Digest of Legal Decisions.

TAYLOR

COMPILED BY MR. TAYLOR, ESQ.

POWERS OF BOARDS OF HEALTH. -1886.

The powers conferred by the Legislature upon boards of health of this State are to be employed to restrain and suppress public nuisances, not to legalize their creation or continuance. Their methods are designed to be auxiliary to the ordinary modes of public protection. Garrett v. State, 20 Vr. 94, 683.

ANIMALS-INFECTIOUS DISEASES- -COMMON NUISANCES.-1888.

The "Supplement to an act entitled 'An act to establish a State Board of Health,' approved March 9th, 1877," which supplement was approved March 12th, 1880 (Pamph. L., p. 322), makes animals with contagious or infectious diseases common nuisances, and authorizes their destruction by certain officials under certain conditions. The "Supplement to an act entitled 'An act to prevent the spread of glanders in horses,' approved March 31st, 1864," which supplement was approved March 12th, 1884 (Rev. Sup., p. 8), makes horses affected by glanders common nuisances, and authorizes their destruction by certain officers. Held, (1) these acts, so far as they relate to glanders in horses, are within the police powers of the State; (2) they are not within the prohibition of the fourteenth amendment to the federal constitution, because, although they authorize the abatement of such nuisances in advance of a judicial adjudication of the fact of nuisance, yet they do not make the determination of the officials as to that fact conclusive, and only permit their acts, in abating the nuisance, to be justified by proof of the actual existence of such nuisance; (3) the conditions under which such officials may act, under the act of 1880, are mere limitations of their power for the benefit of the

property-owner, and their adjudication that such conditions exist will not protect them unless the existence of the common nuisance is shown. Newark, &c., Horse Railway Co. v. Hunt, 21 Tr. 308.

COUNTY BOARDS OF HEALTH-ABATEMENT OF NUISANCES.-1890.

The ninth section of the "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" (Rev. Sup., p. 344), was not intended to clothe county boards of health with the functions of the attorney general in cases of public nuisance, but to authorize them to secure for individuals that protection which equity would afford to those persons upon their own suit. Board of Health, &c., v. New York Horse Manure Co., 2 · Dick. 1.

IMPLIED POWERS OF BOARDS OF HEALTH.-1892.

The board of health of the city of Newark passed a resolution granting a permit to the Newark Sanitary and Manufacturing Company to carry on the business of night scavengering, and designating certain lands of the sanitary company within the city limits as the place for the deposit, and final disposition by manufacture, of the night-soil. The prosecutors attack the legality of this resolution upon the ground that it will injure them specially by causing a diminution of the value of their real estate. Held, (1) that the prosecutors were not injured by so much of said. resolution as concerned the permit for night scavengering; (2) that under the act establishing boards of health (Pamph. L. 1887, p. 80), the regulations required to be passed by ordinance were such as prescribed general rules with respect to the several matters entrusted to these boards, and that a particular permit authorizing the doing of that which had already been authorized by ordinance might be granted by simple resolution; (3) that the power to designate a place for the deposit of night soil, although not given to boards of health in express terms, is necessarily incident to the general jurisdiction of such bodies over cesspools and the removal of their contents; (4) where a court of law is asked to annul the otherwise lawful action of a municipal body upon

the ground that a nuisance is thereby created, a mere apprehension by prosecutors of such a result injurious to their property will not entitle them to any remedy. Quære. As to the right of a prosecutor to attack municipal action upon the ground that it will diminish the salable value of his wife's real estate. Courter v. Newark, 25 Vr. 325.

NUISANCE.-1894.

The board of health in the township in which a nuisance exists or is carried on has authority, and it is its duty, to abate such nuisance, either on its own motion or by the aid of the court, though it is only hazardous to the health of individuals residing in another township. Board of Health v. Lederer, 7 Dick. 675.

LIMITS OF JURISDICTION OF BOARDS OF HEALTH.-1895.

The authority conferred by the twenty-eighth and twentyninth sections of the act of March 31st, 1887 (Pamph. L. 1887, p. 80), upon local boards of health to maintain actions in this court to enjoin nuisances, is confined to nuisances arising and maintained within the territorial limits of the complaining board. For nuisances arising and maintained outside such territorial limits the remedy is by the action of the State Board of Health, under the act of May 24th, 1894. (Pamph. L. 1894, p. 495.) Board of Health v. East Orange, 8 Dick. 498.

BOARD OF HEALTH-POWERS-NUISANCE.-1898.

(1) Under the provisions of the acts of February 22d, 1888, and March 29th, 1892, the board of health of Asbury Park has no power to restrict the owners of a stable to the mode of laying a stable floor prescribed by an ordinance of the board. The owners have the alternative of resorting to any other method which will secure the sanitary condition of the stable, but by departing from the prescribed method they take the risk of creating a nuisance; (2) If the stable is a nuisance the owners must be prosecuted

for maintaining a nuisance and not for failing to comply with the plans specified in the ordinance. Board of Health of Asbury Park v. Morford, 39 Atl. Rep. 706.

JURY TRIAL-VIOLATION OF HEALTH ACT.-1898.

(1) A jury trial is not permitted by the Health act of 1887. Gen. Stat., p. 1638, § 18. (2) To sustain a judgment under that act there must be a conviction in the form prescribed by the supplement of 1888. Gen. Stat., p. 1642, § 41. Board of Health of Woodbridge v. McEwen, 39 Atl Rep. 909.

ORDINANCE-PLEADING

-NUISANCE- —ABATEMENT.-1898.

(1) A bill alleging the passing of an ordinance declaring a nuisance need not allege the observance of all proper formality in its passage, but merely that the ordinance exists. (2) A bill alleging the maintenance of a large hog-pen in a thickly-settled part of a village, which contains offensive matter and emits foul odors, so as to be detrimental to the health of the people living in the neighborhood, and compels them at times to keep their windows and doors closed because the stench is so unbearable, besides being hazardous to their health as well as that of the passing public, charges the existence of a public nuisance, which act (1887), section 28 (Gen. Stat., p. 1640), authorizes the board of health to sue to abate, independent of any code of ordinances of its own. Board of Health of Raritan Town v. Henzler, 41 Atl. Rep. 228.

LICENSE-MILK VENDERS.-1899.

A license fee of $2, required of milk venders by an ordinance of the board of health of Hoboken, is valid. It is not for the purposes of revenue, but is a reasonable compensation for the expense of issuing license and making the necessary inspection of milk. Board of Health of Hoboken v. Blanke, 44 Atl. Rep. 847.

CERTIORARI DISMISSAL--CONSTITUTIONAL LAW.-1900.

The prosecutor sued out a certiorari to reverse a judgment rendered against him on a complaint which purported to rest on a penal statute, and assigned various reasons for reversal, the first being that the complaint failed to show the commission of an offense within the statute, and others being that the statute was unconstitutional. Afterwards, by stipulation, he confined his objections to the constitutional questions. Held, that, as the complainant did not present a case within the statute, the constitutional question should not be considered and the writ should be dismissed. Board of Health of Newark v. Forgerson, 45 Atl. Rep. 783.

VIOLATION OF ORDINANCE-CONVICTION SET ASIDE.

1. A conviction of a defendant in a proceeding for the violation of a borough ordinance, which finds him "guilty of violating section 76 of the ordinance," is not good. The conviction must be of the thing interdicted and made an offence by the ordinance, not of violating the ordinance itself.

2. An ordinance which imposes a penalty for failure to file with the secretary of the board of health a plan of the contemplated plumbing work, "signed by the owner," will not be held to impose a liability to such a penalty upon the plumber who may be engaged by the owner to do the work. The duty imposed by the ordinance is cast upon the owner, and he only is liable for such failure.

3. A penal ordinance will not be held to create a liability where the words are not clear in fixing it.

(Syllabus by the court.)

Certiorari by the State, on the prosecution of George H. Werner and others, against the board of health of the borough of Glen Ridge, to review conviction for violation of an ordinance. Conviction set aside.

Argued June term, 1901, before Justices Van Syckel, Fort and Garretson.