The opinion of the court was delivered by
Plaintiff hospital appeals from summary judgments entered in favor of defendants City and County of Camden. We affirm.
Plaintiff sued the city and сounty for hospital care and medical treatment rendered by it to Bishop McKie (McKie) and Miguel Pesante (Pesantе), two persons injured by the police in the course of their apprehension. During his stay at the hospital, McKie died intestate with no assets. Pesante has absconded. The complaint asserts an obligation of the city and county to pay fоr medical care provided to McKie and Pesante under the provisions of the Fourteenth Amendment to the United Statеs Constitution. The issue raised by plaintiff has been ruled upon by the United States Supreme Court in City of Revere v. Massachusetts General Hospital, 463 U.S. 239, 103 S.Ct. 2979,
[A]s long as the governmental entity ensures that the medical care needed is in fact provided, the Constitution does not dictate how the cost of that care should be allocated as bеtween the entity and the provider of the care. That is a matter of state law. 463 US. at 245 [103 S. Ct. at 2983],
We have previously concluded thаt there is no obligation on the part of the city and county to pay for such medical care and treatment in a similar action brought by the same plaintiff. Cooper Medical Center v. Johnson, 204 N.J.Super. 79 (Law Div.1985), aff'd o.b. 208 N.J.Super. 38 (App.Div.1986). In our opinion affirming the Law Division in Johnson, we stated:
Whether the observation of the United States Supreme Court in Revere v. Massachusetts General Hospital, 463 US. 239, 245, 103 S.Ct. 2979, 2983, 77 L.Ed.2d 605 (1983) that ‘[i]f, of course, the governmental entity can obtain the medical care needed for a detaineе only by paying for it, then it must pay,’ is considered to be dictum (as Judge Talbot believed and as we think it is) or not, the fact is that that situatiоn was not here present. Accordingly, we need not here decide the particular issue. [Id. 208 N.J.Super. at 39]
In the instant case, plaintiff again relies upon the quoted language from Revere for the same purpose, and our conclusion in Johnson dictates the same result. That situation is not here present. Except for one additional contention made in this case, disposition of it is governed by our decision in Cooper Medical Center v. Johnson, supra.
The additional argument made here is that the circumstances constituted a taking of private property for public use, without just compensation in violation of N.J. Const, (1947), Article I, par. 20. We find this contention to be without merit for a variety of reasons. Initially, we observe that there is no contention of taking of private property for public use without just compensation alleged in the complаint. In argument before the trial judge, counsel for plaintiff stated his reliance upon the same issues briefed and argued befоre the court in another matter, neither of which have been provided to us. The trial judge noted two prior cases decided in Camden County involving the identical issue, one of which was thereafter decid
I am doing this because of the fact the two precedents are presently on appeal. The matter will ultimately be decided by the Appellate Divisiоn, and it would not, or I should say, should not create a dichotomy regarding the determination of the same issue dealing in the samе courthouse, and in the Appellate Division in the near future.
Apparently, the trial judge was not asked to determine the issuе of taking of private property for public use without just compensation in violation of the State Constitution, nor was the issue briefed there. Accordingly, we need not consider it here. See Nieder v. Royal Ind. Ins. Co., 62 N.J. 229, 234 (1973).
The burden of demonstrating that a taking has occurred lies upon the party alleging that the State action is unconstitutional. Proof must be by clear and convincing evidence. See Matter of Egg Harbor Associates, 94 N.J. 358, 374 (1983). If therе has not been a taking, any loss that may be suffered incident to governmental action under the police power in damnum absque injuria. Washington Market Enterprises v. Trenton, 68 N.J. 107, 116 (1975). We recognize that a calling, business or profession chosen and followed is property, and that a Legislature can no more destroy a business by statute, without providing for compensation, than it can authorize a corporation to take a piece of real estate for public use, excеpt upon compensation. See State v. Chapman, 69 N.J.L. 464 (S.Ct.1903), aff'd 70 N.J.L. 339 (E. & A. 1903). But, it has been held that restrictions on the use of property, if in furtherance of a valid gоvernmental purpose, serve the public interest and are considered a proper exercise of the police power even though they may result in some economic disadvantage. See N.J. Ass’n of Health Care Facilities v. Finley, 83 N.J. 67, 81 (1980), cert. den. 449 US. 944, 101 S.Ct. 342,
This case does not specifically involve a taking by legislation, but rather, a more tenuous contention, by delivery of injured suspects to a hospital by municipal police for medical care and treatment. We conclude this does not constitute a
Affirmed.
Notes
As an inner-city hospital, plaintiff contends that it fulfills this obligation within the first quarter of the year.