State v. Lowery
| Decision Date | 11 March 1887 |
| Citation | 8 A. 513,49 N.J.L. 391 |
| Parties | STATE (NICOULIN, Prosecutor) v. LOWERY and another. |
| Court | New Jersey Supreme Court |
On certiorari.
Mr. Wills, for plaintiff.
Mr. Smith, for respondents.
The prosecutor was convicted before a justice of the peace of the county of Hudson for the violation of an ordinance of the township committee of North Bergen township. He seeks a reversal of the conviction on the alleged invalidity of the ordinance, and for irregularity in the proceedings before the justice. The ordinance seems to have been adopted by the township committee with due formality, and no impressive reasons are urged or discoverable for holding a regulation such as this ordinance sets up to be an unreasonable exercise of the police power. Its design was to repress and punish noxious and offensive practices in carrying and depositing matter removed from sinks, cess-pools, and privy vaults. The proper control of the time and mode of cleansing such receptacles for refuse matter, and removal of their contents, is not only a legitimate subject of municipal concern, but is imperatively demanded by a just regard for the comfort and health of the citizen.
In respect to the doubted power of the township committee of North Bergen to pass the ordinance in question, it is not necessary to rest it upon an inherent right in all municipal governments to pass suitable rules and bylaws for the government of its members on matters of local concern; for express authority for that purpose is given to the township by the legislature in the acts creating it and defining its powers. The twentieth section of the act of April 6, 1871, (P. L. 1402,) confers full power to pass, alter, and repeal ordinances for regulating and suppressing nuisances in the township, and to enforce them by prescribed penalties.
One of the reasons earnestly urged against the binding character of the ordinance is that the power exercised by the township committee has been taken away by subsequent legislation, and that exclusive power over this subject is given to the board of health and vital statistics of the county of Hudson. An act was passed in 1884 (P. L. 282) entitled "An act concerning county boards established for the protection of the public health, and the registration of vital facts and statistics, in counties of this state," which was designed to embody in a single enactment former statutory provisions respecting county health boards, and to confer enlarged powers on these county institutions. One of the manifest effects of this legislation was to supersede township boards of health in all counties where there existed boards with the larger jurisdiction, and to substitute the powers of the county boards for those of the townships. But legislation on this subject—and there has been much of it in the establishment of these general and local bodies—ought not to be regarded as detracting from the general powers of municipal government, unless that legislative intent clearly appears. The legislation referred to in the charter of North Bergen township has no special reference to the public health. It authorized the township authorities to exercise local powers necessary to the preservation of good order and the comfort of the citizens. The health' laws of the state may bring within the cognizance of their constituted boards offenses prohibited by the town ordinance, because they injure the public health. Yet they are not necessarily antagonistic to the exercise by the municipality of power to regulate and repress noxious and offensive creations of a public character within the township. These powers may well exist together. The course of procedure marked out by the charter for violation of ordinances is by prosecution to be instituted before any justice of the peace of the county. A complaint in writing under oath, stating the offense and the ordinance alleged to be violated, is required to be filed with the magistrate. The defendant is to be brought in by summons or warrant. In certain cases, trial by jury may be demanded, and in all cases an appeal is given to the court of common pleas of the county.
The complaint filed in this case charged that the defendant, in the nighttime of a day named, carted, carried, and took into and within the limits of the township a load of night...
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