Bd. of Health of City of Asbury Park v. N.Y. & Long Branch R. Co.

• Decision Date: 01 December 1908
• Citation: 77 N.J.L. 15,71 A. 259
• Parties: BOARD OF HEALTH OF CITY OF ASBURY PARK v. NEW YORK & LONG BRANCH R. CO.
• Court: New Jersey Supreme Court

71 A. 259

77 N.J.L. 15

BOARD OF HEALTH OF CITY OF ASBURY PARK

v. NEW YORK & LONG BRANCH R. CO.

Supreme Court of New Jersey.

Dec. 1, 1908.

(Syllabus by the Court.)

Certiorari to Court of Common Pleas, Monmouth County.

Action by the Board of Health of the City of Asbury Park against the New York & Long Branch Railroad Company. Judgment for plaintiff was reversed in the common pleas, and it brings certiorari. Judgment of the common pleas reversed and of the justice court affirmed.

Argued June term, 1908, before GARRISON, SWAYZE, and PARKER, JJ.

Patterson & Rhorne, for prosecutor.

John S. Applegate & Son, for defendant.

GARRISON, J. The board of health of the city of Asbury Park, who is the prosecutor of this writ of certiorari, obtained a judgment in the police justice court of that city against the New York & Long Branch Railroad Company for a penalty for the violation of one of the ordinances of the said board. Upon an appeal to the court of common pleas, a trial was had in which a nonsuit was directed upon the ground that the action should have been in the name of the city of Asbury Park, and not in the name of the board of health. The propriety of this ruling is the sole question before us on this certiorari.

The nonsuit was ordered upon the ground that "An act relating to and providing for the government of cities of this state containing a population of less than 12,000 inhabitants" (Act March 24, 1897 [P. L. p. 46]), which had been adopted by the city of Asbury Park, established a city police court with jurisdiction over "enforcing and recovering any penalty for the violation of any ordinance, by-law or regulation of such city or any board thereof," to which end it was empowered "to issue process at the suit of said city." Section 78. The court below, treating the provision last quoted as a part of the charter of the city of Asbury Park, and conceiving that the board of health of that city was "a board thereof" within the meaning of such charter, made the ruling that is now under review.

It is, to say the least, open to question whether the board of health established in the city of Asbury Park is "a board thereof" within the meaning of the statute that has been cited. The preposition "of" in this context may denote source, creation, or authorship, or it may denote mere existence or possession, just as the expression "books of mine" may mean books of which I am the author or books belonging to me. The context in the present case would seem to indicate that the former of these meanings was intended rather than the latter, for the associated words of the clause all refer to matters that are in this former sense related to the city as their source or author. Boards of health, on the contrary, though established in and by cities, trace their source and derive their authority and jurisdiction, not from such city or its charter, general or special, but from the board of health act of 1887. Gen. St. 1895, p. 1634. This act, which is a complete legislative scheme upon the subject, provides that there shall be a local board of health in every city, the powers, authority, and procedure of which it minutely defines, leaving to such city merely the manner of appointment and the term of office of its members. With respect to the local boards thus required to be in every city, the act provides that they may prescribe penalties for the violation of their ordinances, and enforce them in the local or police court of such city, which is "to issue process at the suit of any such board." Page 1638, § 18. That a board of health when established in any city by the appointment of members to fill such board is in all essential particulars a creature of the board of health act would seem to be clear. Such was the view taken in the Court of Chancery in Trenton Board of Health v. Hutchison, 39 N. J. Eq. 218, and such is the view that has been uniformly held by those upon whom the duty of administering the law in this respect has devolved. It is true that the act of 1897 under which the city of Asbury Park is regulated was enacted under the board of health act of 1887, and that the act of 1897 by its twenty-second section authorizes the common council "to establish a board of health and define its powers and duties." But the case before us shows that all that the common council of the city of Asbury Park did in this regard was to adopt an ordinance organizing a board of health in said city in accordance with "An act to establish in this state boards of health," ordaining nothing with respect to the duties or procedure of such board. The provision of the statute of 1897 that...