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

• Decision Date: 18 June 1913
• Citation: 84 N.J.L. 735,87 A. 463
• Parties: SCHWARZ BROS. CO. et al. v. BOARD OF HEALTH OF JERSEY CITY.
• Court: New Jersey Supreme Court

87 A. 463

84 N.J.L. 735

SCHWARZ BROS. CO. et al.

v. BOARD OF HEALTH OF JERSEY CITY.

Court of Errors and Appeals of New Jersey.

June 18, 1913.

Walker, Ch., dissenting.

Appeal from Supreme Court.

Certiorari by the Schwarz Bros. Company and another against the Board of Health of Jersey City. From a judgment of the Supreme Court (83 Atl. 762) dismissing the writ, the prosecutors appeal. Affirmed.

George L. Record, David & Hastings, and Merritt Lane, all of Jersey City, for appellants.

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

KALISCH, J. This matter comes up for review on an appeal from a judgment of the Supreme Court which sustained the validity of an ordinance passed by the Board of Health of Jersey City on the 21st day of November, 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 other purpose than consumption for food." The validity of the ordinance is assailed by the appellants upon the grounds that it is ultra vires and that it is in violation of the fourteenth amendment of the Constitution of the United States in that it denies equal protection of the law and has the effect of taking property without due process of law, and that it is also in violation of paragraph 16 of article 1 of the Constitution of the state of New Jersey, as amended, in that it is a taking of private property for public use without just compensation, and further that the ordinance is unjustly discriminatory, unreasonable, tends to create a monopoly, and was not passed in good faith but for a fraudulent purpose.

The ordinance upon which the attack is made consists of seven sections, the first section of which, in substance, provides it shall be the duty of every owner of every animal which shall die from accident or disease, or be killed for any other purpose other than consumption for food within the limits of New Jersey to give notice of such death at the office of the board of health within two hours after it takes place provided that if it takes place after sundown then the notice shall be given by 10 o'clock the next morning. Section 2 provides that it shall not be lawful for any person or persons except the health officer or officers of the board of health or the contractor for the removal of dead animals, to transport or carry such animal as is described in the first section of the ordinance from the place where such animal shall have died to any place within or without the limits of Jersey City without having first obtained permission in writing from the board or the health officer, and that no such permit shall be granted unless there be a written application for the same signed by the owner of the dead animal. Section 3 provides that if in the judgment of the health officer or any member of the board or officer of the department such dead animal is a nuisance or offensive and likely to be dangerous to public health, or if the owner of such dead animal shall neglect to apply for and receive the permission mentioned in the second section of the ordinance, or in case such permit shall be given and such owner shall neglect or fail to remove such animal without the limits of the city Within the time mentioned in the permit or within such period of time after death of such animal as in the judgment of the health officer or any member of the board is proper to prevent such animal from becoming a nuisance or offensive and likely to become a danger to public health, it shall be lawful for the health officer or any member of the board to cause the removal of the dead animal forthwith by the contractor for the removal of dead animals, or in such other way as shall seem most expedient. Section 4 makes it unlawful for any person or persons to bring within the limits of Jersey City any animal such as is described in the earlier part of the ordinance except upon permission in writing from the board or health officer. The fifth section provides for the form of the permit; the sixth section provides a penalty for violation of the ordinance; and the seventh section contains a repealer...