Opinion
Submitted October 14, 1932 —
Decided July 27, 1933.
1. Relief by the prerogative writ of certiorari is discretionary, and equitable considerations should guide the court in the exercise of the discretion.
2. Where proceedings by a municipality, eventuating in a tax sale, are attacked, and the amount of the assessment is not challenged, certiorari will be allowed upon condition that the amount of the assessment is paid, and security given for the unpaid interest at the minimum rate allowed to be imposed by statute, the right to charge interest being one of the grounds of challenge.
On rule to show cause why a writ of certiorari should not issue.
Before Justices PARKER, LLOYD and HEHER.
For the prosecutor, Joseph H. Carr.
For the respondents, Howard Ewart.
Lands of the prosecutor, situate in the respondent municipality, were sold for unpaid taxes amounting to $5,527.29, assessed for the year 1928. The borough was the purchaser. On February 23d 1932, it filed a bill in Chancery praying the foreclosure of the prosecutor's right of redemption. The latter, on March 15th, 1932, filed an answer challenging the validity of the sale. This was followed by the present application, on July 7th, 1932, for a writ of certiorari to bring up the proceedings relating to the sale. Pamph. L. 1925, p. 480.
The prosecutor contends that the sale was invalid for the following reasons, viz.: (1) It was for a sum which included interest not authorized by law; (2) six parcels were sold as one; (3) the description was insufficient "to identify the land sold, or to notify the public of what was to be sold, or to enable a purchaser to procure a good title;" and (4) there was no "legal record of the proceedings leading up to the sale or of the sale itself."
Relief by the prerogative writ of certiorari is discretionary, and will be controlled by the public interest. Daniel B. Frazier Co. v. Long Beach, 110 N.J.L. 221 ; 164 Atl. Rep. 278; Johnson v. Board of Embalmers, 107 N.J.L. 380; Cavanagh v. Bayonne, 63 Id. 176; Marcus v. Graver, 71 Id. 95; Allen v. Freeholders of Hunterdon, 72 Id. 116; Bowne v. Logan, 43 Id. 421. In the last mentioned case, Mr. Justice Magie said: "The writ of certiorari, however, being discretionary, may be refused when it appears that the public interest will suffer or private injustice will be done." In the award or refusal of the writ the courts exercise a most liberal discretion. Even where prejudicial errors are apparent it will be refused if great public inconvenience will result from its issuance. 5 R.C.L. 254. Equitable considerations should guide the court in the exercise of the discretion. Loomis v. Union City, 6 N.J. Mis R. 330; 141 Atl. Rep. 170; Roediger v. Drain Commissioner, 40 Mich. 745; 5 R.C.L. 255; Inhabitants of Marblehead v. County Commissioners of Essex, 71 Mass. 451. In the case last cited, Chief Justice Shaw said: "Undoubtedly the application to the court for a certiorari is an application to the discretion of the court, and therefore, to some extent, its exercise will be governed by equitable considerations in determining whether a writ of certiorari shall issue, although, when granted and the proceedings are returned, the question is, whether they are legal or erroneous."
In the instant case the assessment is not challenged. The full amount of the tax assessed is concededly due. There is controversy, however, as to the interest charge. The rate demanded was eight per cent. The prosecutor insists that there was no resolution of the governing body of the respondent municipality fixing the interest rate, and that, therefore, an interest charge could not lawfully be made. Section 603 of the Tax act of 1918 ( Pamph. L. 1918, p. 873) fixes the maximum rate of interest for the non-payment of taxes at nine per cent. and the minimum at seven per cent. Under such circumstances, the prosecutor, as prerequisites to the allowance of the writ, should pay to the municipality the amount of the taxes confessedly due, and give adequate security for the payment of interest thereon at the minimum rate prescribed by the statute. Compare Keokuk Hamilton Bridge Co. v. Salm, 258 U.S. 122; 42 S.Ct. 207; 66 L.Ed. 496.
Without passing upon the merits of the questions raised by the prosecutor, or the claim of the respondents that the writ cannot be allowed after the expiration of the statutory period of four months, even though the application is made within that period, we have reached the conclusion that the writ may issue, if the prosecutor shall pay to the municipality, within thirty days, the full amount of the assessment, and shall also, within that period, give security for the payment of interest thereon at the minimum rate of seven per cent.; otherwise, the application will be denied, with costs. If the parties cannot agree, application may be made to the court to fix the amount and settle the form of the security.
Certiorari allowed upon terms.