Zullo v. Board of Health of Woodbridge Tp., A--115

• Decision Date: 12 May 1952
• Docket Number: No. A--115,A--115
• Citation: 88 A.2d 625,9 N.J. 431
• Parties: ZULLO et al. v. BOARD OF HEALTH OF WOODBRIDGE TP.
• Court: New Jersey Supreme Court

Page 431

9 N.J. 431

88 A.2d 625

ZULLO et al. v. BOARD OF HEALTH OF WOODBRIDGE TP.

No. A--115.

Supreme Court of New Jersey.

Argued April 7, 1952.

Decided May 12, 1952.

Nathan Duff, Perth Amboy, argued the cause for the appellants.

Maurice C. Brigadier, Jersey City, argued the cause for the respondents (Joseph M. Feinberg, Rahway, attorney).

The opinion of the court was delivered by

VANDERBILT, C.J.

Pursuant to an ordinance passed by the defendant board of health, the plaintiffs made application for a license for a trailer camp, but their application was denied. They thereupon instituted this proceeding in lieu of a prerogative writ, seeking (1) an order compelling the defendant to issue the license; (2) a review of the resolution of the board denying their application, and a determination that the resolution was illegal and void; and (3) a determination that the ordinance under which the board purported to act was likewise illegal and void. At the trial before the introduction of any evidence, it appearing that the facts were not in dispute, the court suggested the desirability of having a ruling at the outset on the validity of the ordinance of the defendant board of health which purported to license and regulate trailer camps, prior to determining whether or not the defendant board had acted properly in denying the plaintiffs a license. In accordance with the court's suggestion the plaintiffs made a motion for judgment on the grounds that the ordinance should have been enacted by the governing body of the municipality rather than by the defendant board of health and that the ordinance improperly gave the board untrammeled discretion in respect to licenses for a trailer camp. The motion was granted and judgment was accordingly entered in favor of the plaintiffs, setting aside the resolution of the board denying the plaintiffs' application and invalidating the ordinance passed by the defendant board. From this judgment the defendant appealed to the Appellate Division of the Superior Court and we have certified the appeal on our own motion.

Local boards of health are governmental agencies created in every municipality under statutory mandate, R.S. 26:3--1, N.J.S.A., for the purpose of exercising locally the inherent police powers of the State with respect to matters pertaining to public health. Their powers in this respect are broad and the general grant thereof is to be found in R.S. 26:3--64, N.J.S.A., and chapter 177, Laws of 1947 (N.J.S.A. 26:1A--9). The enumeration of the specific powers and duties of local boards of health to be found in R.S. 26:3--31, as amended by chapter 211, Laws of 1946 (N.J.S.A. 26:3--31), has been held not to be a limitation upon the general powers of such boards and there is no more reason to consider that the numerous other express grants of particular powers to be found in a number of statutory provisions impose limitations on their general powers. In Bd. of Health of Weehawken Tp. v N.Y. Central R. Co., 4 N.J. 293, 298--300, 72 A.2d 511, 513 (1950), this court stated:

'The function of these agencies (local boards of health) is to advance and secure the public health by means and measures reasonably appropriate to that end. The preservation of the public health is a vital element of the police power inherent in sovereignty.

'The power thus exercised (to regulate and control air pollution by barring escessive emission of dense smoke) is within the grant contained in R.S. 26:3--64, N.J.S.A., and ch. 177 of the Session Laws of 1947, to be found also in N.J.S.A. 26:1A--9, N.J.S.A. The inherent general authority to conserve and protect the public health thereby conferred and recognized is not curtailed by the specific enumeration of R.S. 26:3--31 * * *. The cited act of 1947 is affirmative legislative acquiescence in the judicial finding of the general power in the pre-existing statutes.

'The local boards of health in the exertion of the authority thus conferred exercise, not an administrative function, but rather a portion of the police power to serve the public health. They are 'governmental agencies by which the police law of the state is locally exerted' * * *.'

Trailer camps, because of their particular nature and relation to the public health, safety, morals and general welfare, have frequently been the subject of special regulation by appropriate local governing bodies, see Edwards v. Mayor, etc., of Borough of Moonachie, 3 N.J. 17, 68 A.2d 744 (1949); Michaels v. Twp. Committee of the Twp. of Pemberton, 3 N.J.Super. 523, 67 A.2d 324 (1949); Annotation, 22 A.L.R.2d 774--802 (1952). We have no hesitancy in stating that they are the fit subject and a proper class to be subject to special regulation by local boards of health in matters pertaining to or affecting health. In this regard we are not unaware of R.S. 40:52--1, as amended by chapter 425, Laws of 1948 (N.J.S.A. 40:52--1), to the effect that:

'The governing body (of a municipality) may make, amend, repeal and enforce ordinances to license and regulate:

'd. Hotels, boarding houses, lodging and rooming houses, trailer camps and camp sites, and all other places and buildings used for sleeping and lodging purposes, restaurants and all other eating places, and the keepers thereof; * * *.'

This statutory grant of power to local governing bodies as distinct from local boards of health cannot be construed, however, as placing any limitation upon the legitimate powers of the latter to regulate matters pertaining to health at the places named. Rather it is the grant to the governing bodies of powers which to an extent may overlap and be concurrent with those of the local boards of health, but which to a larger extent are exclusive because not limited to matters of health and because, as will be pointed out subsequently, regulation by licensing is expressly permitted.

Being of the opinion, therefore, that local boards of health have the power within their particular sphere of activity to regulate trailer camps, we must next examine the question of whether or not the particular ordinance in question is a proper exercise of that power. For this purpose it will be necessary to examine the rather lengthy ordinance in some detail. Section 1, in part, and sections 2, 3, 23 and 24 in their entirety relate to the licensing of trailer camps and the revocation, suspension and transfer of such licenses, and we are of the opinion that they are Ultra vires the defendant board of health. The power to license and to levy fees therefor is not inherent in local agencies exercising by delegation a portion of the State's police power and in the absence of statutory grant does not exist in a municipal corporation or its local board of health, Edwards v. Mayor, etc., of Borough of Moonachie, supra, 3 N.J. 17, 21, 68 A.2d 744 (1949). Such a statutory grant of power does not here exist. R.S. 26:3--31, as amended (N.J.S.A. 26:3--31), and chapter 275, Laws of 1948 (N.J.S.A. 26:3--31.1) provide for the issuance of licenses by local boards of health in certain specified instances which cannot be extended by implication to permit the licensing of trailer camps. R.S. 26:3--32, N.J.S.A., provides that local boards of health in cities having a population in excess of 100,000 'may grant and regulate licenses and permits incident to health matters and charge a reasonable fee for any such license or permit.' But the defendant Township of Woodbridge is concededly not a city of over 100,000 population and so this statute does not constitute a grant of the licensing power to its board of health, but on the contrary indicates a legislative intent to deny the licensing power of boards of health in all but the largest municipalities. And R.S. 40:52--1, as amended, (N.J.S.A. 40:52--1), previously adverted to, indicates a similar legislative intent to grant the power to license trailer camps to the governing body of a municipality rather than to the board of health. The apparent statutory scheme in cities of 100,000 population or less is for the local governing body to have exclusive control over the setting up and existence of trailer camps, but that it share jurisdiction with the local board of health in regulating their operation and maintenance.

Section 2 of the subject ordinance which, among other things, provides for a $100 license fee to be 'paid into the Township Treasury as revenue' is invalid for the further reason that the power to tax is wholly statutory and no such power is vested in local boards of health. We are not called upon here to determine whether or not the fee would be excessive if the defendant board of health had had the power to license and had not specifically provided that the fee was for revenue. Cf. Edwards v. Mayor, etc., of Borough of Moonachie, supra, 3 N.J. 17, 68 A.2d 744 (1949); Michaels v. Twp. Committee of the Twp. of Pemberton, 3 N.J.Super. 523, 67 A.2d 324 Law Div. (1949); Annotation, supra, 22 A.L.R.2d 774, 786 (1952).

The validity of section 3 of the...