City of Newark v. Essex County

• Decision Date: 07 June 1978
• Citation: City of Newark v. Essex County, 388 A.2d 1311, 160 N.J.Super. 105 (N.J. Super. App. Div. 1978)
• Parties: CITY OF NEWARK, Plaintiff-Respondent, v. COUNTY OF ESSEX et al., Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 105

160 N.J.Super. 105

388 A.2d 1311

CITY OF NEWARK, Plaintiff-Respondent, v. COUNTY OF ESSEX et al., Defendants-Appellants.

Superior Court of New Jersey, Appellate Division.

Argued May 16, 1978.

Decided June 7, 1978.

Charles P. Cohen, Asst. County Counsel, Newark, for defendants-appellants (Peter G. Stewart, County Counsel, Newark, attorney).

John C. Pidgeon, Asst. Corp. Counsel, Newark, for plaintiff-respondent (Salvatore Perillo, Corp. Counsel, Newark, attorney).

Before Judges HALPERN, LARNER and KING.

The opinion of the court was delivered by

LARNER, J. A. D.

In an opinion reported at 144 N.J.Super. 566, 366 A.2d 727 the trial court decided that the County of Essex is liable to the City of Newark in the sum of $425,511.67 for reimbursement of expenses incurred by the city for overtime pay to police and firemen for services rendered in connection with riots occurring between September 1 and 14, 1974. The legal basis for the city's claim is derived from N.J.S.A. 2A:48-4, a section of Article I of Chapter 48, entitled "Mobs and Riots."

This section provides:

2A:48-4. Protection of property; expenses

The mayor or officer or sheriff shall, upon receiving the notice, take all legal means to protect the property attacked or threatened. The expenses incurred by any of such officers in the performance of any duty hereby imposed shall be paid by the county treasurer of the county in which the property is situate, upon the approval thereof by a judge of the county court of such county.

In construing this statute as a component part of the entire article, the trial judge sitting without a jury made a factual determination that a riot or series of riots took place in the City of Newark over the period of September 1 to 14, 1974 in which there ensued damage to private property. The evidence in the record amply supports this finding. And as we view this appeal, our consideration of the propriety of the judgment turns upon the meaning and intent of the aforesaid legislation and its applicability herein.

As far as we can determine there has been no other litigation between a municipality and a county in this State under this section of the act and no judicial expression relating to the right of reimbursement from a county for expenses incurred in riot protection. ¹ By the same token, there are no available aids by way of legislative statements or other historical material which might reveal the purpose or intent of the Legislature in adopting this particular section of the act. We therefore undertake to analyze this provision in the context of the overall chapter dealing with "Mobs and Riots" in order to arrive at a rational legislative purpose and intent in authorizing recovery of incurred expenses by "the mayor or officer or sheriff" from "the county in which the property is situate."

It is undeniable from the historical development of this legislation and its very terms that the statutory section in question cannot be viewed in isolation. It must be construed as but a part of Article I (N.J.S.A. 2A:48-1 to 7) which creates a cause of action against certain governmental entities for property damage caused by a riot.

As noted in A & B Auto Stores v. Newark, 59 N.J. 5, 12, 279 A.2d 693 (1971), this legislation was initially adopted in this State in 1864 (L.1864, C. 150 at 237-239), patterned after similar statutes in New York and Pennsylvania. ² The act of 1864 did not contain a provision relating to recovery of expenses from the county, but in substance included all the provisions relating to property damage recovery which have been carried down in the legislation to date.

It was not until 1903 that the Legislature amended section 7 of the 1864 act to include a provision for the recovery of expenses by a mayor or sheriff from the "county collector" upon approval of the court. Significantly, however, that provision was incorporated in a single paragraph # 7 which covered in substance multiple aspects of the legislation as presently contained in N.J.S.A. 2A:48-3 and 4. The amendment of 1903 read as follows:

7. No person or corporation shall be entitled to recover in any such action if it shall appear upon the trial thereof that such destruction or injury of property was occasioned, or in any manner aided, sanctioned or permitted by the carelessness or negligence of such person or corporation; nor shall any person or corporation be entitled to recover any damages for any destruction or injury of property as aforesaid, unless such party shall have used all reasonable diligence to prevent such damage, and shall have notified the mayor of such city, or the sheriff of such county, immediately after being apprised of any threat or attempt to destroy or injure his or their property by any mob or riot of the facts brought to his knowledge; and upon the receipt of such notice it shall be the duty of such officer to take all legal means to protect the property attacked or threatened, and the expenses incurred by said officer in the performance of his duty as aforesaid shall be paid by the county collector of the county in which said property is situate, upon the approval of the judge of the court of common pleas of said county. (L.1903, C. 159 at 243)

The act remained in this form until the general revision of the New Jersey statutes in 1937 (L.1937, C. 188 at 832) when the revisers deemed it appropriate to modify the language and subdivide the sections of the legislation in a different manner. R.S. 2:63-1 to 9. As a consequence former section 7 became R.S. 2:63-5 and 2:63-6, with the latter section containing the substance of current N.J.S.A. 2A:48-4. The correlation between sections 5 and 6, however, was maintained by the cross-reference in section 6 to the "notice mentioned in section 2:63-5." Interpolating this cross-reference into our current statutes, N.J.S.A. 2A:48-4 would read "The mayor or officer or sheriff shall, upon receiving the notice (mentioned in section 2A:48-3) take all legal means to protect the property attacked or threatened. The expenses incurred by any of such officers * * * ."

In the final compilation in 1939, R.S. 2:63-5 became N.J.S.A. 2A:48-3 and R.S. 2:63-6 became N.J.S.A. 2A:48-4. The latter section no longer contains a specific reference back to section 3, and there are some minor changes in language which are not significant on the issue at hand. It is manifest, however, that the latest revision and consolidation, edited by West Publishing Co., was not intended to modify the meaning or content of the Revised Statutes of 1937. As the Preface to N.J.S.A. points out: "New Jersey Statutes Annotated (cited N.J.S.A.) conforms exactly in text and arrangement to the Revised Statutes of 1937." ³

From the foregoing legislative history it is unmistakable that the section 4 (N.J.S.A. 2A:48-4) provision for expense reimbursement is but a corollary of the duty of the mayor, chief executive, chief of police or the sheriff to "take all legal means to protect the property attacked or threatened upon receiving the notice from the claimant (property owner) as required in section 3 (N.J.S.A. 2A:48-3)."

It would thus appear that the reimbursement provision does not come into play unless the conditions of section 3 have been invoked, I. e., where a property owner has notified the sheriff or local officer of a threat or attempt to destroy or injure his property and such officer has expended moneys in protecting that property.

We cannot ascribe to the Legislature from the foregoing statutory language the intention to grant to a municipality a right to reimbursement from the county for All expenses incurred in controlling or quelling a riot. In the absence of clear and unequivocal language in the statute, we find no justification in reason or logic to expand the limited legislative provision for reimbursement to the individual officer who undertakes the emergent duty of protecting a particular piece of property after the requisite notice into a general right of reimbursement to the municipality for its police and fire-fighting expenses incurred in quelling a riot. See Wells Fargo & Co. v. Mayor of Jersey City, 207 F. 871, 875 (D.N.J.1913), aff'd 219 F. 699 (3 Cir. 1915).

Just as ordinary police and fire protection is an expense which must be borne by the taxpayers of the City of Newark, so must the expenditures for such service be borne by the city taxpayers when occasioned by a riot or riots in that municipality. In the absence of a clear legislative mandate it is inappropriate to shift that expense to all the taxpayers of the county.

The record fails to present evidence of the section 3 preconditions to reimbursement for expenses, for there is no showing that there was any particular expenditure for protection of a resident's property after notice of a threat to destroy or injure the same. In fact, the city's case was premised simply upon a showing that there was a riot, that property in general was damaged, and that the city paid overtime wages over and above normal expenditures to police and firemen engaged in varied activities required to quell and control the riot and its aftermath.

Included in these activities were efforts to "quell" the riots, avoid injury to persons, provide protection of public and private property, undertake general police activities involving detection and prevention of crimes and arrest of offenders fight fires in various sections of the city and perform all other functions normally undertaken by police and firemen. Absent from the record is any evidence of the causal connection between any expenditure and the protection of one or more specific private properties pursuant to notice from claimants whose statutory action to recover relates to "destruction of," or "injury to" private property, real or personal. N.J.S.A. 2A:48-1. Unless the expenditure is by the mayor or chief executive officer or chief of police in protecting a particular property pursuant to...