State v. Mundet Cork Corp.

• Decision Date: 21 January 1952
• Docket Number: No. A--50,A--50
• Citation: 8 N.J. 359,86 A.2d 1
• Parties: STATE v. MUNDET CORK CORP.
• Court: New Jersey Supreme Court

Page 359

8 N.J. 359

86 A.2d 1

STATE v. MUNDET CORK CORP.

No. A--50.

Supreme Court of New Jersey.

Argued Dec. 3, 1951.

Decided Jan. 21, 1952.

Nicholas Conover English, Newark, argued the cause for the appellant (McCarter, English & Studer, Newark, attorneys).

William L. Vieser Newark, argued the cause for the respondent (Herrigel, Bolan & Vieser, Newark, attorneys).

The opinion of the court was delivered by

BURLING, J.

This is an appeal by the Mundet Cork Corporation, a New Jersey corporation, defendant, from a judgment of conviction entered against it in the Union County Court upon a complaint charging it with violation of an air pollutant ordinance of the plaintiff, the Township of Hillside, a municipal corporation of this State. The appeal was addressed to the Superior Court, Appellate Division; prior to hearing there certification of the appeal to this court was granted on our own motion.

The defendant processes raw cork in the manufacture of cork board insulation, cork gaskets and similar products, a business which it has been conducting at its plant in Hillside since 1918. About 60 per cent of the output of the plant consists of products made from cork board which is the end result of a steam baking process. This process is described as one wherein quantities of ground cork are placed in metal containers or moulds, baking chambers, then compressed and subjected to contact with superheated steam, which, as it passes through the cork, causes the particles to become fused or sealed together. The steam is then drawn off through a water wash and passed into the air outside the plant through a gooseneck stack.

On August 28, 1929, the township committee of the plaintiff passed an ordinance entitled 'An Ordinance Regulating the Emission of Smoke from Chimneys of Buildings (Boilers, Engines, etc.) within the Township of Hillside,' which prohibited 'the emission of dense smoke from any smokestack or chimney connected with any stationary engine, steam boiler, locomotive * * * or other similar machine, or from any smokestack or chimney of any * * * establishment, or private residence using oil burners, or any building used as a factory, or for any purpose of trade, or from any tar kettle, or other machine, furnace or contrivance within the corporate limits of the Township of Hillside, which smoke contains soot or other substance in sufficient quantities to permit the deposit of such soot or other substance on any surface within the limits of said Township.' An ordinance adopted on July 22, 1931, amended sections 1 and 2 of the ordinance. The pertinent section 1(b) of the amended ordinance contains the following language: '(b) the production or emission within the Township of Hillside of smoke, fly ash or fumes, the density or shade of which is equal to or greater than No. 2 of the Ringelman Smoke Chart, as published by the United States Bureau of Mines, Or which is so dense as to be dimly seen through at the point of emission into the external air from any stack or open fire, except that of a locomotive for a period or for periods aggregating twelve minutes or more in any period of one hour, * * * is hereby prohibited.' (Emphasis supplied.)

Section 2 of the amended ordinance contains the following pertinent language: '* * * any owner or manager of any locomotive engine, steam roller, steam derrick or tar kettle, or other machine, furnace or contrivance within the limits of the Township of Hillside who permits or allows to be emitted from any such chimney or smokestack, locomotive, engine, steam roller, steam derrick, tar kettle or other machine, furnace or contrivance, or private residence using oil burners, smoke, fly ash or fumes in violation of Section 1 of this ordinance shall, upon receipt of notice in writing duly served upon him or them by the Smoke Inspector, without delay, file a plan or statement of proposed alterations to remedy the cause of such violation, and shall, within thirty days after the receipt of such notice, entirely eliminate said smoke, fly ash or fumes, as violate this ordinance, and upon failure so to do, upon conviction thereof in a court of competent jurisdiction, be fined not more than One Hundred Dollars ($100.00) * * *.'

The defendant was charged with a violation of section 1(b) and non-compliance with section 2 of the foregoing ordinance (as amended) by complaint in writing dated August 31, 1950. Judgment of conviction was entered against it in the Municipal Court of the Township of Hillside on October 7, 1950. The defendant appealed to the Union County Court. The appeal resulted in a trial De novo to the Union County Court, Law Division, without a jury; the judgment of conviction of the defendant by that court was filed on June 14, 1951 and the defendant appealed.

The appeal presents several questions, including construction of the ordinance aforementioned, proof of violation thereof, and constitutional rights of the defendant.

We consider first the question of construction of the ordinance. The premise of the defendant is that the ordinance is ambiguous and must be construed to exclude the vaporous emanation, exhaust steam from the cork baking process, expelled into the atmosphere from defendant's stack. This question must be resolved against the defendant.

The emphasis in this type of ordinance for centuries has been placed on smoke regulation. (In response to a petition by the citizens of London, a royal proclamation was issued by Edward I in England in 1306 to prohibit artificers from using sea coal, as distinguished from charcoal, in their furnaces, and making use of sea coal a capital offense. See Prentice on Police Powers, p. 35 (1894). In more recent generations other air pollutants have been subjected to control. See Regulation of Smoke and Air Pollution in Pennsylvania, 10 U.Pitt.L.Rev. 493 (1948--1949). Ordinances designed to regulate and control air pollution in the interest of the public health and welfare have been held valid and enforceable in this State. Board of Health of Weehawken Twp. v. N.Y. Central R. Co., 4 N.J. 293, 298, 72 A.2d 511 (1950). With this general background in mind we turn to examination of the meaning of the ordinance now before us. The defendant relies upon four rules of construction: that judicial construction of ordinances is governed by the same rules as judicial construction of statutes; that where an ordinance is ambiguous reference may be had to its title to determine the legislative intent of the enacting body; that penal ordinances are to be strictly construed; and that the doctrine of Ejusdem generis is pertinent and if applied would confine the meaning of the terms used in the amended ordinance ('smoke, fly ash, or fumes') to emissions caused by combustion. We are of the opinion that the foregoing terms of the ordinance in question are not ambiguous and therefore the rules of construction adverted to by the defendant are not appropriate. A penal ordinance or statute is to be strictly construed and will not be held to create a liability when the words of the enactment are not clear in fixing it, but where there is no ambiguity it is settled that there is no need to resort to this rule of construction. State v. Brenner, 132 N.J.L. 607, 611, 41 A.2d 532 (E. & A. 1945); Perrine Terrace Land Co. v. Brennan, 101 N.J.L. 487, 490, 128 A. 786 (Sup.Ct.1925); Board of Health v. Werner, 67 N.J.L. 103, 104, 50 A. 585 (Sup.Ct.1901); Camden and Amboy Railroad & Transp. Co. v. Briggs, 22 N.J.L. 623 644 (E. & A. 1850). The doctrine of Ejusdem generis, that a word is known from its associates, is an aid to construction where the expression is of doubtful meaning. Ford Motor Co. v. N.J. Dept. of Labor and Industry, 5 N.J. 494, 503, 76 A.2d 256 (1950); Edwards v. Mayor, etc., of Borough of Moonachie, 3 N.J. 17, 23, 24, 68 A.2d 744 (1949). Likewise, generality of language, or the natural import of the words employed according to their common sense, clearly and unambiguously expressed in the enacting clause of a statute or ordinance will not be restrained or narrowed by a particular reference in the title or preamble. City Affairs Committee v. Jersey City, 134 N.J.L. 180, 46 A.2d 425 (E. & A. 1946); Hackensack Golf Club v. Hackensack Improvement Commission, 107 N.J.L. 416, 153 A. 642 (Sup.Ct.1931); Den ex dem Lloyd v. Urison, 2 N.J.L. 212, 225--226 (Reprint pages 197, 210--211) (Sup.Ct.1807).

Smoke was the subject regulated by the ordinance adopted in 1929, but air may be polluted by the presence of varied foreign matter such as fluorine, fly ash, sulphur dioxide, oxide, and fumes. Compare 10 U.Pitt.L.Rev., supra, at p. 494. The word 'fume' in common parlance is defined Inter alia as a noun to be 'a smoky or vaporous exhalation, usually odorous,' and as a verb to mean 'to throw off fumes, as in combustion or chemical action; to rise up, as vapor,' and also 'to pass or move in fumes or vapors' and 'to throw off in vapor, or as in the form of vapor.' Webster's New International Dictionary (2nd ed. 1947) p. 1018. Noxious fumes, gases or vapors have long been considered in the category of public nuisances. See Blackstone's Commentaries (Browne's ed. 1897), pp. 432, 641; 39 Am.Jur., Nuisances, secs. 58, 59, pp. 340, 341. If we were to deprive the word 'fumes' as used in the amended ordinance of its natural import, we would render impotent the clearly and unambiguously expressed intention of the legislative body. Limitation of the meaning of 'fumes' as used in the ordinance to products of combustion would render its inclusion meaningless for the word 'smoke' includes visible products of combustion in the normally accepted sense. The references in the ordinance to sources of smoke, fly ash or fumes, including 'engine, steam roller, steam derrick or tar kettle or other machine, furnace or contrivance,' clearly are all inclusive and not restricted to apparatus used for combustion. We hold that a vaporous exhalation containing contaminants...