City of Newark v. Charles Realty Co.

• Decision Date: 27 June 1950
• Docket Number: M--7357,Nos. M--7311,M--7358,s. M--7311
• Citation: 9 N.J.Super. 442,74 A.2d 630
• Parties: CITY OF NEWARK v. CHARLES REALTY CO.
• Court: New Jersey County Court

Page 442

9 N.J.Super. 442

74 A.2d 630

CITY OF NEWARK v. CHARLES REALTY CO.

Nos. M--7311, M--7357, M--7358.

Essex County Court Law Division, New Jersey.

June 27, 1950.

Charles Handler, Newark, Louis Heiss, Newark, of counsel, for complainant-appellee.

John J. Clancy, Newark, Joseph A. Hayden, Newark, for defendant-appellant.

John Cervase, Newark, for Newark Citizens Housing Committee, amicus curiae.

HARTSHORNE, J.C.C.

These three appeals, consolidated for trial, are test cases to question the constitutionality of the municipal ordinances, the basis of the many penal proceedings recently instituted by the City of Newark, as one branch of its so-called slum clearance program. The technique of this branch of the program apparently is to compel the owners of individual properties to maintain such properties in good condition, the other branch being the creation of the well-known slum clearance projects. The defendant in these test cases was convicted of violating the ordinances in question by failing to maintain its premises in the required condition. On the present appeals, the Newark Citizens Housing Committee has been permitted to intervene as amicus curiae.

Defendant owner attacks its convictions in the court below not only on certain general grounds applicable to all three cases, but also on certain special grounds applicable to such cases separately. We turn initially to these joint grounds of attack.

The Ordinances as an Exercise of the Police Power.

Defendant's main contention originally was that the ordinances are unconstitutional, in that they do not protect the health and welfare of the public; thus are not a proper exercise of the state police power, delegated for enforcement to the City of Newark; and, therefore, in their limitation of the defendant's property rights, constitute a taking of property without due process of law contrary to the provisions of both the State and Federal constitutions. (N.J.Const. art. I, Par. 20, N.J.S.A.; U.S.Const. Amend. XIV). In support of these arguments, defendant calls attention to the well-settled principle of the common law that a landlord is under no duty to make repairs to leased premises unless he has contracted to do so, or the defective condition exists in a portion of the premises used in common by all tenants, there being no such promise, nor common use, here. Clyne v. Helmes, 61 N.J.L. 358, 39 A. 767 (Sup.Ct.1898); Ross v. Tetradis, 7 N.J.Super. 224, 72 A.2d 891 (App.Div.1950).

But, it has for centuries been of the essence of civilized society, where many individuals live as neighbors, that each must exercise his rights with due regard to the rights of all--sic utere tuo ut alienum non laedas. Under such circumstances, this limitation of the rights of one, if necessary to protect the rights of all, is not a taking of property without due process of law, but, on the contrary, if properly carried out, is the use of due process of law for the protection of the rights of all. Mansfield & Swett, Inc., v. Town of West Orange, 120 N.J.L. 145, 198 A. 225 (Sup.Ct.1935); Annett v. Salsberg, 135 N.J.L. 122, 50 A.2d 841 (Sup.Ct.1947); Mugler v. State of Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205 (Sup.Ct.1887); Hudson County Water Co. v. McCarter, 209 U.S. 349, 28 S.Ct. 529, 52 L.Ed. 828, 14 Ann.Cas. 560 (Sup.Ct.1908). The justification of this limitation of the rights of an individual thus lies in the need for the protection of the rights of others; these rights here being claimed to be the public health and welfare. The defendant hence contends that the ordinances in question, as sought to be enforced against it, do not tend directly and substantially to protect the health and welfare of the public. We turn accordingly to the consideration of the effect, if any, on the public health and welfare of the ordinances in question, and the complaints thereunder, on which the convictions resulted. Case I.

The complaint therein charges a violation of the provisions of Section 1039, para. 3 of the city ordinances, as amended and supplemented, in that defendant, being the owner of 22 Hillside Place, Newark did 'fail to keep at all times in good workable condition, free from leaks and defects the hot water boiler on the 2nd floor (Paterson) apartment and the kitchen hot water tank on the 3rd floor (Gaskins) apartment', to this complaint being attached a previous notice served on defendant.

The pertinent portion of the ordinance in question provides that 'the owner shall maintain in good workable condition, free from leaks or any other defects, the hot water storage tank, hot water pipes and the hot water apparatus.' ¹ The stipulated facts show that such hot water equipment was entirely within the possession and control of the respective tenants, that the defendant owner was not obligated by the rental to furnish hot water to them, nor to make repairs to them. Further, that while such fixtures were in useable condition at the time of the renting, and were used for that purpose by the tenant, they thereafter, during such tenancy, 'became and remained unuseable'. For the violation a penalty of $5 was imposed. Case II.

The complaint therein charges the violation of Section 982 of the Newark ordinances, as amended, in that defendant, being the owner of 218 Charlton St., Newark, did fail to paint two rooms, after having been notified to do so by the Health Officer.

The pertinent portion of the ordinance in question provides that 'The owner, agent, lessee or occupant of any dwelling or factory building or part thereof shall thoroughly cleanse all the rooms as often as shall be required by said Board or its officers, and shall when notified so to do, well and sufficiently whitewash or paint the walls and ceilings thereof.' ² The proof showed a violation of this ordinance in fact, for the violation of which a fine of $10 was imposed.

Case III.

The complaint therein charges that defendant, being the owner of 172 Prince St., Newark, violated the provisions of Section 1069 of the Newark ordinances, as amended, in that it did maintain a nuisance at that address by failing to repair defective plaster in several apartments, and by failing to repair a defective kitchen stove in one, 'said condition being dangerous to human life and health'. The pertinent portion of the ordinance in question provides that 'Whatever is dangerous to human life or health * * * is hereby declared to be a nuisance. Any person * * * who shall continue to retain or maintain any of them shall on conviction thereof forfeit and pay a penalty * * *'. ³ For the violation thereof a fine of $25 was imposed.

In substance the first objection leveled by defendant owner jointly against his three convictions, and the municipal ordinances on which they are based, is that his failure to maintain in good workable condition for the use of his tenants hot water storage tanks in their premises, his failure to paint the walls and ceilings of certain of their premises, when notified so to do by the Health Department, and his failure to repair defective plaster and a defective stove in certain premises, did not, nor did any of them, tend directly and substantially to endanger the public health and welfare. However, while defendant vigorously cross-examined the city's witnesses in that regard, it did not, except for the stipulated facts in Case I, as above, offer one word of evidence in support of such contention.

On the other hand, the evidence produced by the city substantially showed the following, through the testimony of doctors, public health officials, trained inspectors, and the stipulations of two recent statistical reports of the Housing Authority of the City of Newark:

That the three properties, where the alleged violations occurred, were all in Newark's Third Ward 'the greatest slum area in the City of Newark, showing both high morbidity and mortality rates, exceeding any other ward in the City of Newark'. These Third Ward rates have 'always been extremely high. In the last year we found more cases of tuberculosis in the Third Ward than any other ward. * * * three or four times as many as most of the wards * * *. The tuberculosis condition in the Third Ward unfortunately is one of the highest, not only in the State of New Jersey--it is the highest in the State of New Jersey--but one of the highest in the United States * * * There is a direct relation between slums and tuberculosis, not only in that ward, but anywhere in the United States. We know where slums exist there are the associated factors of poor hygiene, poor sanitation, poor ventilation, overcrowding, and they form the basic network for the spread of tuberculosis.' In addition to the fact that tuberculosis in slum areas is 'significantly higher than in the non-slum areas', so are 'venereal disease * * * gastro intestinal diseases, diseases of the respiratory system, skin diseases'. These are all 'communicable diseases'. That is, they are 'spread either directly or indirectly through a vector of some kind', such as 'lice, roaches, rats, mice, mosquitos, flies'. Furthermore, the very conditions of lack of hot water fixtures, lack of paint, defective plaster, and defective stoves 'in a slum area are more likely to produce the presence of (such) vectors than in an area not a slum area', and thus transmit such communicable diseases to the rest of the public, as well as more likely to harbor and maintain the germs of such diseases 'than in an area not a slum area'. At the Belmont site, stipulated in evidence as being that of a slum area immediately adjacent, and similar, to the Third Ward, 'the percentage of homes needing majoy repairs was about 70% In 1940'. This shows the reason for the host of prosecutions by the city under the ordinances in question, and points to the substantial effect which this prohibited deterioration and dilapidation of properties has on the public health and welfare.

More specifically, as to the lack of hot water...