Bd. of Health of Twp. of Hillside v. Mundet Cork Corp.

• Citation: 8 A.2d 105,126 N.J.Eq. 100
• Parties: BOARD OF HEALTH OF TOWNSHIP OF HILLSIDE v. MUNDET CORK CORPORATION.
• Decision Date: 15 August 1939
• Court: New Jersey Court of Chancery

8 A.2d 105

126 N.J.Eq. 100

BOARD OF HEALTH OF TOWNSHIP OF HILLSIDE

v. MUNDET CORK CORPORATION.

Court of Chancery of New Jersey.

Aug. 15, 1939.

Syllabus by the Court.

1. Under the Federal judiciary acts, a state is not a citizen, and a suit between a state and a corporation of another state is not a suit between citizens of different states.

2. Question whether state is a party must be determined by consideration of the nature of the case as presented by the whole record and not by a reference to the nominal parties.

3. The nuisance to restrain which a local board of health may file a bill in chancery, must be a public as distinguished from a private nuisance and be one which is indictable at common law. The board acts for the state and in lieu of the attorney general. R.S. 26:3-56, N.J.S.A. 26:3-56.

4. The state is the actual complainant in such a bill filed by the local board in the name of the state on relation of the board and the cause is not removable on the ground of diverse citizenship.

Suit by the State, on the relation of the Board of Health of the Township of Hillside, against the Mundet Cork Corporation to enjoin the maintenance of a nuisance. On defendant's motion to remove the cause to the United States District Court.

Motion to remove denied.

Sigurd A. Emerson, of Elizabeth, for complainant.

McCarter, English & Egner, of Newark, for defendant.

BIGELOW, Vice Chancellor.

Defendant moves to remove the cause to the United States district court on the ground that it is a suit of a civil nature in equity where the matter in controversy exceeds the value of $3,000 and is between citizens of different states. 28 U.S.C.A. § 71; Id. sec. 41(1), as amended. Defendant is a corporation of Delaware and a citizen of that state. The complainant named in the bill is the state of New Jersey on the relation of the board of health of the township of Hillside. The question is whether the complainant is a citizen of New Jersey.

"A state is not a citizen. And under the judiciary acts of the United States, it is well settled that a suit between a state and a citizen or a corporation of another state is not between citizens of different states." Postal Telegraph Co. v. Alabama, 155 U.S. 482, 15 S.Ct. 192, 194, 39 L.Ed. 231; Stone v. South Carolina, 117 U.S. 430, 6 S.Ct. 799, 29 L.Ed. 962. "We must add that the mere presence on the record of the state as a party plaintiff will not defeat the jurisdiction of the Federal court when it appears that the state has no real interest in the controversy." It is the duty of the court to determine whether the state is "an actual party plaintiff in the present suit, and to determine that question by consideration of the nature of the case as presented by the whole record, and not 'by a reference to the nominal parties to the record.'" Ex parte Nebraska, 209 U.S. 436, 28 S.Ct. 581, 584, 52 L.Ed. 876; Indiana v. Glover, 155 U.S. 513, 15 S.Ct. 186, 39 L.Ed. 243; Maryland v. Baldwin, 112 U.S. 490, 5 S.Ct. 278, 28 L.Ed. 822. If, instead of the state, one of its officers or departments is the party named, still the state may be the real litigant so as to deprive the Federal court of jurisdiction based on diverse citizenship. Worcester County Trust Co. v. Riley, 302 U.S. 292, 58 S.Ct. 185, 82 L.Ed. 268; State Highway Comm. of Wyoming v. Utah Const. Co., 278 U.S. 194, 49 S.Ct. 104, 73 L.Ed. 262. A county or a municipal corporation, unlike a state, is a citizen within the meaning of the Federal statute. Port of Seattle v. Oregon & W. R. Co., 255 U. S. 56, 41 S.Ct. 237, 65 L.Ed. 500; Mercer County v. Cowles, 7 Wall. 118, 19 L.Ed. 86.

The state of necessity, always acts through agents, generally through the attorney general in civil matters and the several prosecutors of the pleas in criminal matters. The question presented is whether the state is the actual complainant, acting by means of the local board of health, or whether the board is itself the real complainant.

The state of New Jersey endeavors to protect public health through the instrumentality of a state department of health, R.S. 26:2-1, N.J.S.A. 26:2-1, and local boards, which all our municipalities are ordered to maintain, R.S. 26:3-1, N.J.S.A. 26:3-1. The director of the state department is required generally to enforce all laws relating to the health of the people of the state. R.S. 26:2-15, N.J.S.A. 26:2-15. Among other duties, the department is directed to call to the attention of local health authorities any failure on their part to enforce the laws and to order them to do so and if they fail to comply, then the state department itself must immediately take the action which the local authorities fail to perform. R.S. 26 :2-20, N.J.S.A. 26:2-20. Our public health organization is state-wide, with local boards charged in the first instance to safeguard public health in their several vicinages, and with a central body in which is vested final power and responsibility.

The local board is commanded to "examine into and prohibit any nuisance, offensive matter, foul or noxious odors, gases or vapors, water in which mosquito larvæ breed, and all causes of disease which may be known to the board or brought to its attention, which, in its opinion, are injurious to the health of the inhabitants therein." R.S. 26:3-46, N.J.S.A. 26:3-46. The local...