Schwarz Bros. Co. v. Bd. of Health of Jersey City

• Citation: 83 A. 762,83 N.J.L. 81
• Parties: SCHWARZ BROS. CO. et al. v. BOARD OF HEALTH OF JERSEY CITY.
• Decision Date: 08 July 1912
• Court: United States State Supreme Court (New Jersey)

83 A. 762

83 N.J.L. 81

SCHWARZ BROS. CO. et al.

v. BOARD OF HEALTH OF JERSEY CITY.

Supreme Court of New Jersey.

July 8, 1912.

(Syllabus by the Court.)

Certiorari at the prosecution of the Schwarz Bros. Company and Eugene J. Schwarz against the Board of Health of Jersey City. Writ dismissed.

Argued February term, 1912, before TRENCHARD, PARKER, and MINTURN, JJ.

Davis & Hastings, George L. Record, and Merritt Lane, all of Jersey City, for prosecutors.

James J. Murphy and Thomas G. Haight, both of Jersey City, for defendant.

TRENCHARD, J. This writ brings up for review an ordinance passed by the board of health of Jersey City on November 21, 1911, entitled "An ordinance to regulate the removal and transportation in and through Jersey City of animals dying from accident or disease or killed for any purpose other than consumption for food." The ordinance provides in effect that (section 1) "it shall be the duty of every owner of any animal which shall die from accident or disease, or be killed for any purpose other than consumption for food, within the limits of Jersey City, to give notice of such death at the office of the board of health," within a certain specified time after death; (section 2) it shall be unlawful for any person or persons, except the health officer or the board or the contractor for the removal of dead animals, to transport any such animal from the place where it died to any place within or without the limits of Jersey City, without having first obtained permission in writing from the board or health officer, and that no permit shall be granted unless there be a written application signed by the owner; (section 3) if, in the judgment of the health officer or the board, such dead animal is a nuisance or offensive and likely to be dangerous to public health, or if the owner shall fail to apply for a permit or to remove the animal within the time mentioned in the permit, or within such time as in the judgment of such health officer or board may be necessary to prevent it from becoming a nuisance or offensive and likely to be dangerous to public health, then it shall be lawful for such officer or board to cause its removal by the contractor, etc. We now proceed to consider in convenient order the only reasons assigned and argued why the ordinance should be set aside. We are of opinion that there is no merit in the objection that the ordinance is unreasonable.

Where an ordinance is within the power of the board which passed it, the presumption is that it is reasonable, and the judicial power to declare it void can be exercised only when, from the inherent character of the ordinance or from evidence showing its operation, it is demonstrated to be unreasonable, and the burden is on the person asserting the unreasonableness, where it is not inherently unreasonable. Traction Co. v. Elizabeth, 58 N. J. Law, 619, 34 Atl. 146; Trenton Horse R. R. Co. v. Trenton, 53 N. J. Law, 132, 20 Atl. 1076, 11 L. R. A. 410; Wyse v. Board of Police Com'rs of New Jersey, 68 N. J. Law, 127, 52 Atl. 281. The ordinance in question was passed under the authority granted to boards of health to pass ordinances relating to public health, of which we shall hereinafter speak. It surely is not unreasonable in providing for the notice of the death of such animals. This seems reasonable in order that there may be an investigation and suitable precautions taken to prevent infection or epidemic if need be. Nor is it unreasonable in providing for the removal of a dead animal if the owner fails to apply for a permit or to remove it within such time as in the judgment of the health officer or the board may be necessary to prevent it becoming a nuisance. An opportunity is given the owner to remove it, if he sees fit, and none of his legitimate property rights are invaded. So, too, it is not unreasonable to prohibit the transportation of such a dead animal through the streets without a permit from the board or health officer to be obtained on the written application of the owner. This merely places it within the power of the board, through the medium of a permit, to provide in each specific case, as a condition for the transportation through the streets, such regulations as, in the judgment of the board, are necessary and proper to preserve and protect the public health. The prosecutors are engaged in the business of buying and transporting to their "rendering factory" dead animals. They contend that the ordinance is unreasonable in that it hampers them in their business. Granting that it hampers them, we do not see that it does so unreasonably. It contemplates prompt inspection and grant of proper permit, for which no fee is charged. It applies alike to all citizens. The fact that the prosecutors happen to be engaged in the business of buying and transporting in their own wagons such dead animals is no reason why they should not be subjected to such regulations as will render it reasonably certain that the proper municipal authorities shall receive notice of the death of such animals, and be thus afforded an opportunity for inspection, and the imposition of such...