State v. Bd. of Health of City of Newark

• Decision Date: 26 March 1892
• Citation: 23 A. 949,54 N.J.L. 325
• Parties: STATE (COURTEK et al., Prosecutors) v. BOARD OF HEALTH OF CITY OF NEWARK et al.
• Court: New Jersey Supreme Court

23 A. 949

54 N.J.L. 325

STATE (COURTEK et al., Prosecutors)

v. BOARD OF HEALTH OF CITY OF NEWARK et al.

Supreme Court of New Jersey.

March 26, 1892.

(Syllabus by the Court.)

Certiorari at the prosecution of Albert C. Courter and others against the board of health of the city of Newark and others to review a certain resolution. Writ dismissed.

The other facts fully appear in the following statement by Garrison, J.:

The return to the writ of certiorari in this cause brings up the following resolution :

"Resolved, that the Doughty Health Association be granted a permit from this board of health to carry on their business of purifying night-soil, being the fæcal and effete matter from the cess-pools and privies in the city of Newark, upon the following terms and conditions, to-wit:

"(1) The place to be used by the said Doughty Health Association shall be designated and approved by this board.

"(2) That the said Doughty Health Association shall pay as a license fee to the treasurer of the board of health, prior to or at the time of the granting of the permit hereinafter specified, the sum of $1,000 for the first year, the sum of $1,500 for the second year, the sum of $2,000 for the third year, the sum of $2,500 for the fourth year, and the sum of $3,000 for the fifth year.

"(3) That the permits to the said Doughty Health Association shall be and continue each for the term of one year from the date thereof, and shall be renewable by the said Doughty Association for four successive years subsequent to the first year, upon the payment in advance to the treasurer of the board of the fee for each year on or before the day next after the expiration of the permit for each successive year.

"(4) That, in addition to the payment of the sums aforesaid, the said Doughty Health Association are hereby granted permission to carry on the business of night scavenger in the city of Newark upon their procuring licenses for each wagon, and paying the license fees therefor, according to the rules and regulations of this board; said licenses to be revocable in the same manner and to be given upon the same terms as licenses to other night scavengers.

"(5) That the board of health shall have power to revoke any of the yearly licenses aforesaid at any time if, after the granting of the same, it shall appear to the said board of health that the methods and processes of the said Doughty Association are dangerous or injurious to public health; or that the operation of the said business of the said Doughty Association shall prove to be a nuisance to or injurious to public health; or that the removal of all faecal matter by the said Doughty Association shall not be done in a sanitary or inoffensive manner; or that the disposal thereof shall not be harmless and definitive; or that no suitable places and works for its final disposal shall be furnished by said Doughty Health Association; or that any rule, ordinance, or provision of the sanitary code be violated by the said Doughty Association.

"(6) Provided, also, that all of the means, processes, apparatus, and appliances for this business, the location of works and the fixing of rates for the service, shall be subject to the approval of, and in every particular shall conform to the regulations of, the board of health, and at all times be open to their inspection and investigation.

"(7) Said licenses shall also be revocable if the works and methods of the said Doughty Health Association are not capable or sufficient for the removal in a sanitary and inoffensive manner of all the night-soil or other fæcal matter from cess-pools and privies as shall be brought to the said works or property of said Doughty Health Association by any and all persons whatsoever."

It appearing at a subsequent meeting that the Doughty Health Association had become incorporated under the law of this state under the name of the Newark Sanitary & Manufacturing Company, it was, upon due application—

"Resolved, that the provisions of the said resolution passed May 19, 1891, be, and the same are, applicable to the Newark Sanitary and Manufacturing Company, as if the said the Newark Sanitary and Manufacturing Company had been mentioned in said resolution in all places where the said Doughty Health Association was mentioned or intended to be referred to.

"(3) Resolved, that the premises of said Newark Sanitary and M'f'g Co., near Belleville, bounded south by N. Y. and Greenwood Lake R. R. Co.'s track and Sayner Chemical Works, east by Passaic river, west by Erie R. R. Co.'s track, north by unimproved lots formerly owned by C. Van Rensselaer, being near Second river, be designated, and the same is hereby designated, as a dumping-ground for any and all duly-liceused night scavengers; that is to say, all persons who are licensed to collect and remove night-soil, i. e., the contents of cess-pools and privies, from any premises in the city of Newark, and all night scavengers, may dump all night-soil collected by them on the premises aforesaid. This resolution to take effect as soon as said Newark Sanitary and M'f'g Co. signify to the president of this board their readiness to receive and dispose of the night-soil, and become duly licensed according to there solution of May 19, 1891."

Argued November term, 1891, before Dixon, Reed, and Garrison, JJ.

J. R. Emery and F. W. Stevens, for prosecutors.

Chauncey C. Parker and Henry Young, for defendants.

GARRISON, J., (after stating the facts.) The board of health of the city of Newark has authority, by ordinance, to regulate the cleansing of cess-pools and privies, and to control the disposition of the contents. P. L. 1887, p. 80; section 12, pars. v. and vii., and the added paragraph i.

The power thus granted has been exercised by the board of health of the city of Newark by the passage of an ordinance in the form of a code, pursuant to section 16 of the act above cited. In sections 32-46 of this code the board declares and defines the manner in which cess-pools may be cleaned and emptied, and the contents and other offensive materials removed and disposed of; providing, among other things, that every person acting in respect to the matters covered by these sections shall first obtain a permit from the board of health. Such being the condition of general and municipal legislation, the board, by simple resolution, granted a permit to the defendant the Newark Sanitary & Manufacturing Company, hedging it about with a number of conditions, the whole constituting the resolution obnoxious to the prosecutors. The resolution thus brought under review concerns two different but closely related matters,—the scavengering of cess-pools and the like, and the removal of the contents to the works of the sanitary company for purification and manufacture. In respect to the scavengering, and the requisite license therefor, the prosecutors show no special injury. They have therefore no action in respect to that part of the resolution. Jersey City v. State, 53 N. J. Law, 434, 22 Atl. Rep. 190.

The parts of the resolution open to the attack of the prosecutors are those in which the premises of the sanitary company are licensed as a place for the deposit of night-soil for purification and manufacture. The objection first to be considered is that the license or permit is by simple resolution, and not by ordinance. The board of health is a quasi corporation, and its acts are to be tested by the principles ordinarily applicable to municipal bodies. Elemental among these is that which provides that, where no particular mode of action has been prescribed by the legislature, either expressly or by legal intendment, the municipal body may act by simple resolution as effectively as by ordinance. The contention in the present case therefore must be that the legislature has prescribed that the proceeding in question must be by ordinance. If such prescription exists, it must be found in the sections above cited. The language thereemployed, Insofar as it affects the present case, is that the board "shall have power to pass * * * ordinances and make rules and regulations in regard to public health * * * for the following purposes, * * * and such ordinance shall have three readings before its final passage, and at least one week shall intervene between the second and third readings of said ordinance, and a notice, stating," etc., "shall be published at least one week prior to its final passage in at least one newspaper," etc. It is evident that the rules here contemplated are such as are general in scope and character, as distinguished from the particular regulation of individual cases. In other words, the ordinances contemplated by this statute were those prescribing rules of conduct for or government of the board of health, not those providing for the execution of the incidents or details of such matters as the board, under such ordinances, may lawfully direct to be done. That this was the legislative intent is placed beyond question by section 16, above referred to, wherein it is enacted that "in the making of ordinances any local board of health may adopt or ordain the same in the form of a code;" thus clearly distinguishing the class of cases to which the legislative prescription was intended to apply. In the present instance the board of health, having codified its general rules, had, for the further protection of the interests committed to its care, ordained that the refuse material mentioned in the sections referred to should not be deposited upon any grounds "unless pursuant to a special permit from this board." I think it is clear that such a permit maybe by simple resolution. Green v. Cape May, 41 N. J. Law, 45; City of Burlington v. Dennison, 42 N.J. Law, 165; Butler v. Passaic, 44 N. J. Law, 171...