighbor’s. He is working the dark as an in the compu- essential.factor tation his tax. The very existence of suсh unknown of true value as percentage the basis of assessment inexorably leads to discrimination and the very lack of which equality the majority that, would banish. Worse than it leads to what the State Tax Policy Commission and with tactfully rare “a restraint calls matter more or less gentle bargain- ing that over process years has created a host insecure the matter conditionsPutting bluntly, ‘favorable’ that many means have obtained tax favors at the expense others, means not It disclosed. also means that many others are afraid to their appeal assessments under existing the Royal case for fear of retaliation. This is not a situation that should be permitted once it is prevail brought the attention of court of It jurisdiction. creates law, a rule not but of favoritism. The difficult art of assessment rendered impossible accomplishment.
I can conceive of no issue more important for decision or loudly adjudication, more our nor can I crying .imagine any sound reason for not the issue. dire con- deciding No would flow from sequences existence recognizing statutes assessment at true value and commanding giving effect to them. partial of all property not, course, would be a as the nullity, majority thinks; the assessments would be increased to full simply value.
360 in the absurd put
Our courts are not and never have been must affirm or a deny judgment; where either they position many of a is a familiar solution modification of judgment well be that it would be impossible It appeals. may 1952 untoward enforce statutes for the without year these results, but is an annual occurrence process the taxing fand should directions to the court can give their of to avoid a violation repetition authorities do for the taxes in It can and should so statutes question. 1, the tax are assessed October 1954 for which to be the taxes to assessed in all subse- 1955 and also for be year a course in with familiar would be accord years. Such quent This, said, is as we have a in proceeding principles lawT^ actions, adminis- a writ. lieu of Such prerogative though reasons the Law on for historical in Division proceed tered Keenan, Thus in Ward v. 3 N. J. principles. equitable said: 309 we (1949), practice determining new “In what course to under xDursue procedure look to on
in this field we should the decisions the old light prerogative writs, controlling authorities not as but for what may they problem presenting sound rules throw on the instant may examining light gained procedure. from Much also be becoming practice analogous equitable procedure, in for it is cases increasingly clear, granting writ has now that discretion applicable abolished, principles two been the xu'ocedural many respects fields are identical.” judicial well known Among equitable principles guiding decree. action is the rule that will not make a vain equity should “Decrees that would in the final result be nugatory Fiedler, Inc., Co., Inc., 129 made,” Finance v. Coast order N. J. & A. 1941). Manifestly, Eq. (E. for the made in summer reassess true value County Essex year process all —a take necessarily many upset would months —would completely county, and of the taxing machinery municipalities if indeed data for such reassessment for 1952 were available, doubtful. reason but only which is Not interfere with the current seriously also because it would taxation, board such an order would work of the *27 the On and vain decree. an ineffective indeed to be prove trial the authorize hesitate to hand, should not other we to to conform taxation board of county court to direct full at assessments statutes requiring all of pertinent years. 1955 and all subsequent value for the year order the court to instruct the trial I would ^Accordingly, to take Taxation Board of County defendant Essеx the year it that the assessments to see to necessary steps true value of made at are 1955 throughout with 54:4r-23, in accordance 1954, R. October S. of tax duplicates approve any statutes and not to
pertinent of true the basis are on assessors that not prepared the local reason is every 54:4-47. .There 5é:4r-35, R. R. S. S. Taxation would Board of the Essex County to believe the few it is one of because such instructions welcome the direction equal made any steps that has tax boards not only deprive action we If we not take such ization. do im real of very relief a basic right on private litigants the will flaunting them but we will be to portance mode any furnished anyone being without Legislature value for assessment the acts relief and providing It can the statute book. dead letters on would continue as subjected are now assessors who many doubted that not be relief welcome would pressures and personal to political assessments the courts directing direction of therefrom and municipal magistrates as the just police at full value traffic viola which the nonfixable in the rejoiced protection what has But in the light gone them. ticket afforded tions cannot be expected the assessors in this for years, State at true value assessments the statutes directing conform to to Indeed, were this court. direction from without explicit assessments on levy them to to any proceed their districts face of this court’s studied refusal the true value countenance statutes would they be deemed recreant local custom of assess- danger being ment at some undisclosed under true percentage valuej
Nor should fail in their plaintiff taxpayers pursuit at full value reason the niceties of any writs at procedure surrounded use of prerogative common law and that abolished Constitution were new and the rules was adopted thereto. It to avoid pursuant such technicalities that in the Constitution provided of 1947: “Prerogative superseded and, review, thereof, writs are in lieu
hearing Superior Court, and relief shall be afforded in on terms provided Supreme Court, and in as of manner rules of right, except in criminal causes such shall dis where review ' cretionary.” par. VI, V, Art. Sec. 4. I I affirm the would below instructions judgment *28 the trial court herein indicated.
I am authorized to state that Mr. Justice Brennan joins in this opinion. /dor Hei-ier, Oliphant, Wachen- affirmance —Justices Burling
eeld, and Jacobs —5. For Justice Vanderbilt and Justice Brennan - 2 modification —Chief MACKLER, DEFENDANT-APPELLANT, BENJAMIN v. THE CAMDEN, BOARD OF EDUCATION OF THE OF CITY RESPONDENT. Argued October 1954 Decided November 1954.