City of Newark v. County of Essex , 80 N.J. 143 ( 1979 )

The opinion of the court was delivered by

Mountain, J.

The City of Newark brought suit against the County of Essex, seeking reimbursement for overtime payroll expenses for police and firemen incurred by Newark during riots which took place between September 1 and 14, 1974. The trial court found in favor of the plaintiff and entered judgment in the amount of $425,511.67. 144 N. J, Super. 566 (Cty. Ct. 1976). On appeal the Appellate Division reversed, holding that plaintiff had failed to establish a cause of action. 160 N. J. Super. 105 (App. Div. 1978). We granted certification. 78 N. J. 333 (1978).

The resolution of this issue requires a careful analysis and interpretation of the Mobs and Riots Act, N. J. S. A. 2A:48-1 to 48-7.

The fundamental purpose of this statute is to provide reimbursement from public funds for property damage suffered by individual property owners due to riots. The first section of the enactment, N. J. 8. A. 2A:48-1, places the obligation for such reimbursement upon the municipality where the riot occurs, provided “it has a paid police force.” Otherwise the obligation is that of the county in which the disturbance takes place.

Perhaps because of the potentially heavy exposure, the statute imposes a series of protective conditions which must be met before a claimant becomes entitled to payment for damage he has suffered.

In the first place, recovery is limited to $10,000 for the “aggregate of damage ... at each separate location.” N. J. 8. A. 2A:48-1. Furthermore, to the extent that a property owner has insurance protection he may not recover, at least to the extent he is reimbursed by his insurer. Id.; Green v. City of Newark, 61 N. J. 460 (1972). ETor may an insurer exercise any right of subrogation. N. J. 8. A. 2A :48-l.

Secondly, the statute of limitations is very short. An action must be brought on a claim “within 3 months after the loss of or injury to the property.” N. J. 8. A. 2A:48-2.

Further, if

. . . the destruction of or injury to the property was occasioned or in any manner aided, sanctioned or permitted by the negligence of the claimant, there shall be no recovery. Nor shall a recovery be had unless the claimant used all reasonable diligence to prevent the destruction or injury. . . . [A. J. S. A. 2A:48-3]

Thus the claimant must affirmatively establish not only that no negligence on his part contributed to the damage, but also that he exerted himself in every reasonable way to avert the destruction or injury.

Finally, the claimant must give timely notice to a designated public official of the threat to his property. The pertinent portion of the enactment reads,

Nor shall a recovery be had unless the claimant .... shall have, immediately after being apprized of a threat or attempt to destroy or injure his property by a mob or riot, notified the mayor or chief executive officer or chief of police of the municipality or the sheriff of the county, as the case may be, of the facts brought to his knowledge. [A. J. S. A. 2A :48-3]

Several things are clear. The Legislature intended, at least to a limited extent, to reimburse property owners for damage or injury to property caused by mob violence or riots. Relief was to be made available from public funds. If the disturbance were to occur in a municipality with a paid police force, then that municipality would be required to bear the expense. Absent a paid police force, the obligation was to be that of the county. Finally, as is set forth above, only those claimants who met and fulfilled the conditions we have enumerated could recover.

It is with this legislative scheme before us, that we consider the particular statutory provision upon which Newark relies in its action against Essex County. It reads as follows:

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.

[N. J. 8. A. 2A:48-4]

This statute will be seen to have a rather limited application. It has nothing at all to do with making payments directly to property owners whose property has been damaged. Rather, within limitations to be discussed, it affords a municipality a right to indemnification from the county. It directs that certain public officers be reimbursed by the county for certain expenses to which they may have been put. These expenses are limited to those incurred “in the performance of any duty hereby imposed.” The only vduty” to which this can refer is that set forth earlier in the same statutory provision, to “take all legal means to protect the property attacked or threatened.” And this duty comes into play only “. . . upon receiving the notice . . . .” The “notice” is that set forth in N. J. S. A. 2A :48-3 quoted above. Here the City claims that one or more of the officers named in the statute had the required notice, although it was apparently not conveyed by, or on behalf of, any particular property owner. Newark points out that the mayor himself was present shortly after the disturbance commenced and was thereafter kept informed of all developments. We agree that the notice requirement must not be interpreted so technically as to defeat the purposes of the legislation. We intimated as much in A. & B. Auto Stores of Jones St., Inc. v. Newark, 59 N. J. 5, 29 (1971). See also Note, “Compensation for Victims of Urban Riots,” 68 Colum. L. Rev. 57, 70 (1968). There is sufficient evidence in the record to support the trial court’s factual finding that the City had “actual notice of this threat.” 144 N. J. Super, at 575.

However, we read the statute to require at least some correlation between the particular property threatened and the expense of protecting it. It is only with respect to such an outlay that the county may be called upon for reimbursement.¹ The duty imposed by the statute, N. J. S. A. 2A :48-4, cannot be read as being any more extensive. Here there is a complete failure of proof that expenses were devoted to the protection of any particular property — even proof of the most generalized nature.

Our reading of the statute substantially accords with that of the Appellate Division when it observed that

[w]e 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. [160 N. J. Super. at 110]

Another ground upon which the Appellate Division rested its decision in favor of the County was that, when read as a whole, the Mobs and Riots Act makes no provision for county reimbursement to any municipality having a paid police force. Newark, of course, has such a force. We neither adopt nor reject this argument, noting only that it is persuasively presented and is not without appeal.

The judgment of the Appellate Division is affirmed.

1 This case does not require us to decide whether the City of Newark is, or might be, entitled to alternative or supplemental reimbursement from State funds under the provisions of the Emergency Services Act of 1972. L. 1972, c. 133, codified at N. J. S. A. 52: 14E-1 to 10. We, therefore, express no opinion on this issue.