Board of Health of Scotch Plains Tp. v. Pinto

• Decision Date: 23 November 1970
• Citation: 57 N.J. 212,271 A.2d 289
• Parties: BOARD OF HEALTH OF the TOWNSHIP OF SCOTCH PLAINS, Plaintiff-Respondent, v. John PINTO, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 212

57 N.J. 212

271 A.2d 289

BOARD OF HEALTH OF the TOWNSHIP OF SCOTCH PLAINS, Plaintiff-Respondent, v. John PINTO, Defendant-Appellant.

Supreme Court of New Jersey.

Argued Oct. 13, 1970.

Decided Nov. 23, 1970.

Harry Kay, Newark, for defendant-appellant.

James J. Walsh, Scotch Plains, fo plaintiff-respondent.

Carlyle W. Crane, Plainfield, as amicus curiae, on behalf of the Plainfield Area Cartmen's Ass'n and other refuse collectors (Crane & Beglin, Plainfield, attorneys, Carlyle W. Crane, Plainfield, on the brief).

The opinion of the court was delivered by

PROCTOR, J.

The defendant John Pinto was convicted in municipal court of violating an ordinance of the Board of Health of the Township of Scotch Plains by increasing the rates of his garbage collection services without first obtaining approval of the Board. He was fined $100. The conviction was affirmed by the Union County Court and by the Appellate Division. 108 N.J.Super. 349, 261 A.2d 389 (1970). We granted defendant's petition for certification. 55 N.J. 597, 264 A.2d 69 (1970).

The facts are not disputed. The defendant is one of eleven licensed refuse collectors operating in the Township. The licenses were issued by the Board of Health which also approves rates at which collectors may bill individual homeowners. Defendant admits that he increased the charge for his services above the rates approved by the Board without first obtaining its approval and that his conduct violated the Board's ordinance. He has limited his defense to the question of the validity of the ordinance which he attacks on numerous grounds.

The critical sections of the ordinance require that refuse collectors be licensed by the Board, that the collectors file rates to be approved by the Board, that the rates cannot be increased without prior approval of the Board, and that any licensee who violates any provision of the ordinance shall be subject to a fine not exceeding $100. Other sections provide that there shall be no more than eleven licenses outstanding except in cases of emergency, that there shall be a biennial license fee of $100, that each licensee deposit a $1,000 bond to insure conformance with Board regulations, and that all licenses are subject to suspension and revocation for violation of Board regulations.

Defendant's primary argument is that the challenged provisions of the ordinance are Ultra vires in that there is no statutory authority for the Board of Health to license and fix rates for the collection and disposal of refuse. In order to resolve this question, it is necessary to understand the functions of local boards of health, and to decide whether the powers to license and fix rates are included in the powers delegated to them by the State.

Local boards of health are governmental agencies created in every municipality under statutory mandate, N.J.S.A. 26:3--1 et seq., for the purpose of exercising locally the inherent police powers of the State respecting matters of public health. The boards are invested with both general and specific powers for dealing with problems of public health. N.J.S.A. 26:3--64 grants local boards the general power to '* * * enact and amend health ordinances, and make and alter necessary rules and regulations in the execution of any power delegated to it or in the performance of any duty imposed upon it by law * * *.' See also N.J.S.A. 26:1A--9. N.J.S.A. 26:3--31 enumerates the specific powers delegated to local boards. Among the powers granted are two which are pertinent here:

'f. To regulate, control, and prohibit the accumulation of offal and any decaying or vegetable substance.

'h. To regulate, control, or prohibit * * * the dumping of garbage * * *.'

The Board argues that the power to license collectors and fix collection rates are incidental to the specific powers granted in subsections (f) and (h). The argument requires an examination of the legislative scheme for allotting the various powers incident to the regulation of refuse collection.

The power to license and regulate rates inheres solely in the State and, in the absence of a statutory grant, does not exist in a municipal corporation or its local board of health. Zullo v. Board of Health, Woodbridge Tp., 9 N.J. 431, 437, 88 A.2d 625 (1952); Edwards v. Mayor, etc., of Borough of Moonachie, 3 N.J. 17, 21, 68 A.2d 744 (1949). Thus, in order to sustain the ordinance before us, we must find a delegation of the power to license and set rates either by express language or by necessary implication. There is no express power in subsections (f) and (h) either to license or set rates. By contrast the Legislature has specifically granted local boards of health the power to license certain other activities and businesses in the same section (N.J.S.A. 26:3--31) from which the plaintiff contends it derives its licensing power. Other subsections of that section expressly authorize local boards to license and regulate hotels and restaurants (c), plumbing (e), cleaning of cesspools and privies (i), and the keeping of boarding houses for children (l). These specific grants of licensing power and the absence of a specific power to license refuse collectors indicate to us that when the Legislature meant to authorize a local board to license a business or employment, it said so in express language. Shoemaker & Co. v. Board of Health, 82 N.J.L. 33, 81 A. 349 (Sup.Ct.1911).

There are other indications that the Legislature never intended the Board to have a licensing power regarding the collection of refuse. N.J.S.A. 26:3--32 provides that local boards of health in cities having a population over 100,000 'may grant and regulate licenses and permits incident to health matters and charge a reasonable fee for any such license or permit.' It is conceded that the Township of Scotch Plains has a population of less than 100,000 and thus the Board can draw no authority from this statute. To the contrary, the statute demonstrates a legislative intent to deny such power to boards in less populous municipalities. Since there is no specific power to license refuse collectors and since the Board does not qualify for a general licensing power, it seems clear that the Legislature intended to deny it that power.

The denial of a local board's power to license refuse collectors was not an oversight by the Legislature. Although many functions of local boards of health overlap and may be exercised concurrently with those of municipal governing bodies, E.g., Nicoulin v. Lowery, 49 N.J.L. 391, 393, 8 A. 513 (Sup.Ct.1807); see also Township of Dover v. Witt, 7 N.J.Super. 259, 261, 72 A.2d 884 (App.Div.1950), some matters have been delegated exclusively to municipal governing bodies. N.J.S.A. 40:52--1(c) provides that the governing body of a municipality 'may make, amend, repeal, and enforce ordinances to license and regulate: * * * scavengers * * *.' Accordingly, the Township governing body could have licensed the collectors in the present case. That the Legislature expressly delegated this power to municipal governing bodies and failed to mention it as a board of health power is further evidence of an intent to deny boards of health the power. The apparent statutory scheme in cities of a population of 100,000...