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Oughton v. Board of Fire Commissioners

Decided: May 7, 1979.


Haines, J.s.c.


The central question raised in this litigation is whether paid fire departments may be created by fire commissioners in fire districts or whether such power resides exclusively in municipal governing bodies. The issue is one of state-wide interest and first impression. It requires the interpretation of statutes covering fire departments, as to which legislative intent is far from clear. The suit also raises a number of peripheral issues involving fire department meetings and expenditures.

The complaint names Moorestown Township Fire District No. 1 and its commissioners as defendants. Injunctive relief is sought to restrain the payment of compensation to various persons and to prevent alleged violations of the Open Public Meetings Law. The Dover Township Fire Commissioners were permitted to intervene; they seek declaratory relief as to their right to pay compensation to fire department personnel. The New Jersey State Association of Fire Districts and the Jackson Township Board of Fire Commissioners No. 2 have filed amicus curiae briefs.

The entire Township of Moorestown is composed of two fire districts, defendant District No. 1 being created in 1886. Its board of fire commissioners controls fire protection and prevention activities within the district through its fire department, composed of the members of two volunteer fire companies, using buildings and equipment owned by the district.

The officers of its department who receive compensation, and the annual amounts sought to be paid to them are: Chief -- $2,000; Assistant Chief -- $1,500; Deputy Chief -- $250; Captains -- $200; Engineers -- $1,170, and Custodians -- $1,170. The fire commissioners seek total salaries of $2,700. In the coming year the commissioners propose the employment of an administrator whose salary and related expenses would total $15,265.

The minutes of the fire department indicate that District No. 1 has paid compensation to some officers for many years; in 1893 it paid a Superintendent of Alarms $12 a year, and in 1950 salaries were paid to the Chief, Custodians and Engineers. Moorestown's governing body has never adopted an ordinance creating a paid or part paid fire department or establishing paid positions in the fire department. Past salary appropriations have been included in the fire district's annual budget, submitted to and approved by its voters, not as a separate line item but lumped with other expenses under the title "administration."

The intervenor, Dover Township Fire Commissioners, is composed of all of the commissioners of the two fire districts which encompass Dover Township in Ocean County. They operate under a Mutual Services Agreement authorized by N.J.S.A. 40A:11-10 and pay salaries to four full-time fire dispatchers, eight part-time fire dispatchers, two secretaries, five CETA employees, an auditor, an attorney and certain fire inspectors. Each fire district also retains an auditor and an attorney.

Numerous fire department personnel from other municipalities testified to practices in their fire districts, providing information as to practical interpretation of fire district statutes. It is apparent that practices are far from uniform. Franklin Township pays only for clerical services. Cherry Hill Fire District No. 3 pays a fire marshal, a clerk and six persons, who jointly perform maintenance, administrative and firefighting assignments. The clerk is paid by the fire commissioners, all others by the volunteer fire company in

the district which owns the firefighting equipment and contracts with the commissioners to provide fire protection, its budget this year being $275,000. Cherry Hill Fire District No. 4 pays two attorneys, one stenotypist, five persons for general work, a fire marshal and a deputy fire marshal; some are paid by fire commissioners and some by the volunteer company which owns all of the firefighting equipment except one ladder truck owned by the commissioners and leased to the company. The fire marshal is paid an annual salary of $18,000. Cherry Hill Fire District No. 5 has four full-time employees who handle fire prevention, equipment maintenance and clerical chores, all being paid by the fire commissioners. Hamilton Township Fire District No. 3 employs four drivers; they are paid by the commissioners, who also own the equipment and building. The chief of the department performs its clerical work without compensation. In the Oldbridge Fire District the building and equipment are owned by its volunteer companies, while the equipment on the fire trucks is owned by the commissioners. The district has a fire marshal, paid by the township, and two three-man maintenance committees paid by the commissioners. In some years the commissioners pay the companies for janitorial services. In Gloucester Township Fire District No. 2, there is only one volunteer company. The fire commissioners own five vehicles and the company three which are leased to the commissioners, who pay an apparatus engineer, an assistant engineer and a clerk. In Delran Fire District No. 1 a clerk, a fire marshal, two assistants and a treasurer receive compensation.

A. What Is a Paid Fire Department?

References to "paid" and "part-paid" fire departments appear throughout the statutes, e.g., N.J.S.A. 40A:14-7, 9.1, 41, 42. No definitions are provided. The defense argues that the statutes relating to "paid" departments apply only to those which pay persons for fighting fires, and claims

that all compensation paid to personnel of their departments is paid for administrative work only. The statutes do not make the distinction for which defendants contend. Furthermore, the activities of their paid personnel are not so readily categorized. In Moorestown, for example, the chief is responsible for overall tactical direction relating to the prevention and extinguishment of fires; he attends almost all drills. The assistant chief undertakes special assignments for the chief and supervises the engineers, who inspect, clean and keep fire-ready all apparatus. The captains are responsible for the operation of the fire companies. Custodians maintain the firehouses. Most of these persons are involved as well in direct firefighting activities. Any effort to define "firefighting", without express statutory direction, must fail. It is apparent that the person who drills others in firefighting techniques, who inspects buildings for fire hazards, who sounds the fire alarm, who readies the equipment for use, and who maintains firefighting records, is as much involved in fighting fires as the person who holds the hose or wields the axe. The definition of "fire department or force" in N.J.S.A. 40A:14-55 as "the officers and members organized to fight fires in the municipality" indicates no distinction between administrative and firefighting personnel.

Furthermore, no distinction can be drawn, for present purposes, between a "paid" and "part-paid" fire department. "Part-paid" denotes a department in which some, but not all, of its personnel receives compensation. However, when we are considering statutes restricting the creation of paid departments, it is apparent that no line can be drawn between those departments which compensate all their members and those which compensate only some; if the contrary were true, conditions imposed by the Legislature could be avoided by paying all members but one of a given department. That cannot have been intended.

Consequently, I conclude that defendants Moorestown and Dover, both of which are paying some of their personnel, have paid fire departments as the term is used in the statutes.

B. Are Boards of Fire Commissioners Autonomous Bodies with Respect to the Creation and Operation of Paid Fire Departments?

Defendants, as they must if they are to sustain their position, separate the statutes dealing with fire protection into two groups, one covering municipal fire departments and the other covering fire districts, and argue that the authority given to the districts and their commissioners make them autonomous. They emphasize N.J.S.A. 40A:14-81, which provides that "commissioners of a fire district shall have the powers, duties and functions within said district to the same extent as in the case of municipalities, relating to the prevention and extinguishment of fires and the regulation of fire hazards." In addition, they point to N.J.S.A. 40A:14-70, which provides in part that the board of commissioners of the fire districts shall be a body corporate and "shall have the power to acquire real and personal property for its purposes. It may adopt and use a corporate seal, sue or be sued, and shall have such powers, duties and functions as are usual and necessary for said purposes." In addition, they note that N.J.S.A. 40A:14-82 refers to "the board of commissioners of a fire district having a uniform paid or part-paid fire department," thus acknowledging the existence of paid departments in fire districts. They could point to the change in the description of the general powers of commissioners from the old statute to the new. In N.J.S.A. 40:151-27, now repealed, fire commissioners were given "all the rights and powers, within said fire district, which shall have been conferred upon townships by any statute relating to the prevention of fires and regulating fire hazards to life and property." N.J.S.A. 40A:14-81 gave commissioners powers in fire matters "to the same extent as in the case of municipalities," thus possibly broadening their powers by referring to all municipalities and not only to townships. Standing alone, these statutory references are persuasive support for the defense position. However, they do not stand

alone and related legislation weighs heavily in the opposite direction.

Interpretation of this legislation is aided by rules of statutory construction. The statutes relating to fire protection must be treated in pari materia.

While the rule most obviously applies when the statutes in question were enacted during the same session or went into effect at the same time * * *, or where they make specific reference to one another * * *, it may appropriately be applied even when the statutes were adopted in different times and make no reference to each other * * *. [ Mimkon v. Ford , 66 N.J. 426 (1975)]

All of the laws significant to this litigation were adopted together, in 1971. Single sentences in those laws are not the guiding lights; the court is to consider the whole act and legislative policy, as well as statutes in pari materia. Coast Cigarette Sales v. Long Branch , 121 N.J. Super. 439 (Law Div. 1972). The statutes to be construed here deal with the tax powers of fire commissioners; salaries must be raised by taxation. Consequently, they are subject to rules of strict construction.

In the interpretation of statutes levying taxes, it is the established rule not to extend their provisions, by implication, beyond the clear import of language used, or to enlarge their operations so as to embrace matters not specifically pointed out. In case of doubt, they are to be construed most strongly against the government, and in favor of the citizen. [ Gould v. Gould , 245 U.S. 151, 38 S. Ct. 53, 62 L. Ed. 211 (1917), cited with approval in Kingsley v. Hawthorne Fabrics , 41 N.J. 521 (1964)]

These approaches to interpretation require an examination, not only of the statutes which are stressed by the defense, but also of all statutes relating to fire districts and municipal fire protection powers.

Notwithstanding the broad language of N.J.S.A. 40A:14-81, the Legislature has adopted other laws which provide in express language for the revenues which may be raised by fire commissioners in fire districts and set forth the expenditures for which those revenues may be used. In N.J.S.A. 40A:14-70, quoted above, the fire commissioners are said to constitute a body corporate having "the power to acquire real and personal property for its purposes. It may adopt and use a corporate seal, sue and be sued, and shall have such powers, duties and functions as are usual and necessary for said purposes." The only "purposes" for which this language provides authority is the acquisition of real and personal property; it would not advance defense arguments and would not be logical to conclude that "purposes" relates to the use of a seal and to the power to sue and be sued. In N.J.S.A. 40A:14-72 the legal voters of the fire district are to "determine the amount of money to be raised for the ensuing year" at the annual fire district election. Nothing here describes the purposes for which money may be raised. In N.J.S.A. 40A:14-79 the commissioners are directed to certify the amount of money voted at the annual district meeting to the assessor of the municipality, who then assesses that amount against the taxable property within the district. The monies thus produced are to be paid to the treasurer of the fire district, "to be held and expended for the purpose of providing and maintaining means for extinguishing fires in said district." N.J.S.A. 40A:14-80 permits the commissioners to borrow money in anticipation of the receipt of the revenues appropriated at the annual election "for current expenses and necessary repairs to fire apparatus and fire houses within the district * * *."

Both N.J.S.A. 40A:14-79 and 80, insofar as they describe the purposes for which fire district monies may be used, are dependent upon other sections of N.J.S.A. 40A:14 authorizing the appropriations which may be submitted to the voters at the annual district election, ...

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