On July 12, 1947, plaintiff's chickens of the value of $43.53 were destroyed by dogs, and plaintiff thereupon submitted a claim, substantiated by two freeholders, to the defendant municipality for the amount of his loss. The governing body of defendant municipality refused to approve payment of the claim upon the ground that the municipality was not legally liable for the loss and was not authorized by law to pay the claim.
Hence, plaintiff seeks a declaratory judgment:
"(a) To the effect that the defendant is legally liable for the loss suffered by him through the killing of his chickens.
(b) That defendant may legally pay plaintiff's claim for loss out of license fees and other moneys collected by it under the provisions of The Rabies Control Act."
In determining this matter it is necessary to consider two statutes, namely,
The Dog Tax and Liability Act of 1922, being R.S. 4:19-1 to 4:19-9, comprising Article 1 of Chapter 19, of Title 4; and
The Rabies Control Act, being Chapter 151 of the Laws of 1941 (R.S. 4:19-15.1 to 4:19-15.29).
Under article 1 of chapter 19 of Title 4 of the Revised Statutes municipalities are liable to make good losses sustained
by any person by the destruction of his poultry (R.S. 4:19-4), and provision is made for the method of presenting and establishing claims for damages (R.S. 4:19-5); it is further provided that the municipality may maintain an action against the owner of the offending dog to recover the amount of damages allowed by the municipality to the person whose poultry was destroyed (R.S. 4:19-6). However, this article (R.S. 4:19-1 to 4:19-9, inclusive) does not apply to municipalities wherein the running at large of dogs is restrained or regulated by ordinance. R.S. 4:19-1, second paragraph.
It is conceded that the above act was not in effect in the defendant municipality at the time plaintiff's chickens were destroyed, for the reason that the Township of Moorestown, on May 10, 1943, adopted an ordinance regulating the running at large of dogs. See Lamanna v. Kennedy , 130 N.J.L. 223, 32 A.2d 446 (Sup. Ct. 1943).
P.L. 1941, chapter 151 (R.S. 4:19-15.1 to 4:19-15.29), repealed article 2 of chapter 19 of Title 4 of the Revised Statutes (R.S. 4:19-10 to 4:19-15, inclusive), but did not repeal article 1 of that chapter. P.L. 1941, chapter 151, known as "The Rabies Control Act," provides, generally, for the licensing and regulating of dogs and dog kennels by a municipality. Section 11 (R.S. 4:19-15.11) of the act sets forth that the license fees and other moneys ...