State v. City of Orange

The opinion of the court was delivered by Collins, J. By “A general act concerning taxes,” approved March 19th, 1891 (Gen. Stat., p. 3344), repealing all inconsistent general, special and local acts, it was enacted as follows: [194] “Section 6. * * * All real estate shall be assessed in the township, ward or taxing district in which the same may be situated; where the line between two taxing districts divides a farm or a lot owned or possessed by the person taxed, the same shall be taxed, if occupied, in the taxing district in which the occupant resides, and if unoccupied each part thereof shall be assessed to the owner thereof in the taxing district in which the same may be, and this whether such division line be a township, ward or county line.” By “An act relating to the assessment of taxes in counties of the first class,” approved May 9th, 1894 (Gen. Stat., p. 3449, pl. 779), it was enacted: “Section 1. That in all the cities, towns, townships, villages and boroughs in counties of the first class of this state it shall be lawful for the governing authorities to have maps made of their several and separate municipalities for the purpose of making the assessment for taxes upon real estate and to describe thereon the said real estate by blocks and parcels.” By “An act in relation to assessments of taxes in cities, towns and townships,” approved May 22d, 1894 (Gen. Stat., p. 3450, pl. 787), it was enacted : “1. That in all cities, towns and townships of this state that now have or may hereafter have block-maps it shall be the duty of the taxing officer or officers in all cases, in making their assessments for taxes upon real estate, to describe the same by block and lot numbers as shown upon the assessment maps of such city, town or township.” It is admitted in this cause that both Orange and East Orange have block-maps covering the entire territory of such municipalities respectively, and it is contended for the defendant that a true construction of the acts of 1894 will work a repeal of the provisions of the act of 1891 and require an assessment in each municipality, and not elsewhere, of the land within its limits. We cannot assent to this construction. We think that, as to assessment of taxes, the acts of 1894 extend only to property lawfully assessable by the particular municipality, and that the act of 1891 still controls as [195] to property bisected by a division line. That act was, indeed, superseded by an act approved March 28th, 1895 (Pamph. L., p. 748), but, by repealer approved March 26th, 1896 (Pamph. L., p. 180), the former law was revived and has thence been in force. It is next contended for the defendant that, as to urban property, the term “ lot,” in a taxing law, should not be held to extend to every separate parcel of land in one ownership, but should be held to denote such a parcel as, in the particular locality, is commonly considered a lot, and that the local tax-maps may afford a guide in that direction. We are referred to no adjudged case so holding and cannot adopt so arbitrary a rule. The term “lot,” as used in the act of 1891, is indefinite. What is a lot within that law is a question of fact to be determined as under the original Mechanics’ Lien law and other statutes, by all the circumstances of the case. Derrickson v. Edwards, 5 Dutcher 468; Muller v. Bayonne, 26 Vroom 102. In the case last cited the prosecutor owned a plot of land extending about five hundred and sixty feet along a city street and being about one hundred and fifty feet in depth. The property comprised a dwelling-house, a barn and other outhouses and the surrounding grounds. In assessing for a sewer the commissioners, under a law requiring them to assess “ each separate lot or parcel of land,” divided the property into twenty-five-foot lots, presumably by the city map. This court for that and other reasons set aside the assessment. Mr. Justice Dixon said that such an expression in a statute denotes each lot or parcel of land which its owner or possessor applies to or designs for a separate use. The test, therefore, is to be gathered from the intention of the landowner, as evinced by his acts, and not from the theories of the public authorities. On the other hand, we should not rule that the absence of a boundary fence or other physical division will show conclusively that a tract of land must be considered as one lot for the purpose of taxation, or that even a homogeneous use will enforce that consideration. Each case must be judged by its circumstances. [196] The general policy of our law favors the taxing of all property where situate. State, Colwell, pros., v. Abbott, 13 Vroom 111. Any exception to this normal rule of local taxation must be made clear by the one who claims it. In the case in hand the several prosecutors have in each municipality an ample curtilage for a dwelling-house or other structure, with a.frontage on an improved street with urban characteristics. It is reasonable to regard the property as in two parcels — one iu each municipality. The case made in the stipulation above recited is, in our judgment, consistent with that view, and, with the possible exception of Mr. Potter’s land, is not consistent with any other view. Mr. Potter’s acquiescence in separate taxation, in 1896, must be held satisfactory evidence that he then regarded his land, for the purposes of taxation at least, as in two parcels. There was like acquiescence by Mrs. Robinson and Mr. Gebhard. No intervening change in the situation or use of the property is claimed. We think that none of the property has been brought within the exception of the act of 1891. The attempt of East Orange to tax the lands in Orange need not embarrass the prosecutors. The case shows that such lands were in each case separately assessed as a “ rear lot.” The description was a true one and the • assessment, defeats itself. The taxes assessed by the city of Orange will be affirmed. Costs will not be imposed upon the prosecutors. They were doubly assessed, and judicial decision in the premites was necessary. We call attention, for the purpose of disapproval,.to the, erroneous practice adopted in this case, as in other recent cases, of joining in one writ separate and distinct interests. Mullins v. Jersey City, 32 Vroom 135. Such practice has probably arisen from a misconception of the fifty-eighth rule of this court, which provides that “ in matters of taxation not more than four prosecutors shall be joined in one writ of certiorari.” This rule is restrictive, not permissive. .There must be a common grievance to warrant any joining of prose [197] cutors not co-owners of property. Erroneous assessments of particular lands in different ownership, even though in each case the alleged error is of the same character, will not warrant the joining of the separate owners as prosecutors in one writ.