| N.J. | Nov 5, 1919
The opinion of the court was delivered by
Some time prior to December 21st, 1916 (the exact date not appearing), the relator purchased certain lands in Jersey City on which taxes were in arrears. On the day mentioned, the relator desired to pay the taxes, and did so; but for the years from 1903 to 1912, inclusive, the city collector, although receiving the principal and interest at the rate of seven per centum per annum, from the 20th day of December of the year of the levy down to the time of payment, refused to receipt; the tax bills in full or to cancel the assessments on his boots.
On July ,20th, 1917, the relator obtained this rule to show cause why a, mandamus should not issue commanding the cancellation of the taxes. Just why the matter was not brought up in this court for argument more promptly does not appear.
IVe are of the opinion that the writ should issue.
The reason for the collector’s refusal was his notion that he was entitled to demand ten per centum interest per annum.
But that, notion was erroneous. The rate prior to 1903 was ten per centum under an act approved February 5th, 1878 (Pamph. L., p. 12; Comp. Stat., p. 5176, pl. 198), but that act was superseded by the General Tax act of 1903, which expressly repealed all inconsistent laws.. Pamph. L. 1903, p. 435, § 66.
The rate of interest'for taxes in arrear for the years in question — we are not here concerned with the Tax act of 1918 (Pamph. L., p. 847) — is regulated by section 43 of the General Tax act of 1903. Comp. Stat., p. 5126. It provides that
The defendants contend that relief should be denied because of “a lack of diligence on the part of relator and its predecessor in title to the disadvantage of the city.”
We see no merit in the contention.
With respect to the argument that the city was prejudiced by reason of the fact that some of the individuals who served upon the various boards of finance (the governing body) from 1903 to 1913 are now dead, it is sufficient to say that we think that it is immaterial, in a legal sense, in view of the fact that so far as appears in the state of the case there was no pretence that the governing body at any time had fixed any higher rate than seven per centum, nor was there any proof or attempt to prove any such action.
But it is contended that if the relator, or its predecessor in title, “had made its demand seasonably, the city could have acted and protected itself with respect to future years,” and hence the relator should be denied relief.
We think that contention must be decided adversely to the city. In Ford Motor Co. v. Kearny, 91 N. J. L. 671, the town had furnished water to the premises for some three years on the order of the tenant, without the landlord’s knowledge. The court said that it was the duty of the town, under the facts of that ease, to shut off the water after the first bill was unpaid. In the case in hand, it was the duty of the city under the Tax law to advertise the land for sale, and had it done so, making a claim of interest" at ten per cent., the landowner would have been apprised of this unfounded claim and could have resisted it successfully. We are unable to perceive how a landowner by simply permitting taxes to accumulate can be deprived of his rights, nor how delay in payments can authorize the addition of an unauthorized penalty. He knows what the statutory penalty is, and, as to
Since there has.been a full hearing on the rulo to show cause, a peremptory writ of 'mandamus should issue, with costs.