
    THE SINGER MANUFACTURING COMPANY v. JAMES MORRISON, TREASURER OF THE CITY OF ELIZABETH, ET AL.
    Submitted June 10, 1903
    Decided November 9, 1903.
    By force of tlie act of March 28th, 1895 {Pamph. L., p. 760), where an assessment is reduced by the state board of taxation on the application of the taxpayer, interest must be paid on the sum fixed by the state board from the time of the original assessment until it is paid, at the rate of ten per centum per annum. The general law of 1878 {Pamph. L., p. 12), which applies to all cities, controls the rate of interest.
    On application for mandamus.
    
    Before Justices Van Stckel and Fort.
    For tlie Singer company, Be Witt Van Buskirk.
    
    For tlie city, G. Addison Swift and Frank Bergen.
    
   The opinion of the court was delivered by

Van Stckel, J.

This is an application for a writ of mandamus, commanding the city treasurer of Elizabeth to accept the sum of $33,628.11 in full payment of the taxes assessed against the real and personal estate of the said company for the year 1902.

It is agreed that the principal sum of said taxes is $32,856, to which it was reduced on appeal to the state board of taxation, and that the Singer company, on the 5th of March, 1903, tendered to said city treasurer the aforesaid sum, with interest thereon at the rate of six per cent, from the 20th of October, 1902, to March 10th, 1903, amounting to $33,628.11.

The city treasurer refused to accept said sum, but demanded interest at the rate of ten per cent, from October 20th, 1902, to March 10th, 1903.

By the charter of the city of Elizabeth taxes are payable on or before October 20th in each year.

• On the 14th of March, 1903, the 'said company' paid to the city treasurer $32,000 on account of said taxes without prejudice.

The question in the case is whether the relator should pay interest at the rate of six per cent, or ten per cent, on the, taxes falling due October 20th, 1902.

The charter provision of the city of Elizabeth is amended by the act of 1878 (Pamph. L., p. 12; Gen. Stat., p. 3395), which imposes interest at the rate of ten per cent, upon unpaid taxes in all cities.

The act of March 11th, 1895 (Pamph. L., p. 260, §§ 1, 2), provides that where an appeal is made to .the state board of taxation and the tax is either reduced or increased, the party whose tax has been reduced or increased shall have thirty days from the date of the signing of the order by the state board in which to pay the corrected amount of tax without any additional interest or penalties on such amount adjusted or ordered by the state board.

This act does not forego interest on the sum found due up to the date of correction by the state-board, but gives thirty days to pay without additional interest, nor does it repeal the act of 1878, giving interest at the rate of ten per cent.; it simply arrests the operation of that act and the running of interest for thirty days.

The legislature passed another act on the 28th of March, 1895 (Pamph. L., p. 760), amending the General Tax act of 1891, which provides that where complaint shall be made to the state board, in writing, by any person or corporation aggrieved at the assessment of taxes on his or its property, the said board shall have power to review and correct the action of the local assessors by reducing such assessment; such review and reduction may be made of any assessment thereafter to be made or any assessment which shall have been made within one year before the filing of the complaint for the review and reduction of the same; and all assessments so reviewed shall bear interest from the time fixed by the law under which said assessments were originally made and levied until paid upon the amounts so fixed and determined by said board.

This act of March 28th, 1895, repeals the first section of the act of March 11th, 1895, so far as the latter act gives thirty days without interest.

The act of March 28th, 1895, makes the tax as reduced by the state board subject to the payment of interest from the time fixed by law, under which the assessment was originally made, on the amount found to be due by the state board until it is paid.

The only law as to interest on this tax is the act of 1878, before referred to, which makes tire rate ten per cent, per annum. The subject of interest being dealt with in a tax act, it must be presumed,- in the absence of any language indicating a contrary intention, that it related to the law as to interest, which applies to overdue unpaid taxes.

The usury law does not apply to taxes and there is no act declaring that in this case the legal rate of interest, as fixed by that act, shall apply. ' •

In Rellstab v. Belmar, 29 Vroom 489, the Supreme Court construed the provisions of the Borough act in connection with section 1 of the act of 1888 (Gen. Stat., p. 3359, pl. 368), making taxes a lien after December 20th together with lawful interest thereon accrued.

Lawful interest was held to be six per cent., there being no statute relating to townships and boroughs fixing any greater lawful interest prior to sale and redemption.

. In the present case the act of 1878 declares that ten per cent, shall be lawful interest in all cities on taxes in arrears. Any other construction will enable delinquent taxpayers to arrest the running of the ten per cent, penalty by simply appealing to the state board, thereby practically defeating the object of the act of 1878.'

The tender in this case was not made until March 5th, 1903, and then the full amount due was not tendered, and therefore it had no effect upon the running of interest.

The city .is entitled to the sum to which the tax was reduced by the state board, with interest at ten per cent, from October 20th, 1902, to the time of payment, allowance to be made to the company for the sum which has been paid to the city treasurer.

The mandamus is denied, with costs.  