Earruso v. Bd. of Health of E. Hanover Tp., Morris County

• Decision Date: 11 July 1938
• Docket Number: No. 263.,263.
• Citation: 200 A. 755,120 N.J.L. 463
• Parties: EARRUSO et ux. v. BOARD OF HEALTH OF EAST HANOVER TP., MORRIS COUNTY.
• Court: New Jersey Supreme Court

200 A. 755

120 N.J.L. 463

EARRUSO et ux.

v. BOARD OF HEALTH OF EAST HANOVER TP., MORRIS COUNTY.

No. 263.

Supreme Court of New Jersey

July 11, 1938.

Certiorari proceeding by John Earruso and wife against the Board of Health of the Township of East Hanover, in the County of Morris, to review defendant's action in granting prosecutors leave to dump only garbage, refuse and debris collected by them under existing contracts with municipalities outside such township on their application for a permit to dump garbage, etc., collected in such township and nearby municipalities, on their premises in township.

Writ dismissed.

Argued January term, 1938, before BODINE, HEUER, and PERSKIE, JJ.

Thomas Brunetto, of Newark, for prosecutors. Harry Amsterdam, of Orange (Abraham M. Herman, of Orange, of counsel), for defendant.

HEUER, Justice.

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The point of inquiry is the legal validity of an ordinance enacted on April 13, 1936, by a body purporting to be the board of health of the Township of East Hanover, in the County of Morris, entitled "An ordinance to regulate the dumping upon or the filling up of vacant lands or any grounds."

The prosecutors, John Earruso and Mary, his wife, ever since the year 1921, have conducted a hog-raising business on their tract of farm lands comprising 32 1/4 acres, situate on the Whippany River, within the named township, and consisting in part of lowlands and "swamps covered with water the greater portion of the year." They also carry on the business of collecting and disposing of the garbage, ashes, refuse and debris of neighboring municipalities. The collections so made are deposited upon their premises; and the ashes and the like are used for "filling in the lowlands" thereof, and the garbage as food for the hogs, the surplus being "used for fertilizing purposes." They now have 300 pigs upon the lands; and it is stipulated that they "are unable to gather sufficient garbage to feed their pigs within the Township", and that "grain or other food is more expensive, and therefore" they "must bring in garbage from other municipalities." The nearest dwelling is 1,000 feet from the pig pens. "Tuttle Manor, a residential development," is within the vicinity.

On July 2, 1936, prosecutors made application to the board of health for a permit to dump upon their premises garbage, ashes and debris collected in the Township of East Hanover and municipalities nearby; and the board, by resolution adopted on October 1, 1936, granted leave to dump only "the garbage, refuse and debris collected by the prosecutors while performing the then existing contracts which they had for the collection of garbage, ashes and debris with other municipalities outside of East Hanover Township." One of these contracts, made with the Borough of Roseland, in the County of Essex, does not expire until 1940. Since the adoption of the ordinance, prosecutors have entered into a contract with the Town of Morristown for the removal of its garbage.

First: The first insistence is that the ordinance is a nullity for the reason that, at the time of its adoption, the body so exercising the functions of a local board of health had no legal existence. We find it to be devoid of substance.

The Township of East Hanover was incorporated by Chapter 31 of the Laws of 1928, Pamph.L. p. 50. While the record is deficient in this respect, it seems to be conceded that a board of health was properly constituted under the provisions of section 10 of Chapter 68 of the Laws of 1887, p. 84, as amended and supplemented (2 Comp.Stat. 1910, p. 2662; Rev.Stat.1937, 26:3-9), consisting of the members of the township committee, the township assessor, and a physician appointed by the township committee. Chapter 33 of the Laws of 1923 (Pamph.L. p. 66; Rev.Stat.1937, 26:3-10) was not applicable. The population of the township then was, and still is, less than 20,000 inhabitants.

However, on June 2, 1932, the municipal governing body, pursuant to the authority conferred by Chapter 312 of the Laws of 1926, later amended (Pamph.L.1926, p. 522; Rev.Stat.1937, 40:87-17 et seq.), adopted an ordinance abolishing the office of assessor and creating a board of assessors consisting of three members. Upon the organization of this newly created body, the township clerk was designated as the fifth member of the board of health, succeeding the assessor whose office had been abolished, in the exercise of what was conceived to be the authority conferred by the provision of section 10 of the act of 1887, supra, that, "in case of the death, removal or resignation of any assessor before the time of electing his successor, the township clerk shall succeed such assessor as a member of such local board, and shall continue as such member until an assessor shall be duly elected or appointed;" and the insistence is that the township clerk, by force of the statutory provision adverted to, assumes membership in the board only in case of the "death, removal or resignation" of the assessor, and then only until the election of a successor to the assessor, and that not being the case here, the board ceased to have legal existence, and the ordinance under review is therefore void. It is said that, in such circumstances, the municipal governing body was at liberty to organize a new board comprised of seven members under section 9 of the act of 1887, supra, R.S. 1937, 26:3-3. This contention proceeds upon the assumption that a board of five members being impossible under section 10 of the act of 1887, supra, by reason of the creation of a board of assessors consisting of three members, such a board could only be established under section 9, providing for a board of "not less than five nor more than seven members." But section 9 plainly does not deal with the creation of local boards of health in the several townships of the state. That is the office of section 10. The clarifying language of the Revision of 1937 affords ample demonstration that this was the original legislative purpose. Rev. Stat. 1937, 26:3-3, 26:3-9 et seq.

The record does not disclose that the township clerk actually functioned as a member of the board of health, or in anywise participated in the proceedings touching the adoption of the ordinance under review. Even so, he was a de facto officer. It is not suggested that, by force of the act of 1926, supra, the classification became illusory in the constitutional sense, in that section 10 of the act of 1887, supra, thereby became applicable only to townships which failed to adopt a board of three assessors under the act of 1926, supra. But even on that hypothesis, as also on the supposition that section 10 of the act of 1887 was no longer applicable to this particular municipality, the board itself had at least a de facto existence. It concededly exercised public functions under color of right; and it had the reputation of being...