13 A.2d 479 | N.J. | 1940
The State Board of Tax Appeals was invested with jurisdiction to entertain the appeal taken from the judgment of the Bergen County Board of Taxation. The conceded jurisdictional lack did not make certiorari the exclusive remedy.
The question is, after all, one of statutory construction; and we read the statute as clothing the State Board of Tax Appeals with appellate cognizance of a judgment of a county board of taxation coram non judice. Section 54:2-35 of the Revision of 1937 provides that "Anyaction or determination of a county board of taxation may be appealed for review to the state board of tax appeals under such rules and regulations as it may from time to time prescribe, and it may review such action and proceedings and give such judgment therein as it may think proper." And section 54:2-39 prescribes that "Any appellant who is dissatisfied *38 with the judgment of the county board of taxation upon his appeal, may appeal from that judgment to the state board of tax appeals by filing a petition of appeal to the board," and so on, "and the state board shall proceed summarily to hear and determine all such appeals and render its judgment thereon as soon as may be."
These provisions are all inclusive. The language does not reveal a purpose to exclude judgments void for want of jurisdiction. The ruling principle is contained in Williamson
v. Middlesex Common Pleas,
Holding also that certiorari afforded a concurrent means of review, Mr. Justice Reed continued (at p. 396): "In cases where jurisdiction over the subject-matter is wanting, it is equally important that the right of appeal should exist. The question whether jurisdiction does or does not exist, is often one of great nicety. If certiorari should be the only remedy where jurisdiction is absent, and appeal the only remedy where jurisdiction is present, the determination of the party in adopting the appropriate method of review, would be attended with great perplexity. If he took his writ, and it appeared that jurisdiction was present, his writ would be dismissed, with costs. If he took his appeal, and it appeared that jurisdiction was absent, he would then be defeated. Again, the question of jurisdiction may be one of several legal questions involved in the cause. Upon certiorari, the only question reviewable is that of jurisdiction. Upon appeal, if allowed, all questions can be reviewed, both of law and of fact." And, as was further observed, the contrary view would strip "the Court of Common Pleas of much of its usefulness as an appellate court." See, also, Wheeler and Wilson Manufacturing Co. v. Carty,
The cases of Shrewsbury v. Merchants' Steamboat Co.,
In fact, the respondent Water Company seems to concede that these remedies are concurrent. Asserting that the appellant municipality, by the appeal, "elected to have a retrial on the merits," and "is bound by that election," it is argued that, when the unsuccessful party in the tribunal of first instance "conceives that that court lacked jurisdiction to do what it did, he may elect not to stand on that ground but to appeal and re-try his case on the merits," and that "if he wishes to stand on that ground and to reverse the judgment for lack of jurisdiction, he must proceed by certiorari," and "conversely, if he seeks only a review on the merits, he must proceed by appeal" — citingTraphagen v. Township of West Hoboken,
If, for lack of jurisdiction, the County Tax Board could not lawfully proceed to hear and determine the cause on the merits, so also was the State Board of Tax Appeals under a like disability. In the absence of a clearly expressed legislative purpose to the contrary, that would seem to be axiomatic. Mr. Justice Reed dealt thus with the question in Williamson v.Middlesex Common Pleas, supra: "Inasmuch as the jurisdiction of the Court of Common Pleas is co-extensive with that of the justice's court, whenever a matter is not within the cognizance of the latter court, it cannot receive the consideration of the former. The course is to dismiss the appeal, i.e., the action being heard upon appeal." The term "appeal" is regarded as having a double significance — i.e., "to designate the act of lodging the action in the appellate court," and also "the action itself, when in the appellate court."
The judgment is accordingly reversed, and the cause remanded for further proceedings in conformity with this opinion.
For affirmance — HETFIELD, WELLS, RAFFERTY, JJ. 3.
For reversal — THE CHANCELLOR, PARKER, CASE, BODINE, HEHER, PERSKIE, DEAR, WOLFSKEIL, HAGUE, JJ. 9. *41